Holocaust historians blast MFA stance in legal dispute; Insist pressures of era led to painting's sale

Boston Globe 28 May 2008
By Geoff Edgers


An Austrian woman says she is the rightful owner of Oskar Kokoschka's painting 'Two Nudes (Lovers).' An Austrian woman says she is the rightful owner of Oskar Kokoschka's painting "Two Nudes (Lovers)." (Museum of Fine Arts)

Holocaust historians are criticizing the Boston Museum of Fine Arts for its stance in an escalating legal dispute over the ownership of a valuable 1913 painting. The work, Oskar Kokoschka's "Two Nudes (Lovers)," has hung at the MFA almost continuously since 1973.

The dispute began in March 2007, when attorneys for Claudia Seger-Thomschitz, an Austrian woman who says she is the rightful owner of "Two Nudes," approached the museum demanding its return. Lawyers for Seger-Thomschitz, an heir to Jewish art collector Oskar Reichel, say Reichel sold the painting under duress in Nazi-occupied 1939 Vienna.

But the MFA says that Reichel sold the painting voluntarily and that it never passed through Nazi hands. After the museum conducted its own research into the painting's history, it presented its findings to Seger-Thomschitz's lawyers and requested that she drop her claim for restitution. When she refused, the museum filed suit against her in January in US District Court for the District of Massachusetts to establish legal title to the painting. In so doing, it became one of a handful of US museums trying to establish their ownership of disputed artworks through the courts.

"Based on the facts we know, the sale was a freely made sale," said Katherine Getchell, MFA deputy director, who declined to provide details of the research that led museum officials to conclude that the Kokoschka sale was voluntary. Our lawsuit "is about making sure the painting ends up in the right hands."

Seger-Thomschitz is preparing to file a counterclaim tomorrow. The case has garnered little public attention, but leading Holocaust historians from around the world, at the Globe's request, reviewed the museum's court filing and were particularly critical of one of the MFA's main arguments: that Reichel's sale to an art dealer who later moved to New York was, as the MFA suit contends, not "by force as a result of Nazi persecution."

In 1938, Jews in Nazi-occupied Vienna were forced to list all their possessions and were then systematically stripped of that property, the historians say. Reichel's business and home were confiscated during World War II, and one of his sons was sent to a concentration camp, where he died. Reichel's wife was deported to a camp, but survived.

"To suggest, at that period in Vienna, that there was no pressure is ridiculous," said professor Deborah E. Lipstadt, a Holocaust historian and former director of the Tam Institute for Jewish Studies at Emory University. "It's ludicrous."

Sophie Lillie, an art historian in Vienna whose research has detailed the looted art collections in the Austrian city, said Reichel would have had no choice but to sell the painting during that time.

"After 1938, he would have had no income," she said. "No apartment. No livelihood. No nothing. So of course people sold whatever they had in order to liquidate to raise cash."

The museum said that Reichel sold the painting voluntarily to another Jew, Viennese art dealer Otto Kallir, and that Reichel had previously consigned "Two Nudes" to Kallir for sale three times dating back to 1924. "The painting was never confiscated by the Nazis, was never sold by force as a result of Nazi persecution, and was not otherwise taken from Dr. Reichel," the MFA lawsuit states.

"Two Nudes" is a self-portrait with Alma Mahler (wife of the composer Gustav Mahler), with whom the artist had an affair. Other Kokoschka paintings have sold at auction in recent years for as much as $1 million.

John J. Byrne Jr., a Washington, D.C., lawyer who is representing Seger-Thomschitz, said he and his client approached the MFA as soon as they had completed their own investigation. He provided the Globe with some of the documents that will be in the counterclaim he is filing against the MFA. These include Reichel's property declaration to the Nazis in June 1938, in which "Two Nudes" is listed in an itemized appraisal, and a 2003 report by Viennese authorities laying out the persecution of the family. The Wien Museum in Austria returned several works of art by Anton Romako to Seger-Thomschitz after the report was issued, he said.

Another art restitution dispute could also have an impact on his client's case: Chestnut Hill philanthropist David Bakalar has filed suit in District Court in New York to get a ruling recognizing his ownership of a 1917 Egon Schiele watercolor he purchased from Kallir in 1963.

Raymond Dowd, a New York lawyer who represents those challenging Bakalar's ownership in the ongoing Schiele case, said research done for his clients outlined the complicated background of Kallir. The art dealer had left Nazi-occupied Austria for Paris by the time of the Kokoschka sale in February 1939 and traveled to New York later that year.

"Otto Kallir had Nazi connections and he used them," said Dowd. "How is it that the MFA says that a Jew could walk out without any permission? That's just Holocaust denial."

Dowd also pointed to research by professor Jonathan Petropoulos, a Holocaust historian at Claremont McKenna College in California, which showed that Kallir facilitated the sale of a Ferdinand Waldmüller painting between a Nazi collector and a Nazi museum official who intended the work for Third Reich propaganda minister Joseph Goebbels - who in turn planned to give it to Hitler.

Otto Kallir died in New York in 1978. His granddaughter, Jane Kallir, still runs the Galerie St. Etienne in Manhattan. She said Dowd is trying to smear her grandfather's name.

The Waldmüller sale, she said, did take place, but Kallir had no choice. "You have a Nazi museum director and a Nazi owner telling my grandfather, 'You sell this picture to Hitler or else,' " Jane Kallir said. "So he does, and he doesn't make one shilling off the sale."

Kallir met with the MFA's researchers to provide them with her account of the sale of the Kokoschka painting.

"The historical documents demonstrate a long-running art dealing relationship between the Reichels and my grandfather," Kallir said. "It was not a situation where Reichel suddenly said, 'I need to get these off my walls and turn them into cash.' It was a situation in which he and my grandfather were able to reach an arm's-length deal on a group of paintings that had been for sale since the 1920s."

The MFA based its case on nine months of research by Victoria Reed, the museum's curatorial research fellow for provenance, who traces the history of ownership of works of art. Despite repeated requests, the MFA would not make Reed available for comment or share details from her investigation that led the MFA to the conclusion that the Kokoschka sale was voluntary.

That raised questions with one Holocaust historian who had, in an interview with the Globe, initially spoken out in support of the museum's position when the MFA filed its lawsuit in January.

"Why can't they share it?" said Ori Soltes, cofounder of the Holocaust Art Restitution Project in Washington, D.C., when contacted recently by the Globe. "I can't imagine a scenario in which it would blow their case. The only scenario is if it's not legitimate."

In January, the MFA released a statement from director Malcolm Rogers that read, in part: "We take matters of provenance very seriously and follow the highest standards of professional practice in responding to claims for works in the MFA's collection."

Asked to respond to questions raised by the historians - none of whom filed depositions in the case - Getchell said the MFA has nothing to hide, but it will not release material from its investigation because the case is in litigation. The museum issued the following statement: "The results of the museum's research are clearly outlined in its legal filing, which is publicly available and was shared with The Boston Globe. The MFA presented all background documentation to the claimant's counsel, but chose not to provide it to the Globe because this case should be resolved through the court system and not the media."

Geoff Edgers can be reached at
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