Louisiana court affirms rightful owner in Kokoschka claim

The Art Newspaper 27 August 2010
By Martha Lufkin

An appeals court in Louisiana has ruled that a painting by Oskar Kokoschka belongs to its current owner, dismissing a Nazi loot claim. The decision by the Fifth Circuit federal appeals court on 20 August affirms the trial court’s judgment that Sarah Dunbar, who inherited Kokoschka’s “Portrait of Youth” (1910) from her mother in 1973, owns it. The claimant, Claudia Seger-Thomschitz, had argued that the painting was confiscated from her father-in-law in a time of Nazi persecution in Vienna in 1939. In response to the allegation, Ms Dunbar sued for a court declaration confirming her title to the work.

The lower court found that Ms Dunbar owns the painting because she had obtained title under Louisiana law by holding it openly and continuously for ten years, and in addition, because it was too late under state law for Seger-Thomschitz to sue. There was no material factual dispute that Ms Dunbar owned the work, the lower court said; after the war, the owner’s family sought compensation for other art and property lost in Nazi era, but never for the Kokoschka.

Appealing the lower court decision, Seger-Thomschitz presented the new argument that Louisiana law should be disregarded in light of the Terezin Declaration, a document promulgated at the Prague Holocaust Assets Conference of June 2009. According Seger-Thomschitz, the Terezin Declaration expresses a preference to adjudicate Nazi loot claims on their merits, rather than letting such claims be dismissed because of time-bars under state law.

But the court said that the Terezin Declaration is a non-binding executive agreement, and does not preempt Louisiana law, under which Ms Dunbar owns the painting.
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