It's a lot harder to press the case in the USA for the return of looted art because of the laws.
BERLIN – At New York's Museum of Modern Art, two oil paintings by German expressionist George Grosz are viewed by millions every year visiting the Manhattan institution.
The two works, as well as a watercolor in storage, were stolen from the artist who fled the Nazis in 1933, his heirs say. They want them back, but MoMA has said no and U.S. courts backed up the museum's argument that the statute of limitations on retrieving such art had lapsed.
Lilian Grosz, the artist's daughter-in-law, had hoped the "moral ramifications" of the request would have been a mitigating factor on her family's side.
"Unfortunately, that did not carry the day," she said. "We were, of course, very disappointed."
The Grosz family's fight illustrates an overlooked and unexpected aspect of the battle to reclaim stolen property and art after wide-scale looting by Nazis during World War II: It is often more difficult for those seeking restitution to win it in the USA than in Germany or many other European countries, experts say.
"U.S. museums have done everything possible to avoid judicial review of their determinations with respect to Holocaust-looted art claims," said Charles Goldstein, a New-York-based attorney who specializes in restitution for Nazi-looted art.
The Groszes' experience is not unique. The issue of looted art received renewed interest in November after the announcement that a stash of more than 1,400 paintings, many from well known masters and stolen from art dealers, was found in Munich.
The heirs of the original owners demand their return. In Germany they have a much better chance than in the USA, where the legal system leans in favor of those holding contested art.
Countries such as Germany, Austria, France, the United Kingdom and the Netherlands all have national commissions that act as arbitrators in cases of allegedly Nazi-seized art. These commissions take only the merits of a given case into account – not individual laws of the host country.
The creation of the commissions stems from the 1998 Washington Conference Principles on Nazi-Confiscated Art, a non-binding international agreement that the United States and dozens of other nations have signed that calls for openness and transparency in the recovery of Holocaust-era art.
The pact says that "consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era" and that parties to the agreement are "encouraged to develop national processes to implement (the conference's) principles."
The United States has not created a commission to handle the claims. Most U.S. museums are private rather than government-owned, so they don't have to make public what they have if they don't want to.
People who suspect a U.S. museum of having looted art must go through the courts, which usually support the claims of the possessors of the artwork, experts say.
"Our museums in the U.S. are much more secretive and don't really research or publish the knowledge about their collections," said Raymond Dowd, a New-York-based lawyer who has represented the Groszes and other families trying to reclaim art. "The Germans are much more open, and they have the additional pressure of national commissions that were agreed to by the Washington principles."
In the Grosz case, his heirs seek return of three works. Self-Portrait With a Model portrays the artist painting a voluptuous model standing in front of a mirror. The Poet Max Herrmann-Neisse is a portrait of the writer, aged and slumped in a chair. Republican Automatons is a watercolor depicting clockwork automatons standing on a city street, one of which is holding a German flag.
George Grosz was a German artist whose drawings of Berlin life in the 1920s often depicted its seamier side. He was anti-Nazi and fled to America before Hitler came to power out of fear that he would be persecuted as a degenerate artist. He left behind with his art dealer artworks that eventually turned up at MoMA in the 1940s and 1950s – two from private purchase and one that was donated.
Grosz himself saw The Poet Max Hermann-Neisse hanging in MoMA in 1953. He wrote his brother-in-law that the museum was displaying a painting stolen from him, but he made no effort to have it returned and died in 1959.
His son, Martin, and his daughter-in-law, Lilian, investigated the paintings and made their first formal request to have them returned in 2003. They argued that Grosz's Jewish art dealer had been coerced into selling or abandoning the paintings and that subsequent paperwork was falsified to make the provenance of the paintings appear legitimate.
MoMA's experts concluded that the sales had been made fairly. The Groszes sued.
Lilian Grosz said their lawyers had warned them that the case would face an uphill battle. When a court dismissed the lawsuit in 2011 on grounds that they had been too slow to file their claim, it nonetheless came as a surprise to the family.
"You know the song, 'Whatever Lola Wants, Lola gets'? Whatever MoMA wants, MoMA gets," Lilian Grosz said.
In an e-mailed statement, the MoMA said it has proper ownership and did nothing wrong.
"After years of extensive research, including numerous conversations with Grosz's estate, it was evident that we did, in fact, have good title to the works by Grosz in our collection and therefore an obligation to the public to defend our ownership appropriately," the museum stated.
Looted art does get returned in the USA. The Association of Art Museum Directors' lists on its website many examples – paintings, plaques, textiles and other objects returned by MoMA and other museums.
Goldstein says U.S. museums have a legal advantage not found in many other nations. In most cases, it's not possible to bring legal claims in the USA for alleged looted art more than three years after it was stolen, he says, which isn't reasonable given the violent chaos in Europe during the Holocaust era.
"You have to have a different standard of proof for this kind of looting, particularly because it was 70 years ago," Goldstein said.
There are at least two possible solutions to this problem, experts say. One is an independent body set up to evaluate claims, like those in Europe.
"There's a big move in America to try to set up an art commission," said Anne Webber, co-chair of the London-based Commission for Looted Art in Europe. "Under (the Washington principles), you're supposed to set up a national claims process, and I think people feel if there were to be a national claims process in the States, at least there would be a consistent way of dealing with claims and museums would not be able to go to the courts and get claims dismissed that way without proper consideration of them."
The other option would be legislation addressing the statute of limitations issue at the federal level. California passed a law to expand the statute of limitations for Nazi-looted art, but it was struck down in court in 2009 on the grounds that it infringed on federal powers.
"There's no reason why Congress couldn't do it," Goldstein said. "Simply provide that claims for looted art in the period of 1933 to 1945 can be brought for another, say, 10 years."
Randy Schoenberg, a Los Angeles-based lawyer, said that laws, not non-binding international agreements, are the only way to ensure justice is done.
"The Washington principles are a red herring and not worth mentioning," he said. "If it's not a law, it's not a law."
Lilian Grosz says a renewed focus on the U.S. laws was the one good thing to come of her family's lost battle.
"What is happening, which I'm happy about, is it keeps getting brought up over and over again," she said. "It's a dog that won't just sit still and lie down and be good."