Augsburg Prosecutor Rejects Idea of Making Deal with Gurlitt, Harvard and LACMA Beckmann Paintings Highlight Difficulty Ahead Without Agreement

Art Law Report 5 February 2014
By Nicholas O'Donnell

ust days after attorneys for Cornelius Gurlitt floated the idea of discussions with survivors and heirs for a possible resolution to the questions about the artworks found in his apartment two years ago that are suspected of having been stolen or sold under duress during the Nazi era (and after the prosecutor was ordered to make a full list available to journalists), the prosecutor in charge of the investigation categorically rejected the possibility of any deal with Gurlitt.

Reinhard Nemetz has been quoted my multiple sources as saying: “It is very clear that there will be no deal, affecting the investigation set against the return of the picutrs, or anything similar.” Nemetz insisted on keeping the questions of ownership of the pictures independent from the investigation of the state prosecutor, each of whcih must be kept „clearly separate from each other.” More generally, Nemetz added „if an accused contributes to the examination of the facts and make amends with any damage, then that has to be considered.”

This is a significant development for many reasons. First, it displays precise the kind of narrow thinking that led to the situation in the first place. Gurlitt is either suspected or accused of tax evasion, and he has clear privacy rights in that investigation that may well have been compromised (the basis for his recent complaint on that score). But the state prosecutor has still not clarified what legal mechanism justified the seizure of the paintings. If, as he says, the issues must be kept separate, then by that logic he would have to return all the paintings to Gurlitt, who would then have to contend with whatever claims against him followed.

Nemetz proposes no such thing, of course, nor does anyone else. The prosecutor’s statements underscore what is likely a simmering tension between the office that found the paintings in the first, place, and the national government that has set up the Task Force to assess the provenance of the works of art.

The consequences of this defiant tone are many. If Nemetz leaves Gurlitt no avenue to resolution, then Gurlitt will presumably use whatever leverage he has to protect himself and what he believes is his property. Without even the possibility of an agreement, what is the point of the Task Force? It is reasonably likely that within a few months several hundred heirs could know of a possible claim. There is no serious question that a global resolution would be better than hundreds of lawsuits, whether for those claimants, for Germany, or Gurlitt himself (who, it is widely believed, has unquestioned title to roughly a third of the artworks).

Anyone downplaying the complications of piecemeal claims should consider two examples, both involving paintings by Max Beckmann Bar, Braun now in Los Angeles and Self Portrait, now in the Busch-Reisinger Museum at Harvard. Both implicate recurring questions around works that were seized as “degenerate” by the Nazis: were the works misappropriated from German museums? Were the works in those museums in the first instance because of thefts from or sales under duress by Jewish collectors?

As reported in the Art Newspaper, and then more recently in detail by the Frankfurter Allgemeine Zeitung, Bar, Braun, was donated to the Los Angeles County Museum of Art one day after the revelation by Focus of the Gurlitt seizure and story.

The FAZ fleshes out the complicated story further. Bar, Braun was identified as one of the paintings returned to Hildebrand Gurlitt by the U.S. High Command from the Central Collecting Point in Wiesbaden, but not among the roughly 1,280 found in the Schwabing apartment last year. Three years after Hildebrand died in a car accident in 1956, Bar, Braun surfaced in the Stuttgart gallery of Roman Norbert Ketterer. A 1976 catalogue raisonnée lists the work as being part of a Ketterer auction, 1960, “not sold.” It appears in a few other sale catalogues, until a Sotheby’s sale in 1984 in London, where it once again apparently found no buyers. Three years later, Marvin Fishman of Milwaukee bought it at a Sotheby’s auction in Munich for 550,000 DM. It was then sold some thirteen years later to Robert Looker, who died in 2012 and whose heirs left the painting to LACMA.

But how did Hildebrand Gurlitt come to have it in the first instance? Beckmann spent most of the war in Amsterdam. He was not Jewish, and was not arrested, but his art was deemed “degenerate” and much of it seized as such (thereafter permitted only to be sold by authorized dealers like H. Gurlitt). Beckmann was quite prolific in this phase. Gurlitt and art historian Erhard Göpel apparently visited Beckmann in Amsterdam between September 13 and 14, 1944, during which time Bar, Braun was sold to them. As the FAZ reports, no one can really speak to whether the painting was shipped under duress or whether it would have been more like a pre-1933 sale.

In trying to get his collection back after the war, Hildebrand Gurlitt referred to Bar, Braun as a gift from Beckmann. Was it gifted and not sold? Mayen Beckmann, Max’s granddaughter, considers it plausible. Max Beckmann, after all, publicly supported Hildebrand’s efforts to avoid the post-war De-Nazification process. By contrast, reviewing discrepancies in the dating of the work in later exhibitions, however, Willi Korte regards it in the FAZ article as a clear case for restitution.

As for the Self Portrait, less is known so far.

But this much is clear: the painting appears in the Victoria & Albert’s recently published copy of the official (and licensed) Degenerate Art register composed by the Nazi authorities themselves as having come from the National Gallery in Berlin, and sold by Karl Buchholz, another authorized “degenerate art” dealer (with my highlight).

Harvard in turn acquired it from American-German dealer Curt Valentin, who had once worked for Buchholz, for $400 in 1941. Here, as is so often the case, the question is how to read this ambiguity. Was the painting wrongfully taken from the Berlin museum? How did it get there in the first place?

Consider this then: the foregoing examples are merely two paintings, visible to the public, not even the hundreds of works accessible for the moment only to the Task Force. These are the kinds of questions that would have to be resolved in each and every case, likely in entirely separate proceedings. It may well come to that, but taking a deal off the table now all but assures it.
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