Last week’s decision to reject an appeal over the ownership of Picasso’s The Actor was a missed opportunity to clarify the limitations of the 2016 HEAR Act
Pablo Picasso's The Actor (1904-05) now hangs in the Metropolitan Museum of Art
The US Supreme Court failed Holocaust victims and their families last week, when it refused to hear an appeal over the ownership of Picasso’s $100m masterpiece The Actor, which was donated to the Metropolitan Museum of Art in New York in 1952, and still hangs there. The case would have provided much-needed clarity on limitations for reclaiming Nazi-looted art under the Holocaust Expropriated Art Recovery Act (HEAR Act), which took effect in 2016 and opened a six-year window for victims and their heirs to pursue art lost due to Nazi persecution from 1933-1945.
Greater clarity would have been especially helpful since the HEAR Act applies to an estimated 100,000 still-missing works of art, valued at around $10bn, which were stolen or sold under duress. But the courts, so far, have interpreted it narrowly.
For example, in the case involving The Actor, an appellate court in 2019 ruled that the nearly six-decade delay in seeking the painting’s return was unreasonable and would have put the Met at an unfair disadvantage. The appellate court also stated it was implausible the original owners were unable to make a claim for the painting before 2010 because it was a well-known “masterwork” rather than an obscure piece of art. But the ruling failed to acknowledge that any case brought under the HEAR Act inevitably puts a museum or collector in the difficult position of having to prove a work of art’s chain of ownership dating back potentially more than 85 years.
Art recovery cases are expensive, difficult to pursue, and require years of litigation. For those reasons, lawsuits will almost certainly focus on high-dollar works of art – pieces that justify the time and money required to litigate these cases. And in the initial decades after the end of the war, many Holocaust victims and their heirs may not have been aware of the channels available to seek the recovery of their art. They also may have lacked the resources and documentation needed to pursue their property. Today, that has changed, as the internet has become an invaluable tool in this process.
In the case of The Actor, the lawsuit was brought in 2016 by Laurel Zuckerman, the great-grand-niece of the German-Jewish businessman Paul Leffmann who originally owned the 1904-5 Picasso painting. The painting had been a centerpiece in Leffmann’s dining room in Germany in the early 1930s, but later it became a ticket to safety. After Leffmann and his wife fled Nazi Germany for Italy in 1937, the couple was forced to sell The Actor the following year at a “fire sale price”, according to court documents, to fund their travel to Switzerland and then Brazil, where they waited out the remainder of the war.
The 1938 sale netted the Leffmanns $12,000, which was far below the market price, and the painting saw a 50% increase in value when it was insured for $18,000 the following year.
Though Zuckerman argues the painting was sold under duress in Nazi-allied Italy, a federal district judge dismissed the case in February 2018 and the Second Circuit Court of Appeals upheld that decision in June 2019. The Supreme Court’s unwillingness to intervene means the painting is almost certain to remain in The Met’s collection.
Until we gain greater clarity from the courts, this outcome could cause a chilling effect, signalling to Holocaust victims and their families that pursuing their property is a fruitless endeavour. That is particularly concerning given the HEAR Act’s short six-year time window to bring new cases.
For the next few years, the HEAR Act will be a major area of interest in art law. Already, it has played a central role in a separate New York case involving two Egon Schiele drawings valued at $7 million. A state-level appellate court in 2019 upheld a ruling that returned the Schiele drawings to the heirs of Fritz Grünbaum, a cabaret singer who originally owned the pieces and whose art collection was taken prior to his murder at the Dachau concentration camp in 1941.
The Grünbaum case remains ongoing in the courts, but it appears to be the first major favorable art-recovery decision under the HEAR Act, and the appellate judges noted their ruling was “informed by the intent and provisions” in this law.
A lack of case law and concrete tests for the HEAR Act, however, may undercut its intended purpose – to ensure time restrictions do not prevent “just and fair” resolutions to Holocaust art claims, especially because the victims must “painstakingly piece together their cases from a fragmentary historical record ravaged by persecution, war, and genocide.”
I fear the law may be failing in this goal. In order to take real steps toward correcting historical injustices, we must do more than pass legislation – we must ensure victims and their heirs have a clear path through the courts to recover their stolen property.
Sam P. Israel is an art and intellectual property attorney based in Manhattan.