by Noah Charney

The Journal of Art Crime had the pleasure of interviewing three leading art lawyers, Ian de Freitas, Howard Spiegler, and Fabio Moretti. We spoke of art law, forgery, intellectual property, and fashion law, with each responding to questions related to their personal specializations. Ian de Freitas practices in the UK with Berwin Leighton Paisner and specializes in intellectual properties law. Howard Spiegler practices in the US with Herrick, Feinstein and is an expert in art reparations and repatriation, particularly with regard to art that changed hands during the Second World War and its aftermath. Fabio Moretti practices in Italy with Moretti & Burgio, and is an expert in fashion law. All three will be speaking at the UIA (Union Internationale des Avocats) conference held in Florence, Italy on October 31, 2014, a conference in which ARCA representatives will be participating.

Noah Charney: I like to give my students a puzzle, Howard. Whose culture heritage is a Titian painting of a Habsburg prince that hangs in Madrid? It might be claimed by Spain, Italy, Venice (which likes to think of itself as a different state, and was when Titian was around), or even Austria or Switzerland (where the Habsburgs originated). In legal terms, it is the property of the last legal owner, but in the moral debate of whose “cultural heritage” it is, how do you deal with the situation when multiple nations can claim a single work?

Howard Spiegler: I like to say that as an attorney, my job is relatively straightforward: I just have to deal with the law and not the often complex policies and moral issues that may pertain to these kinds of questions. In general, if the country from which the work has been illegally expropriated has a so-called patrimony law providing for ownership by that country’s government of every antiquity found in or on the ground, and the effective date of that law is prior to the time that the antiquity was expropriated, then the US courts will permit the foreign government to sue in the United States to recover it, subject to defenses like the statute of limitations. If I were to venture into the moral realm, it would be difficult for me not to favor the return of items to a country from which it was expropriated without permission, but if such a position is not viable under the existing law, I would encourage negotiation to ensure a mutually acceptable resolution. This might involve, for example, a confirmation by the possessor that the antiquity is rightfully owned by the source nation, but could provide for a long-term loan of the item, perhaps in return for similar loans to the country involved, especially if the possessor is a museum. As far as multiple nations claiming the same antiquity, when this has occurred in a U.S. litigation, the jury essentially decided that none of the countries involved were able to establish that the antiquity involved had been illegally excavated from one rather than another of the countries, and ruled in favor of the possessor, even though it was clear that it must have come from one of these lands. Proving that the illegal excavation took place in a particular country is often one of the hardest elements of the plaintiff’s case in these actions, mainly because ancient boundaries of nation-states do not necessarily correspond to the current boundaries of modern nations. 

NC: The Internet Age has seen a lot of lawsuits dealing with art looted during the world wars, because all of a sudden families could locate online the works lost to their families decades prior. Before the digitalization of museum collections, it was a lot harder to know where your art might be, if you didn’t just stumble on it. We hear a lot about the restitution of Nazi-looted art, but very little about art looted by the Red Army. Why is that?

HS: Actually, there have been claims brought against Russia with respect to artworks taken during the War, but in general, Russia subscribes to the concept that anything taken from Germany during and after the War represents just compensation for the enormous losses of life and property suffered by Russia during the War. This concept is not in accord with usual precepts of international law, however, and obviously makes it more difficult to resolve these claims. In one case, currently pending in the U.S., the Jewish religious sect Chabad brought an action to compel Russia to turn over archives and a library to Chabad, allegedly misappropriated by Russia or its predecessor governments. After losing a motion to dismiss, Russia remarkably refused to participate in the lawsuit any further, and the court imposed a default judgment against it. Attempts to enforce the judgment, including with sanctions levied against Russia, have been met with resistance from the U.S. government and have yet to be resolved.

You may finish reading this interview in the Spring 2014 issue of The Journal of Art Crime by subscribing through the ARCA website or ordering an issue through Amazon.com.

Noah Charney is a professor of art history specializing in art crime and an international best-selling author of fiction (The Art Thief) and non-fiction (Stealing the Mystic Lamb). He teaches for American University of Rome and Brown University, and is an award-winning columnist for a variety of popular magazines and newspapers. He is the founder of ARCA, and has served as its president since its inception.

Marei von Saher, the daughter-in-law of Jewish art dealer Jacques Goudstikker, filed a Notice of Appeal on March 22, 2012 to the U. S. Court of Appeals for the Ninth Circuit regarding her case against the Norton Simon Museum in Pasadena to recover Lucas Cranach's diptych "Adam" and "Eve".  Her opening brief is not due for several months.

Von Saher is represented by Lawrence M. Kaye and Howard N. Spiegler of Herrick, Feinstein of New York and Donald S. Burris and Randol Schoenberg of Burris, Schoenberg & Walden of Los Angeles.  Herrick, Feinstein recovered "Portrait of Wally" and Schoenberg recovered the Adele Bloch-Bauer paintings by Gustav Klimt for families who had lost possession of the works during the Holocaust. 

Mike Boehm for the Los Angeles Times wrote about the case here last week.

In the Fall 2011 issue of The Journal of Art Crime, Howard N. Spiegler writes of "What the Lady has Wrought: The Ramifications of the Portrait of Wally Case".   This article first appeared in the newsletter of the Art Law Group of Herrick, Feinstein LLP, Art and Advocacy, Fall 2010, Volume 7 and is reprinted with permission.  Herrick, Feinstein represented the Estate of Lea Bondi Jaray, a Jewish art dealer in Vienna who fled for London in 1939 after her gallery was "Aryanized" by a Nazi agent, Mr. Spiegler explains.  He summarizes the case in the first paragraph:

Howard Spiegler is co-chair of Herrick, Feinstein’s international art practice, which includes all aspects of commercial art matters, both in the litigation and transactional areas. He has been involved in several well-known and important litigations brought on behalf of foreign governments and heirs of Holocaust victims and others to recover stolen artwork or cultural property, including the recent recovery by the heir of the famous Jewish art dealer Jacques Goudstikker of over 200 Nazi-looted artworks from the Dutch Government. He has also facilitated recoveries on behalf of the Republic of Turkey of numerous valuable antiquities, the currently pending litigation brought on behalf of the Estate of Lea Bondi Jaray to recover a Schiele painting, “Portrait of Wally”, confiscated by a Nazi agent in Austria in the late 1930’s, and the recently resolved action on behalf of the heirs of Kazimir Malevich, the world-renowned 20th Century Russian artist, against the City of Amsterdam, the Netherlands. This last case resulted in the recovery by the heirs of five Malevich paintings. He received his J.D. degree from Columbia University School of Law in 1974. He serves on the Editorial Board of The Journal of Art Crime and regularly writes and speaks around the world on issues relating to art law.

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