New York Governor Kathy Hochul enacted a new requirement requiring museums to publicly identify any item in their collection that was moved by the Nazis in what Congress has rightly called the greatest organized art theft in human history. The meaning of this new rule is clear: New York is the center of the art world and its museums occupy a unique place of choice. As readers of this blog or my book A tragic fate-Law and Ethics in the Battle Against Nazi Looted Art I know that I have long believed that American museums vary widely in their outspokenness and proactive approach to the issue of Nazi-looted art in their collections. Many have shown admirable initiative in probing their collections, while others have shown regrettable passivity in expectation of receiving and then deflecting claims. The question is whether this bill will move the lines on this balance. Transparency and disclosure have been the defining goals of the modern era of restitution. This new law serves many of these ideals, but some unintended consequences could ensue.
The new law says:
“Any museum exhibiting identifiable works of art known to have been created before nineteen hundred and forty-five and which have changed hands due to theft, seizure, confiscation, sale forced or other involuntary means in Nazi-era Europe (nineteen hundred and thirty-three – nineteen forty-five) should, where possible, prominently display a placard or other signage acknowledging this information with this display.
There are a number of key concepts at work here. The importance of acknowledging the full extent of Nazi crimes for the entire regime—and not some arbitrary later point after a particular set of heinous acts like the Reich citizenship laws (Nuremberg race)—can never be forgotten. Attempts to undermine this undeniable point are unfortunately ubiquitous, including and inexcusably the Holocaust distortion by Germany (with the support of the US State Department no less) in our case before the Supreme Court in 2020 on the Welfenschatz. The bracketing of the new law of 1933-1945 is therefore and remains important. Second, the law takes a sufficiently broad view of Nazi artistic crimes. One of the limitations of the 1998 Washington Conference Principles on Nazi Confiscated Art (commonly referred to as the Washington Principles) is the term itself: “confiscated.” The scope of Nazi art theft was so much broader than cartoonish scenarios of deprivation at gunpoint, including the Nazis’ insatiable quest to pretend they were buyers rather than thieves, or the inability Nazi victims to make real choices, as recognized by precepts like Law 59 Military Government Law 59 Presumption of Forfeiture Without Proof by the possessor, not the plaintiff.
This new law understands that. Explicitly acknowledging forced sales is a vast improvement over the language of the Washington Principles or even museum association guidelines (see below). And “other unintended means” will include a number of scenarios like so-called “stealing goods” where the owner simply had to choose between leaving alive and keeping their art.
The crucial question is what will change? Here, a bit of history is instructive for context. Since the resurgence in the 1990s of awareness of the magnitude and complexity of the issue of Nazi-looted art, various principles have come into play. For example, the major American museum associations that affect the eventual possession of Nazi-looted artwork are the Association of Art Museum Directors (AAMD) and the American Alliance of Museums (AAM). Neither has the force of law, nor claims to have it. Rather, they provide ethical advice to member institutions or more broadly (nearly all American museums, art or otherwise, belong to the AAM. The AAMD is a small group of art museum directors, but its councils are extremely influential).
As I have often written, the 1998 AAMD Task Force Recommendations (before the Washington Conference) are clear and have aged very well. They encourage member museums to “immediately begin examining the provenance of works in their collections to try to determine whether any were illegally confiscated during the Nazi/WWII era and never returned” and to “conduct thorough research into their own archives and, in addition, should take all reasonable steps to contact established archives, databases, art dealers, auction houses, donors, art historians and other scholars and researchers likely to provide Nazi/WWII provenance information.As of 1998, the recommendations included a number of other aspects (including applying these principles to future donations and acquisitions). Regarding the recent New York law, the AAMD recommended that “if a member museum determines that a work of art in its collection has been unlawfully confiscated during the Nazi/WWII period and has not been returned, the museum should make this information public. ”
For its part, the AAM has published guidelines on the “Illegal appropriation of objects during the Nazi era.” These guidelines include the recommendation that museums “(1) identify all objects in their collections that were created before 1946 and acquired by the museum after 1932, that underwent a change of ownership between 1932 and 1946, and that were or could reasonably be considered to have stayed in continental Europe between these dates (hereinafter, “covered objects”); (2) make available currently available information about the object and the provenance (ownership history) of these objects; and (3) prioritize further provenance research as resources permit. Further, the AAM recommends that “if credible evidence of unlawful appropriation without subsequent return is uncovered through research, the museum should take such careful and necessary steps to determine the status of the object, in consultation with an advisor qualified legal. These measures should include the publication of this information and, if possible, notify potential applicants. (emphasis added).
The point of comparison is this: for more than two decades, somewhat analogous principles have been in place as a matter of aspiration and as a matter of ethics. Every museum under the jurisdiction of recent New York law exists within the context of these principles. Museums have responded to these calls to action in a variety of ways. Some, like the Museum of Fine Arts in Boston or the Nelson-Atkins Museum in Kansas City, have hired dedicated experts to assess the provenance of their collections. Unfortunately, some have resisted even acknowledging the obvious and made little effort to be transparent, taking the offensive against claimants and even resorting to ad hominem attacks.
The New York law is therefore a classic example of an attempt to impose behavior that was previously only suggested. There is no enforcement mechanism for AAM or AAMD guidelines. When museums have flouted these ideals, it is generally met with silence from the associations themselves. It certainly supports the idea that something more than best practices might be a good idea.
This is a law, however, and compliance or violation will depend on a careful reading of the text of the law. Even allowing for the admirably broad-minded description of what constitutes Nazi art theft, what or who determines whether the art “changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era”? The Attorney General, presumably in his role as overseer of the non-profit organization, although most New York museums are also subject to Board of Regents oversight. What initiative will the Attorney General take, however?
Of course, if a museum already had reason to believe that a work meets this definition today, it could be forced to indicate this in a sign. But what degree of certainty is required: not like that anymore? Reasonable certainty? Clear and convincing evidence? The law does not say so, and the answer matters. The law could even serve as deterrent to further investigation. After all, the law does not compel investigation, nor does it condemn lack of knowledge. Arguably, a museum would be safer to cease further research lest that research reveal information that would then have to be released.
The notable disputes that have unfolded in New York confirm this, particularly because on several occasions the same museum has come to different conclusions on different objects and claims (many of which are not publicly known). Museums ranging from the Metropolitan Museum of Art to the Guggenheim to the Museum of Modern Art have firmly rejected the underlying premise put forward by the plaintiffs that the works in their collections, in fact, “changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Nazi-era Europe. If they came to that conclusion and were prepared to defend it in litigation – as they had every right to do – this law might not lead to a different disclosure. Certainly (and perhaps coincidentally) there have been disputes elsewhere in which the parties have all agreed that the art meets these criteria, but museums, for one reason or another, have resisted restitution. In this scenario, a museum in New York would be obligated to at least display the information. I fear a side-show of disputes over the scope of disclosure rather than the ultimate issue of restitution.
Finally, I’ve been in this field long enough to be skeptical, even cynical, about whether enough attention will persist past the initial headlines. In 2016, Congress unanimously passed the HEAR (Holocaust Expropriated Art Recovery) Act to expand claimants’ ability to spend their day in court, with much fanfare and many bipartisan press releases. Yet when the Supreme Court ruled that the extension of the HEAR Act statute of limitations was in fact primarily intended to promote out of court resolutions, where was Congress’ objection to the court’s Alice in Wonderland textual interpretative tools? Similarly, when Congress explicitly amended the Foreign Sovereign Immunities Act to define “Nazi-era claims” to mean the entirety of the Nazi era between 1933 and 1945, SCOTUS held that Congress did not mean that some of them. Congress took that insult with all the vigor of Kevin Bacon shouting “Thank you sir, can I have another one!” in animal house.
The new law adopts important concepts that guide ethical behavior. But in practice, it remains to be seen whether the effect goes back and forth with politicians’ announcements.