The Innocent Buyer of Art Looted during World War II

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ABSTRACT

This Note considers the legal issues relating to innocent buyers of looted art. After providing some historical background on the massive displacements of art that took place during World War II, the Note surveys recent developments, including the different types of disputes that have arisen in the past few years. It then provides a legal framework for analyzing one type of dispute, that of the innocent buyer of looted art.

Original owners face difficult evidentiary burdens and other litigation barriers, but law and policy nevertheless favor original owners above innocent buyers. In particular, courts have become increasingly impatient with the anarchy of the international art market and are prepared to impose a duty to search upon those who invest in valuable works of art. Under these circumstances, most disputes between original owners and innocent buyers are likely to be settled out of court. Moreover, the art world, in response to the duty to search, has begun developing title search methods and other title-related policies so future art buyers cart rest assured that they have not brought looted property.

I. INTRODUCTION

Looting and pillaging have been a part of warfare for millennia. In addition to simple pillage by common soldiers, warring states have for centuries looted one another in a systematic manner.(1) Nevertheless, World War II was different. In one sense, the difference was only one of scale.(2) Hundreds of thousands, perhaps millions, of paintings, sculptures, drawings, pieces of furniture, religious objects, and other works of art were looted by the Nazi government from Jews throughout Europe and from state museums, churches, and citizens in Eastern Europe and Russia.(3) Most of these items were then sent back to Germany, where they were later found scattered in hiding places throughout the country.(4) The Nazi looting bureaucracy was well-organized, powerful, and answered only to the top leaders of the party.(5) The Soviet Army also systematically looted hundreds of thousands of artworks, as it marched into Germany, claiming them as reparations for its cultural property losses under the German occupation.(6) Other pieces of art were taken by American soldiers guarding German hiding places, by opportunistic art dealers who took advantage of their Jewish colleagues' positions, and by Germans who saw their chance in the chaos that accompanied the collapse of the Reich.(7)

Part Il of this Note will provide a brief historical overview of why and how this artwork was looted, what happened to it during and after the war, and how innocent buyers later purchased many of the looted pieces. Part III will discuss recent developments. In particular, this section will explore why it has taken so long for these issues to come to light. It will also give an overview of the various legal scenarios that exist in relation to ownership of looted art, including possession by a state or public institution, possession by an innocent buyer, and possession by a thief. Part IV will focus on one particular scenario--the innocent buyer of looted art--and will explore some of the disputes that have already arisen. Part V will focus on the legal issues relating to ownership of these works, and it will also consider some of the policy, equity, and evidentiary issues that arise in these cases. It will also explain why the courts are likely to be highly pro-owner in such cases, finding against innocent buyers, and it will argue that the pro-owner stance is an appropriate response by courts to the anarchic international art market. Finally, it will discuss some of the implications of that pro-owner stance, including the likelihood of out-of-court settlements in many of these disputes.

II. HISTORICAL BACKGROUND

Adolf Hitler was an avid art collector, but his primary interest in art was related to his intent to build a great museum in the Austrian town of Linz.(8) He drew up the architectural plans for the museum himself. …