A Chaotic Palette: Conflict of Laws in Litigation between Original Owners and Good-Faith Purchasers of Stolen Art

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ABSTRACT

The 1990s saw an exponential growth in the number and political sensitivities of claims by original owners of stolen art against good-faith purchasers of that art. These cases have challenged courts, threatened international relations, created public relations nightmares for museums, and generally shaken the art world. In defining whose claim should prevail as between original owners and good-faith purchasers, states and nations have adopted significantly varied rules to reach divergent resolutions of complicated issues of public policy and private right. In the relatively rare case in which the original owner/good-faith purchaser dispute is connected with a single state or nation, the application of that sovereign's chosen rules presumably furthers the sovereign's interest. When, as is much more often the case, the journey of the art and the domicile of the claimants link the dispute to more than one state or nation, the multijurisdictional character of the case may substantially complicate the issue of ownership. When implicated jurisdictions have been driven by different policy preferences to adopt different ownership rules, the result on a micro-level will be a choice of law that may well further a single state or nation's interest. The result on a macro-level is virtually certain to undermine all relevant policy aspirations. This Article explores the cause and effect of this universally unattractive result.

INTRODUCTION

Egon Schiele paintings on loan from an Austrian museum to New York's Museum of Modern Art are seized, first by state officials and later by federal officials, after heirs of the original owners claim that the paintings were stolen by the Nazis.(1) An ancient manuscript containing tenth-century copies of formulations of Archimedes, long in the possession of a French family and consigned for auction at Christie's in New York, is claimed by a Middle Eastern monastery.(2) A fifteenth-century portrait, stolen from a castle in Germany by an American soldier and sold to a private citizen on Long Island, is claimed by a German museum.(3) Sixth-century mosaics, stripped from the walls of a church in northern Cyprus, are sold in Switzerland to an Indiana gallery owner who offers them for sale in Indiana, where the Cypriot government and the church discover and reclaim them.(4) Paintings stolen from a Washington, D.C., family lie in pieces in a garbage bag in a Pennsylvania house before they are bought by a Pennsylvanian and later reclaimed by the family.(5) The son of a Czech painter seeks the return of one of his father's paintings from an Illinois art dealer working "out of a shopping bag," who had purchased it from "Fly-by-Nite Galleries," which had in turn purchased it from a hot tub dealer, who had seen it while buying fixtures from a defunct Chicago art gallery.(6)

From the tragic to the ridiculous, these cases have challenged courts,(7) threatened international relations,(8) created public relations nightmares for museums,(9) and generally shaken the art world.(10) Although the seizures of the Schiele works from the Museum of Modern Art (MoMA) garnered the most international and domestic attention,(11) they reflect only one of many disputes between heirs of original owners and museums over artwork claimed to have been stolen by the Nazis and their sympathizers. A lawsuit filed against the Seattle Art Museum and later settled,(12) as well as claims against the Fogg Art Museum at Harvard, the Museum of Fine Arts in Boston, the Minneapolis Institute of Arts, Vienna's Art History Museum, and numerous museums in the former Soviet bloc,(13) present many of the same ownership tensions as are presented by the claimants to the Schiele paintings. The claims are being brought not only against museums but also against private collectors.(14)

Despite a 1987 prediction by the United States Court of Appeals for the Second Circuit that legal issues presented by efforts of original owners to recover stolen art from good-faith purchasers, although interesting, would not appear frequently,(15) the last decade has seen a sharp increase in cases raising these issues, and every indication at the beginning of a new century is that the number and complexity of original owner versus good-faith purchaser disputes over stolen art will increase. …