💡COLLECTION TIPS: Restitution

Restitution

Often, the topic of restitution rises to public awareness when a restitution claim is put to a museum that holds a high-value work of an avantgarde-artist formerly from a Jewish collection. Media frenzy is fuelled by the fact that after the original claim is settled and the work is returned, it appears at auction and then fetches vast sums of money. The most recent case which might still linger in people’s visual memory is the return of the painting “The Foxes” by German artist Franz Marc from 1913 which was restituted to the family of the former owners Kurt and Else Grawi by the city of Düsseldorf after years of complicated negotiations. It was auctioned for a new world record of £42,6 Million GBP at Christie’s in London in March 2022.

However, restitution covers a much wider area of potential claims beyond Nazi looted objects. Therefore, essential knowledge about issues of restitution is crucial for any collector interested in more recent as well as historic art. Sadly, in collecting guides, this topic is often neglected. This might be because collectors of contemporary art would usually buy in the primary market where these cases are rare. However, with the financialization of the art market, collectors often spread their investment and might include 20th Century and also older art in their collections.

So, when a private person looks at restitution, he is likely to be in one of the following two camps: Firstly, the potential of finding a lost family object and issuing a claim of restitution or secondly, being in possession of an object which might be subject to a restitution claim by a third party.

The following overview will look at each scenario to signpost readers to the most crucial questions and decide if professional support is needed for their own individual case.

Finding a lost object and raising a restitution claim

1.           Identifying a lost (family) object

Often it is only decades after a possible loss that family stories might unearth the potential for a lost object which might still be traceable. The representative of the group of heirs of the above-mentioned Franz Marc painting describes vividly in an interview how during a casual conversation with his father-in-law during a visit to the Franz Marc Museum in Kochel am See that said father-in-law remembered a Franz Marc painting in his childhood home. It was only after this conversation that the search for the lost work began. The first step in a search for lost objects is to keep family histories alive, checking out old photographs, maybe consulting family archives and being aware that what would otherwise maybe be considered to be an “old stuff” in the attic might have been a precious item that you might be able to find and get back.

2.           Registering a lost object

The Art Loss Register in London (https://www.artloss.com/register/) is the world’s largest private database of stolen art, antiques and collectables. It has been founded in 1991 and has become a worldwide recognised industry leader. It is vital that you register your lost, stolen or looted work with them to ensure that should anyone try to sell it, you have its loss registered and therefore can potentially lay claim to it. In addition, there might be country specific databases of lost or stolen cultural good you can get in touch with. If you identified a loss, make sure you register it as widely as possible.

3.           Identifying the location of the object in a museum or the market

Imagine the lost work has been identified in a location, either in a museum, a private home or within the art market. Now the most complex part of this journey begins, which is to proof the legal title of the object and to file a claim for it. The legal title is defined as the past and present full right of legal ownership. It is at that point when ultimately lawyers or law enforcement agencies need to be involved to ensure that your rights are being upheld. They are also the experts who know which items can still be claimed back. Prepare yourself for the long game. Many restitution claims last decades and in the Franc Marc case the family spent 8 years with complex negotiations until they were to be able to retrieve the painting.

4.           Know why you want restitution and know what you want to do with the work after restitution

These points are the most important ones according to the Marc family representative. He points out that knowing what you want to achieve with your search is of utmost importance to the success of the journey. In their case they wanted justice for their ancestor and his possessions. “Every family is different, and, in our family, it was all about justice being served…. You have to have a purpose and you have to make sure the entire family has the same purpose.” A strong shared belief will also ensure that communication between maybe a larger group of heirs remains open and ensures that everyone is singing from the same hymn sheet. It is in this context that it is important to decide what will happen to the restituted object as disagreements about this might not only divide a family but also render the whole – often costly – journey more difficult.

Returning an item in your possession due to a restitution claim

While the above scenario of finding a work makes headlines more often, it is probably even more important to ensure that you do not purchase any works for your own collection where someone else might have a claim on the object. Apart from simple claims around a legal title, stolen, spoliated, or looted objects are much more frequent in the art market than one wants to think. The traffic of looted objects has risen immensely since the escalating conflicts in many areas of the world. It is by now well known that the illicit trade with antiques funds not only wars but also fuels the demand of European, American and Asian collectors. So, what are the steps to take to secure that your purchases are above board?

1.           Buy from trusted sources

If you buy from reputable auction houses, dealers or at fairs which are associated with a relevant trade body (art and antique dealers associations for example,) there is a good chance that the relevant checks have been done in advance of the sale. If you know the person you buy from, it is furthermore likely that he or she has both their own and your interest at heart and will only sell objects legally. James Cuno, in his books “Who owns antiquity?” ask poignantly about purchasing an object: “and ultimately, did the art museum trust the donor or dealer?”

2.           Conduct due diligence

However, no one is perfect, and the purchaser has to proof that he conducted due diligence for every purchase he makes if doubts arise. It is important to establish that you will have full legal title of the object after purchase. This might for example mean that you ask the seller where the item is from, if he has it tested against the Art Loss Register (ALR) mentioned above, and if the searches came clear. Be aware however, that illicit antiques from war zones for example would have never entered into the database, so it is not fool proof system.

3.           Check Provenance

The best way to protect yourself that you have not been complicit in illicit trade is to check an object’s provenance. “Collectors of ancient art need to be very aware of the provenance of the objects which they acquire”, writes lawyer Martin Wilson . While not legally fixed, a good date to keep in mind is 1970, the year of the UNESCO Convention. If a work is documented outside its source country before that time, it is a first indicators that it is not illegally in the country. A more recent, 2019, EU regulation is tightening the law around import of cultural goods into the EU further. So, checking literature, exhibition history or provenance of works is of vital importance. If a seller can’t give you this information or you are not sure if it is solid, stay away from the purchase. Similarly, if you look to purchase an object which might have come from a Jewish collection and been looted during the Nazi period in Germany, do ensure as much as you can, that there are no gaps in the ownership history and that ideally no sale of the work took place in the 1930s. With estimates of about 1000 million looted objects during this period, you want to make sure you don’t purchase anything that belongs to someone else.

4.           Publicise your collection

Claims for restitution, especially in the case of antiques, become often known when objects see the light of day, in this case the public eye. This happens either in exhibitions or when works come up at auctions. Be open and lend your objects. Publication not only ensures that the value of your work might increase as it gains an exhibition history, but it also means that you are aware that your objects are part of a discourse in which transparency is vital to make the art market a fairer trading place.

5.           Return works if there is a claimant

Should you be conspicuous that your object might actually not be legally in your possession, this doesn’t mean you have to do something. If no one claims it, there is no need to do something. However, you might consider contacting the possible owner or even the source country directly and start a conversation about your object. This will have much to do with your own views and beliefs about ethical ownership and your role if the process of keeping works of art safe.

Summery

Collecting involves ownership. This always comes with responsibilities and obligations. Ownership of objects which are so intwined with issues of cultural heritage, but also conflict and cultural dominance – as we see right at this moment with the destruction of cultural object in the Ukraine - poses ethical questions we should all be aware off. If – like in the Franz Marc case - the heirs wanted to right a past wrong, they didn’t act only for themselves but also for the Jewish Community in a larger sense.

In the case of giving illicit items back, we see that more private collectors act. Samuel Reilly writes in an article in the art magazine Apollo about Mark Walker, who inherited Benin Bronze objects from Nigeria which were in his family for generations. But when he discovered that they at least morally belonged to the Nigerian people, he decided to return the objects out of his own accord to Nigeria. 

Further Information:

On legal issues in general:

M. Wilson, Art Law and the Business of Art, Edward Elgar Publishing Cheltenham 2019

A. Thomkins (ed.), Art Crime and Its Prevention: A Handbook for Collectors and Art Professionals, Lund Humphries Farnham 2016.

https://collectionstrust.org.uk/cultural-property-advice/restitution-and-repatriation/

https://www.christies.com/en/services/restitution-services/guidelines

On significant restitution claims:

https://judithdobrzynski.com/11595/what-makes-the-portrait-of-wally-case-so#:~:text=Far%20less%20graphic%20and%20edgy,the%20US%20government%20and%20the

https://www.theartnewspaper.com/2022/03/01/franz-marcs-foxes-leads-christies-marathon-shanghai-london-auction

On Illicit cultural goods:

https://www.kulturgutschutz-deutschland.de/EN/EverythingAboutTheProtectionOfCulturalProperty/LegalBases/EuropeanLaw/EURegulationOnTheIntroductionAndTheImportOfCulturalGoods/EURegulationOnTheIntroductionAndTheImportOfCulturalGoods_node.html

https://www.apollo-magazine.com/private-restitution-colonial-art-africa/

F. Sarr and B. Savoy, The Restitution of African Cultural Heritage. Toward a New Relational Ethics, 2018 (http://restitutionreport2018.com/sarr_savoy_en.pdf)