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Date Published: 08/29/2018

From Murder To Museums: Abraham Lincoln, Adolf Hitler and The Hunt For Nazi Looted Art In America-Current Legal Controversies Over Nazi Art Looting

Museums today acknowledge that significant amounts of Nazi-looted art may have found its way into collections supported by U.S. taxpayers. The United States and its Allies fought World War II, promising, in victory, to undo the horrors of Nazism. At Nuremberg, Nazis were tried based on international law, which, in turn was based on the Lieber Code, Abraham Lincoln’s Executive Order 100 of April 23, 1863 which forbid taking the cultural property of the enemy. In 1998, in the wake of District Attorney Robert Morgenthau’s spectacular seizure of two paintings by the artist Egon Schiele at New York’s Museum of Modern Art, forty-four nations gathered in Washington D.C. at the Washington Conference on Nazi Confiscated Artwork to agree that in cases of artworks, the true owners should be determined, regardless of statutes of limitations and that, where possible, artworks should be returned to their true owners. As recently as January 16, 2013 U.S. Secretary of State Hillary Clinton reaffirmed the U.S. public policy favoring the return of Nazi looted artworks to Holocaust victims worldwide.
In 1998, U.S. museums opposed federal legislation to require museums to return looted artworks to Jewish families, arguing that the law of every state in the U.S. permits the true owners to recover stolen artworks. Under the common law of the United States, where there is a thief in the chain of title of an artwork, no subsequent purchaser can take good title. Accordingly, Congress did not create federal remedies for families of Holocaust victims. However, from 1998 to 2016, U.S. museums and private owners have gone to court to successfully assert statutes of limitation and laches, “technical” defenses cutting off the rights of true owners to investigate and recover stolen artworks.

On December 16, 2016 following unanimous approval by the U.S. Congress, 2016 President Barack Obama signed the HEAR Act into law, extending the statute of limitations on Nazi looted art in many cases to six years following the actual discovery of an artwork’s location.

Should U.S. prosecutors take a hard look at stolen art in U.S. museums? Should Holocaust victims have the same inheritance rights as any other heirs? Should courts use state or foreign law to launder property that federal law defines as stolen? Should U.S. museums be permitted to continue to sue Jewish families or keep artworks in their collections that belong to murdered families? Should the U.S. persevere in dismantling the evils perpetrated by the Nazis? Or is it time to forget Abraham Lincoln’s dream for a world that is committed to taking the profit motive out of war? Attorneys Raymond J. Dowd and Sam Blaustein explore these ethical and legal questions.

Raymond Dowd is a partner in the law firm of Dunnington Bartholow & Miller LLP in New York City. He authored Copyright Litigation Handbook (now in its 10th edition).

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