Indiana Jones, quite possibly the most famous treasure-plundering, antiquity-hoarding fictional archeologist of our time, has a way of making the process of art reclamation or, depending on one's perspective, appropriation, look grand. Indy, usually covered with grime, soot, debris and a perfect layer of five-o-clock shadow, dodges boulders, bullets and brutes armed with bows and arrows as he swashbuckles through exotic locales in search of his next great treasure. Of course, real life is never as grand and, despite the ongoing presence of evildoers, intrepid seekers are usually stopped dead in their tracks by much less ominous forces than bullets or giant rocks.
Hidden in all of this hyperbole is a real lesson. In the world of art restitution, where asset values soar and looted property abound, it can be easy to get caught up in a Raiders of the Lost Ark-esque whirlwind. The real danger may be in romanticizing the quest while overlooking the details. Julius H. Schoeps, the purported heir of a Jewish banker who’s property was allegedly appropriated by the Nazis, found this out the hard way.
In Schoeps v. The Andrew Lloyd Webber Foundation, 17 Misc. 3d 1128(A) (2007) (available at http://www.nycourts.gov/reporter/3dseries/2007/2007_52183.htm),Schoeps claimed that the Nazis forced his great-uncle, Paul von Mendelssohn-Barthody, to sell the Picasso painting, Portrait of Angel Fernandez de Soto, to a Berlin art dealer in 1934. The painting, which has also been called The Absinthe Drinker, eventually ended up in the possession of the Andrew Lloyd Webber Foundation, the defendant. On the eve of the painting's scheduled auction at Christie's International, Schoeps winged in, in true Indiana Jones fashion, claiming that the painting had been sold under duress and demanding that it be returned to its rightful owners, namely, Schoeps and the other Mendelssohn-Barthody heirs he claimed to represent. Schoeps' treasure, while not necessarily the Holy Grail, was expected to sell for between $50 and $60 million dollars at auction.
Unfortunately for Schoeps, Justice Rolando T. Acosto of the Manhattan Supreme Court was there to foil his restitution attempt. According to the court, Schoeps, in his attempt to reclaim the ill-gotten artwork, failed to comply with the New York Estates, Powers and Trusts Law, which mandates that an individual may only bring suit on behalf of an estate if he has received letters of appointment from the New York Surrogate's Court, and, therefore, lacked standing to bring the action. Although, in the words of the court, the litigation raised "very significant issues," the claim was tossed on what appeared to be a technicality. And therein lies the lesson: cases of art restitution are often marked by concurrent high drama and uncertainty, but can be decided on grounds that appear downright pedestrian. These cases are often spurred by war, clouded by uncertain documentation and intensified by dizzying resale values. In a sea of novel and nuanced legal issues, it may be easy to lose on technical grounds that hold much less headline-grabbing cachet.
In art restitution cases where decades have passed and proof of ownership is paramount, the law of wills, trusts and estates should not be overlooked. Whether there is a will or not, it is important to check state law, in order to ensure that the hopeful reclaimant has the right to do so. Julius Schoeps would have been well served had he followed such advice; yet, instead of complying with New York state law by requesting that he be appointed a personal representative of the estate, Schoeps "jumped the gun," so to speak, and saw his case dismissed. Nevertheless, even if Schoeps had established standing, it is far from certain that he would have been successful. Mendelssohn-Barthody did leave a will, but, as is often the case in art restitution cases, the evidence of the artwork’s rightful ownership is murky at best. Indeed, the court’s opinion implicitly noted that there appeared to be evidence that Schoeps may not have been the rightful heir in the first place. As the Schoeps’ case proves, the unclear ownership status of appropriated artwork has corresponding muddying effects on important prerequisites like standing.
When pursuing a claim for restitution of confiscated art or art sold under duress, it is important to be meticulous in determining whether the claimant has standing to pursue restitution. State law must be consulted and complied with in the designation of heirs. The law of wills, trusts and estates varies by state, so a thorough examination of a particular state's law will be necessary to avoid dismissal for lack of standing, as was the case in Schoeps. Even if a purported heir does have standing to pursue the claim, the claimed conveyance may be invalid under state law or indicate that the piece was validly transferred to another party. Rigorous research will often be necessary; there may be documentation from a number of countries spanning a number of decades and it may be conflicting. After all, by day Indiana Jones is actually Dr. Henry Walton Jones, Jr., a college professor of history and archeology. Although it often appears that Indy is improvising and relying more on instinct than intelligence, his success is often secured by his wealth of knowledge and distinct insight, culled from years of research and scholarship. In the world of art restitution, the development of this strong base is essential to the success of any claim for restitution.Copyright © 2009, Sheppard Mullin Richter & Hampton LLP.