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Art and Law; the case of Altmann versus the Austrians.
Australian Broadcast Corp May 25, 2004

audio at http://www.abc.net.au/rn/talks/8.30/lawrpt/audio/lawrpt_25052004_2856.ram (at 16:00 min)
text at http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s1114398.htm

Damien Carrick: Welcome to The Law Report.
Later in the program, Art and Law; the case of Altmann versus the Austrians.

Eighty-eight-year-old Maria Altmann is currently fighting for the return of six Gustav Klimt paintings, currently hanging in Australian public art galleries, that she says were stolen from her family during the Holocaust.

Now to art and law. Artist Gustav Klimtís dreamy, sensual paintings are emblematic of the lost world of late 19th, early 20th century Vienna, the golden twilight of the Austro-Hungarian Empire. But right now, Klimtís works are conjuring up memories of a much darker chapter in Austrian history: the Nazi occupation.
As Kerry Skyring reports from Vienna, a legal stoush has erupted over the ownership of six Klimt works, currently hanging in Australian public art galleries.
Eighty-eight-year-old Maria Altmann, who now lives in California, says the paintings were stolen from her family during the Holocaust.
[Auction background]
Kerry Skyring: An auction at Christieís in London. It was here in 1997 that a painting by Gustav Klimt was sold for a then record price of fourteen-and-a-half-million pounds sterling. Klimt paintings have since climbed even dizzier heights. The founder of the Secessionist movement is highly fashionable today, just as he was 100 years ago in turn-of-the-century Vienna where he lived and work.
Now six of his paintings are at the centre of a legal battle between the Republic of Austria and Maria Altmann, who lives in California. Randol Schoenberg is her lawyer.
Randol Schoenberg: Mrs Altmann is an old family friend; sheís 88-years old, sheís doing very well, feels very good about the hearing that we have at the US Supreme Court and weíre both just very hopeful and waiting for a decision.
Kerry Skyring: That lawyer, Randol Schoenberg is the grandson of this composer, Arnold Schoenberg, who lived and worked in Vienna at the time Gustav Klimt was stirring up the Austrian art establishment. But this is no simple coincidence. Randol Schoenbergís client, Maria Altmann, is the niece of Ferdinand Bloch Bauer, the original owner of the disputed Klimt paintings. ëPortrait of Adele Bloch Bauerí, his wife, is one of the most famous of all Klimt paintings. It now hangs in the Austrian National Gallery. How it came to be there and not in the living room of his niece, Maria Altmann, is a very European story.
Sophie Lillie is an art historian whoís documenting the looting of Viennese art collections during the Holocaust. She says Maria Altmann has a case.
Sophie Lillie: I think itís a very difficult case, and yes I do think there is a case, because what the Austrian government is arguing is that they received paintings on the basis of a will in 1925 and 1928.
Kerry Skyring: Before the Holocaust.
Sophie Lillie: A long time before the Holocaust, and there are many discussions now concerning was the Adele Bloch Bauer even the owner of the paintings, did that have the character of a natural obligation or was it a suggestion, or was it a wish that she wanted her husband to do, but regardless of any of that, I think itís extremely problematic that the Austrian government is saying that the confiscation of art work in 1938 in a sense was the interpretation of a will.
Kerry Skyring: The story really begins in 1923 with the death of Adele Bloch Bauer, wife of a wealthy Jewish art collector, famous subject of two of the paintings. In her will, Adele asked her husband to give the paintings to the Austrian National Gallery on his death, that was in 1923. Enter the Nazis in 1938. Ferdinand escapes to Switzerland, his art collection is confiscated, the paintings ended up in Austrian galleries. Ferdinand dies in 1945, leaving his property to his heirs. One of those, Maria Altmann, now wants at least those six paintings back.
Austria counters, ëThey were willed to us in 1925 long before the Holocaustí. Ernst Ployle is an Austrian lawyer and art expert.
Ernst Ployle: In the case of Altmann the position of the Austrian State is that none of these cases happened, but with this Altmann rather, as it is believed, sold it or transferred in another to that time legal way to the Austrian State.
Kerry Skyring: The basic Austrian position is that this was not stolen by the Nazis, this was passed on by the husband of Bloch Bauer to the Austrian gallery?
Ernst Ployle: Exactly.
Kerry Skyring: Maria Altmann first tried in Austrian courts, but her lawyer told me this would be too costly. Now the US Supreme Court will rule whether sovereign immunity laws bar the case from being heard in the United States. Randol Schoenberg reckons theyíll rule in his clientís favour.
Randol Schoenberg: Weíve always thought itís a very clear case. I think someone on the Austrian side has to sit down and say Wait a second, we donít actually need to fight every family that was victimised by the Nazi down to the very last penny. These paintings were taken from Ferdinand Bloch Bauer after he fled Vienna in 1938. They were handed over to the Austrian gallery, most of them, during the war era. And the Austrians were never entitled to the paintings.
Kerry Skyring: I just want to clarify this Austrian argument, that is, Maria Altmannís aunt, Adele Bloch Bauer, just before her death in 1925, had a will which asked her husband to give the paintings to the Austrian gallery, that was in 1925 and long before the Holocaust. Isnít that a fairly powerful argument, that they were handed over, or at least willed to Austria before the Holocaust?
Randol Schoenberg: No, absolutely not. And thatís the opinion of Professor Welzer, who has a specialty in this type of civil law at the University of Vienna. Itís his opinion that no, Adeleís will did not give any right. If you make just a request that someone else do something with their property, thatís not enough, and both under American law and Austrian law, itís very clear that the language Adele Bloch Bauer used in her will wasnít binding.
[Auction background]
Kerry Skyring: Artwork being auctioned in Viennaís Dorotheum Auction House. This is where some of the looted art was disposed of, often through rigged sales to private owners. They paid a fraction of the real price and the artworks from Viennaís Jewish collectors disappeared into private homes. But occasionally they surface again and when they do, someone like Sarah Jackson will be waiting. Sheís the Historic Claims Director at the London-based Art Loss Register.
Sarah Jackson: What weíre trying to do is identify tainted works of art before they even reach the auction block. So what weíre doing is checking the auction catalogues of the major auctioneers worldwide prior to sale to identify looted works of art, request that they be withdrawn and then create an opportunity whereby the claimants and the current owner, the seller, can reach a settlement.
Kerry Skyring: Just to ask you about one painting, and I picked this up from your website, itís a Peter Breughel painting, ëWolf and Shepherdí oil on panel, confiscated by the Gestapo in Vienna around 1942, present whereabouts unknown. What hope do you have to recovering that painting?
Sarah Jackson: We have in fact identified that painting. We located it when it was offered for sale and that painting has now been restituted to the rightful owner.
Kerry Skyring: Just describe the process then. How did you track it down?
Sarah Jackson: We receive auction catalogues from auction houses across the world prior to auction. We simply saw the painting illustrated in the catalogue. I had registered it on behalf of the claimants some years beforehand, and weíve been looking for it on a daily basis as we check catalogues as we respond to inquiries from the trade, dealers and so on, and we spotted the catalogue before it could be sold again.
Kerry Skyring: And the owners, or the heirs to the owners? Just describe their reaction to all of this.
Sarah Jackson: They were astonished and delighted, as many claimants, they had persevered for many years to find what had been stolen from their family and we were very pleased to be able to help them.
Kerry Skyring: So thereís one happy ending. But there could be many more. Sophie Lillie says only a fraction of the looted art has been recovered.
Sophie Lillie: I would say of the collections that Iíve covered, at least 150, most of the artwork never was returned and never was recovered by the original owners. It was very difficult for people to make any kind of restitution claim after the war because in order to do that, according to the Third Restitution Law after the war in the late ë40s, you had to be aware and had to know the location of the artwork that you were claiming.
Kerry Skyring: In 1998 Austria passed a law which required that the collections in the state, well art is returned if the provenance is doubtful, was that a big step forward?
Sophie Lillie: A very big step forward, because itís the only area in Austria where you can claim any kind of restitution or can make any kind of claim to the government for the recovery of individual pieces. Itís not possible in any other area. Since then there has been another law to pay compensation under the General Settlement Fund, but itís not the same thing as actually being able to recover a physical object that is today in public.
Kerry Skyring: Does this extend into the private collections?
Sophie Lillie: No, but in fact it doesnít even extend to the provinces because the Art Restitution Law of 1998 governs only federal collections, which means itís only Federal museums like the Kuntshistorisches Museum, like the Belvedere, like the Albertina, it doesnít cover any of the provinces because theyíre not able to. Some, only three provinces, in Austria have passed similar laws, itís Vienna, Styria and Upper Austria.
Kerry Skyring: As a result of your book, and your research on these collections, have any pieces of art been returned?
Sophie Lillie: Paintings that have been returned; the most recent paintings are a pair of Macquet paintings from the collection of the Auspitz family that were held at the Historical Museum at the City of Vienna, and they are just in the process of being returned to the family.
Kerry Skyring: These are the heirs of the original owners, or are there any survivors who are there to see the paintings?
Sophie Lillie: No, these are their children and grandchildren.
Kerry Skyring: When Austria introduced its New Restitution Law in 1998, it opened up the nationally-owned galleries to scrutiny, claim and recovery, and valuable art works have been returned. But what about those still in private hands?
Randol Schoenberg: I know that there are a number of works in private hands in Austria that have not been returned. I can think for example of Klimtís portrait of Gertrude [unclear] thatís in the possession of the widow of Gustav [unclear], heís the one that Aryanised it during the war. Itís a beautiful Klimt portrait and the womanís son is living in California here and would love to get it back.
Kerry Skyring: Thatís my point. If you go ahead with this, if you get Supreme Court approval to pursue this in the court in California, could a case like that then again go through courts in California?
Randol Schoenberg: Well it would require that there be jurisdiction over the present owner, and in that case it doesnít appear that thereís jurisdiction in the United States over the person who possesses that painting. If the painting were ever to leave Austria and come to the United States, obviously it would be a different story.
Kerry Skyring: The Holocaust destroyed much and dispersed the art collections, great and small, of Viennaís Jews. But the culture that gave us Schoenberg and Mahler and Klimt is not letting go, as weíre seeing in the case of Maria Altmann versus the Republic of Austria. The descendents of those great artists are sticking together and going to court to seek redress.
The United States Supreme Court will soon rule on whether Maria Altmann and her lawyer, Randol Schoenberg, get their day in a California Court.
Damien Carrick: Kerry Skyring in Vienna with that story.