A report commissioned by Museum of Modern Art from former U.S. Attorney General Katzenbach on dispute over ownership of paintings in museum's collection.
REPORT TO THE TRUSTEES OF
THE MUSEUM OF MODERN ARTWITH RESPECT TO TWO PAINTINGS BY GEORGE GROSZ
This Report discusses the provenance of two paintings by George Grosz in the collection of the Museum and the claims of Ralph Jentsch on behalf of the Grosz estate to their ownership. The paintings are: Portrait of the Poet Max Hermann-Neisse (1927) and Self-Portrait with Model (1928).BackgroundWhile George Grosz was not a Jew and left Germany for the United States shortly before the Nazis gained formal power, he was considered an enemy of the state under the Third Reich for his political views. By the beginning of the 1930's, surrounded by the economic problems of Germany and the rigors of the Great Depression, the market for his fine art declined and became virtually non-existent. In the summer of 1932 he came to the United States to teach at the Art Students League, and in 1933, after a brief return to Germany, he emigrated to this country where he remained until shortly before his death, painting and teaching at the League.
One of Groszs dealers was Alfred Flechtheim, a prominent Jewish dealer in contemporary art with galleries in Berlin and Dsseldorf. Their relationship dates from 1923, when Grosz broke off somewhat bitterly with his prior dealer, Hans Goltz. Flechtheim saw Grosz off to America in 1933 and very shortly thereafter, with the Nazi assumption of power, fled Germany himself. He was able to take some of the works in his possession with him to London and tried, without much success, to establish himself as a dealer there. His wife remained in Germany until her suicide in 1941.
There are a number of Groszs logs and notebooks (although some crucial ones, including a Section F, which may have referred to Flechtheim, are missing) as well as some correspondence between Grosz and Flechtheim which have survived. Despite a flare-up in 1931 when Flechtheim, suffering the problems of the Depression and financial difficulties, apparently cancelled his contract with Grosz whose paintings were in any event not selling the two continued in an amiable relationship. No copy, however, of the cancelled contract or any subsequent contract exists. Flechtheim continued in possession of a number of Grosz paintings, writing Grosz that he had been able to get Grosz paintings out of Germany, along with other art from his Berlin Gallery, when he escaped in 1933. Subsequently he writes of efforts to sell the paintings through the Galerie Pierre in Paris, and tells Grosz of the financial arrangements he has negotiated for such sales.
From shortly after the cancellation of the contract at the end of 1931 there is correspondence from Flechtheim, his assistant Curt Valentin, and the person who remained in charge of his Berlin gallery after the Nazis had taken over, Alfred Schulte, with respect to a sizeable debt (RM16,525) which Flechtheim claimed Grosz owed the Berlin Gallery. The basis for the claim is unknown; it could be reconciliation of sales and advances or repayment of loans made. It is repeated a number of times in correspondence which proposes ways of repayment through cash and drawings. The debt is never explicitly acknowledged nor, for that matter, disputed by Grosz or any repayment arrangements ever agreed. There is no evidence that any repayments were ever in fact made. In the arrangements with the Paris Galerie Pierre Flechtheim says Grosz will receive 50% of the proceeds and he will receive 25% until your account with me is covered.
In another letter Flechtheim tells of the liquidation of his German galleries where only with great effort by his assistant Schulte was it possible to avoid full bankruptcy and repay creditors 20%. He goes on to say Your watercolors, which you delivered to me as security, are in London unsold. Business is also bad in London.... Even more difficult than with the watercolors is it with the oil paintings which you likewise transferred as security to me.... referring to the paintings in Paris at the Galerie Pierre, which, he writes, are unsold and now deposited at Billiet in Paris.
Despite the alleged debt and the failure to make sales, relations between Grosz and Flechtheim appear to have remained cordial. Flechtheim continued to try to sell the Grosz works in his possession without any apparent success. In none of the existing correspondence does Grosz complain, inquire about his paintings, seek return of any of his work in Flechtheims possession, or discuss the alleged debt. There is no record of any payments made to Grosz, or credits against the debt.
Flechtheim died in London in 1937. His estate was represented by a British solicitor firm no longer in existence and none of the papers in the estate accounting apparently exist today. How the solicitors dealt with the alleged debt or the Grosz paintings in Flechthiems possession is unknown.
Self-Portrait with Model (1928)MoMA acquired this painting in 1954 as a gift from Mr. and Mrs. Leo Lionni of New York. It is not known how the painting got into the Lionni collection but it appears to both MoMA and Mr. Jentsch that in all probability it was by inheritance from a relative who had purchased it before World War II from a dealer in Amsterdam.
Lionni, an migr himself and a well-known childrens book author, was acquainted with Grosz but there is no evidence that Grosz knew his painting was in Lionnis collection. Before gifting it to MoMA, Lionni put the painting up for auction in New York in 1950 but it did not meet its reserve estimate ($110) and was bought in. While there is correspondence between Grosz and his brother-in-law, Schmalhausen, indicating that the latter was watching sales and auction prices of Groszs work, those letters do not explicitly mention Self-Portrait with Model.This painting was consigned to the Galerie Flechtheim in Berlin by Grosz in 1929. It was exhibited that year in Amsterdam at the Neue Sachlichtkeit exhibition, and in 1932 it was included in the Grosz exhibition at the Palais des Beaux Arts in Brussels during April and May. In Brussels Flechtheim was the lender of record, but he may well have loaned simply as the artists agent. In 1931 Flechtheim had cancelled his contract with Grosz, but continued to represent him on a non-exclusive basis, and in May of 1932 Flechtheim and his assistant Curt Valentin began pressuring Grosz for repayment of his alleged debt to the Galerie Flechtheim
Flechtheim fled Germany in March of 1933 (Grosz had left for New York in January) and in October writes Grosz in New York from Paris that your pictures are here at the Galerie Pierre, and that from the proceeds of sales, Grosz will still receive 50% of the proceeds, until the debt is repaid....as your interests are mine as well ....The pictures do not sail here under my flag: if so there would be no chance. I am in general happy, that they are here; in Berlin they would have been exposed to all dangers!!
While this discussion focused on watercolors, not oils, Self-Portrait appears to have been one of the Grosz works that Flechtheim was able to take with him from his Berlin Gallery. He continued to try to sell Grosz art despite the difficult market and Self-Portrait was among a group of Grosz works sent to Amsterdam for an exhibition at the Gallery van Lier in 1936. Van Lier was a well-known dealer known to Grosz and Grosz was aware of the 1936 exhibition; a friend had sent him a copy of the announcement. Again, the paintings were exhibited in Flechtheims name.
The exhibition was a failure and nothing was sold. The paintings were still in van Liers possession when Flechtheim died on March 9, 1937. Subsequently, van Lier consigned works from the exhibition to the Amsterdam auction house Mak van Waay, where in February, 1938, they were publicly listed as belonging to the Estate of Alfred Flechtheim and auctioned on that basis. The buyers were all Amsterdam art dealers, including van Lier, who bought Self-Portrait for 16 guilder (about $10). The dealers did not bid on many of the works and may have let them fall through. Immediately after the auction some 14 unsold Grosz paintings were sold in lots for about $3 each.
There is no record of who, if anyone, gave authority to van Lier to sell the paintings at auction. Since the paintings were sold as belonging to the Estate of Alfred Flechtheim the logical person to give permission would have been the London solicitors, a reputable Jewish firm, handling that estate. Unfortunately its records no longer exist, and while there is evidence from other sources of care taken by the solicitors with respect to the work of other artists in which Flechtheim had a partial ownership, there is nothing bearing on Groszs works. There is no record in Groszs papers or logs of any effort by him to secure return of any of the works or to authorize their sale. While Grosz clearly knew of the failed 1936 exhibit and the fact that the paintings were then with van Lier in Amsterdam, there is no evidence that he knew of the auction, although it was publicized, and no evidence that he inquired as to the whereabouts of the paintings after the exhibition or upon Flechtheims death.
From the absence of any such records coupled with what he regards as extremely low prices and the fact that van Lier himself bought Self-Portrait, Mr. Jentsch has concluded that the whole auction was a fraud set up by van Lier and the other Amsterdam dealers to get title to the paintings at what he believes were lower than market prices. He concludes, therefore, that title to the paintings remained in Grosz.
Portrait of the Poet Max Herrmann-Neisse (1927)
Hermann-Neisse was purchased by MoMA in 1952 from Charlotte Weidler, a German migr. It was purchased through Curt Valentin, Flechtheims former assistant, who had become an art dealer in New York. It is an important Grosz painting of a close friend from his 1920 period in Berlin.Exactly when, where and from whom Weidler acquired the painting is unknown.
The painting was sent by Grosz to Flechtheim on April 4, 1928 and thereafter exhibited several times: at the Preussische Akademie der Kuenste Fruhjahrsausstellung in May-June 1928; at the Galerie Flechtheim in Dsseldorf in October 1930; in the landmark exhibition of Modern German Painting at MoMA in April, 1931; and at the Grosz exhibition at the Palais des Beaux Arts in Brussels in April-May 1932. At both the MoMA and Brussels exhibitions Flechtheim was the lender of record, but again he may well have done so as agent of the artist. Valentin was the director of the Galerie Flechtheim in 1930 when Alfred Barr visited Berlin to arrange for the loan of the painting for the MoMA show the following year.
The provenance of the painting after the Brussels exhibition until it was sold by Charlotte Weidler to MoMA in 1952 is uncertain. Weidler was the Berlin based representative of Carnegie International, an art journalist and collector, and an outspoken critic of the Nazi regime. She could have purchased the painting in Germany from the Galerie Flechtheim during its liquidation to avoid bankruptcy in 1933, or from another person who had purchased it from the Galerie, or even outside Germany if the painting was not returned to Berlin from Brussels in 1932 or if Flechtheim had been able to remove it from Berlin to London or Paris.
Mr. Jentsch believes that Weidler acquired Hermann-Neisse in Berlin in the 1930's, and that along with other art including the collection of the Jewish publisher Paul Westheim it was hidden through Weidler by her sister in Berlin, survived an air raid, was taken to the country and finally shipped to Weidler in New York in 1948. Despite Weidlers excellent reputation, Jentsch now believes that she embezzled the surviving part of Westheims collection and sold it off without his knowledge. He imputes similar conduct with regard to other paintings in her collection and appears to question her long standing anti-Nazi reputation at least to the extent she took advantage of the Third Reichs victims.
In January 1953 Grosz wrote two letters, one to his brother-in-law Otto Schmalhausen, the other to a friend, Herbert Fiedler, in which he referred to MoMA having acquired a stolen painting. He wrote Modern Museum exhibits a picture that has been stolen from me (I am powerless). They bought it from someone who has stolen it. There is no further clarification of these remarks and Grosz never mentioned the fact of the painting being stolen to anyone at the museum or apparently to his close friend and benefactor, Eric Cohn. Cohn, in correspondence with Barr, expresses his pleasure at the acquisition, compliments Barr on its repair and cleaning, notes that it is unsigned on the front, and volunteers to bring Grosz in to sign it.
Whatever Grosz meant by his stolen references he did not note the portrait as stolen or confiscated in his postwar restitution/compensation claims with respect to unlawful acts of the Nazis.
AnalysisThere is nothing in the record nor does Mr. Jentsch indicate any facts suggesting any bad faith, negligence or questionable conduct at any time by anyone connected with MoMA. MoMA acquired both paintings in the early 1950's from reputable persons, one by gift and the other by purchase. The purchase price appears to have been at a fair market value for a Grosz painting at the time, although Jentsch believes it somewhat low.
Jentsch does not explicitly seek to fault MoMA in any way although he is critical of the low price ($10) for which Self-Portrait was sold in Amsterdam. His case on behalf of the Grosz estate is based on the contention that title never passed from Grosz to anyone else with respect to either painting and therefore both should be returned to the rightful owner. In the case of Self-Portrait, his argument is based on the contention that Grosz consigned the painting to Flechtheim, that Flechtheim never had ownership himself, and that Grosz never received any proceeds from its sale or otherwise ratified the sale. He rejects the debt argument with the paintings as security and contends that neither Grosz nor Flechtheims estate authorized the auction at the Mak van Waay house. He argues that in essence the auction was not only unauthorized but took place as a result of a conspiracy by van Lier and his dealer colleagues to launder title to the paintings.
Jentsch makes a similar argument with respect to the Hermann-Neisse Portrait. Again, he believes the painting was consigned to Flechtheim with title remaining in Grosz. He believes that after the Brussels exhibition the painting was returned to the Berlin Galerie Flechtheim where it remained until disposed of by sale at a distressed price or confiscated in some manner by Alfred E. Schulte who was responsible for liquidating Flechtheims Berlin gallery. He believes Schulte, who may have had Nazi sympathies although Jentsch does not believe he was a member of the Nazi Party, played a sinister role in the liquidation of the gallery and Flechtheims private collection and is responsible for the fact that after the war it became impossible to reconstruct exactly what happened to those paintings. He sees Weidler as a purchaser of the painting as degenerate art and Flechtheim as a victim of the Nazis.
I do not find Jentschs arguments sufficiently supported by facts to be convincing speculations. With respect to the Self-Portrait I have difficulty believing that reputable dealers would enter into the conspiracy Jentsch speculates, openly advertise the auction as from the Estate of Alfred Flechtheim, and sell with no authority at all. With respect to the Hermann-Neisse, assuming it was returned to the Berlin Galerie Flechtheim and not taken out of Germany by Flechtheim along with other Grosz paintings, I find it difficult to accept the sinister role assigned to Schulte in the liquidation of the Gallery. Correspondence of Flechtheim with regard to the liquidation and the successful effort to avoid full bankruptcy praises the efforts of Schulte in conducting the liquidation. And further there is no evidence whatsoever, as there almost certainly would be, of any Aryanization of Galerie Flechtheim. That the liquidation of what remained in the Galerie was related to the Nazi ascension to power and Flechtheim being Jewish is obvious. In that sense he was a victim. But liquidation to avoid bankruptcy is not the same thing as confiscation. Nor can I accept Jentschs blanket condemnation of Charlotte Weidler on the basis of the dispute with the heirs of Paul Westheim as one who systematically embezzled art work of Holocaust victims. Given her anti-Nazi reputation and the high regard in which she was held by Carnegie International it goes too far with too little fact.
But all that being said I do not think it makes any difference from either a legal or --in terms of my assignment, more importantly a moral or ethical viewpoint. So, despite my reservations about the Jentsch speculations, I am going to assume for the purposes of this Report that they are supported by the facts.
From a legal point of view Jentschs claim that title never passed from Groszs hands would, I believe, be defeated by three separate legal rules: It would be barred under foreign or American law by the equitable doctrine of laches; it would appear to be barred under the New York statute of limitations; and under German or Dutch law the failure of Grosz to make a claim for more than thirty years would make any claim now barred by prescription. `None of these defenses are what one could fairly call technical; all have a strong element of equity and fairness to purchasers of art in good faith.
While it is not my function to provide a legal opinion, I do not think in coming to a judgment about these paintings the law can or should be ignored. The Trustees of MoMA hold its collections in trust and should not from a moral or ethical viewpoint treat the fact of good title to the paintings in a cavalier fashion.
At the same time it is important to the preservation of public trust and confidence that the Trustees be seen by the public as acting in a fair and equitable fashion by common standards apart from the law. That principle underlies the special rules governing art confiscated by the Nazis from Holocaust victims or stolen by troops in the final days of World War II. And it is that principle, not my legal opinion, which underlies this analysis.
I start from the proposition that there is nothing that MoMA did or failed to do with respect to the two paintings that in any way injured or took unfair advantage of George Grosz. Alfred Barr was decades ahead of the art world in seeing the significance of Grosz and wishing to add representative paintings to MoMAs collection. Everything he did in this connection was above board and public and can withstand the most careful examination. He accepted Self-Portrait from Lionni, a respectable collector who was acquainted with Grosz, after it failed to meet its $110 reserve price at auction. He sought to purchase a larger version of the Hermann-Neisse but refused an offer when its provenance suggested Nazi confiscation from its rightful museum owner. He then purchased the smaller version at a fair price from a reputable anti-Nazi refugee collector through a dealer who had been Flechtheims assistant and whom Barr had known when he arranged for the exhibition of the same painting twenty years before. Further, based on his correspondence with Groszs close friend and sponsor, Cohn, Barr had every reason to believe that Grosz was happy with the MoMA acquisition and exhibition of the Hermann-Neisse.
Unfortunately, when George Grosz saw the Hermann-Neisse at the Museum and wrote both his brother-in-law and friend that MoMA was exhibiting a painting of his that had been stolen, neither he nor the others said a word to this effect to anyone at MoMA. Had they done so, not only would the Museum have had the opportunity to ascertain the facts when they were still reasonable fresh and knowable and the reason why the artist held this view, but it would have had the opportunity also to resolve the matter then and there at relatively little cost to it. MoMA paid Weidler $850 ($775 plus a discount of $125 to cover the cost of repair) for the painting and presumably Grosz would also have accepted what was then regarded as a fair price and been delighted, as was his friend Cohn, that it was being exhibited by the Museum. Perhaps the purchase price could have been recovered from Weidler or Valentin. But Groszs silence precluded such acts to the prejudice of MoMA since the painting is far more valuable today than it was then.
Essentially the same reasoning is true of Self-Portrait. If indeed that painting still belonged to Grosz the facts of ownership would have been far easier to ascertain fifty years ago than today and the ownership and potential purchase, if appropriate, far easier and less expensive to work out. Whether or not Grosz knew Self-Portrait was also in the possession of the Museum and it is difficult to believe he did not that fact would in any event have immediately become apparent if he had brought the alleged theft of Hermann-Neisse to the attention of MoMA officials. Again the failure of Grosz to act created a serious, however unintentional, prejudice to the Museum.
Jentsch suggests that Grosz found it difficult to assert rights of the kind here involved that he was shy or even what we might call a wimp. Whether true or not, it is irrelevant to the prejudice to the Museum caused by his silence. It is one thing to remain silent when only ones own rights are affected. It is quite another when that silence has the potential to adversely affect the rights of another. And the fact that one does not anticipate or foresee that consequence does not excuse it. Worse yet, from a moral and ethical viewpoint, would be any effort to take advantage of that silence for ones own benefit.
I conclude, therefore, that the stolen letters are fatal to the claim of the Grosz estate since that knowledge created the legal ethical, and moral imperative to speak out or forever remain silent and forgo any claim based on that knowledge knowledge which Grosz had and which MoMA could not reasonably have been expected to discover. Accordingly, I recommend that the claim of the Grosz Estate be rejected. In my opinion the public trust requires the Museum to preserve the paintings in its collection and that this is the proper moral and ethical course for the Trustees to follow.
Nicholas deB. Katzenbach