In addition to offering compelling information to historians and art lovers, provenance often plays a central role in ownership disputes. Essentially, you cannot demand the return of an object, if it wasn’t yours to begin with. Without proof of ownership, a party lacks legal standing to successfully make a claim for restitution. (“Standing” is a requirement of Article III of Constitution. It is the term for the ability of a party to demonstrate a sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. In simple terms, courts use “standing” to ask, “Does this party have a ‘dog in this fight?’”) For this reason, determining provenance is vital in lawsuits involving stolen property because only parties with an ownership interest can demand restitution.
Oftentimes provenance is central to matters related to Nazi-looted art. But proving ownership can be extremely difficult for individuals victimized by the Nazis because of the events that occurred during WWII. The displacement of art during the war was vast; it is estimated that 20% of art and valuables in Europe were looted by the Nazis (this includes items such as musical instruments, jewelry, furniture, porcelain, books, and other personal property). Sadly, most owners lack documentation to support their restitution demands. As people fled their homes and countries, they left behind not only their property, but paperwork associated with those items. Without that documentation, it is an incredible burden to make a claim for restitution because it is nearly impossible to prove ownership. But for the small minority of owners able to successfully demand return of their property, crucial evidence is sometime found in the most unexpected of places.
Landscape with Smokestacks
That was exactly what led the Goodman (Gutmann) Family to pursue a restitution case against Daniel Searle, a collector who had purchased a stolen Degas landscape. The Gutmanns (a wealthy banking family) had an enviable art collection that the Nazis coveted. Landscape with Smokestacks was placed in storage by the Gutmann Family in 1939 in order to save it from Nazi seizure. However, it was eventually taken by the Nazis after the work’s custodians perished in concentration camps. The Degas painting then resurfaced in Switzerland after the war, and then was acquired by a New York collector in 1951. It was eventually sold to Daniel Searle in 1987, with the assistance of the Art Institute of Chicago.
Interestingly, the Gutmann heirs began a quest to recover an impressive art collection after one of the heirs discovered his true identity. Simon Goodman, whose father had moved to England and changed his name from Gutmann to Goodman, had grown up unaware that he was Jewish or that his family owned an incredible art collection. He had discovered this information after receiving a collection of boxes after his father’s death that contained information about his family’s looted collection and ownership information about some of the pieces.
The Degas painting was on the inventory of missing family treasures. During their research, the Gutmann heirs came across a photograph of the work. “Monuments Woman” Rose Valland heroically recorded information about plundered art, and after the war, presented one of the surviving Gutmann family members with images of their looted property. Although only a black-and-white photo, it was used to establish the provenance, verify legal ownership claims, and resolve the legal dispute. The lawsuit lasted over two years, and ended with a settlement. Searle donated a fifty percent ownership interest in the work to the Art Institute of Chicago, and ceded a fifty percent interest to the Gutmann heirs. As part of the agreement, the museum purchased the Gutmann’s interest based on the market value. It was the first dispute over Nazi-looted art settled in the U.S.(For more information about the Gutmann Family’s provenance research and legal battles, Simon Goodman’s The Orpheus Clock is a gripping book about his family’s struggles.)
Determining provenance can be very challenging. Over time, information about a works’ ownership is lost. Sales documents and receipts are lost, first-hand knowledge about transactions slowly disappears as individuals involved in a sale pass away and memories fade. It is especially challenging to piece together a provenance when parties conceal this vital information. Thieves (whether they are individuals or groups) attempt to erase the truth about works, or create a false provenance, so that they can lay claim to the property. This is exactly what the Nazi Party did as it stole art and valuables across Europe.
An image of the Monument Men with recovered artwork (AP Photo/National Archives and Records Administration)
In 1943, the Monuments, Fine Arts, and Archives program (MFAA) was established under the Civil Affairs and Military Government sections of the Allied armies. Its members, better known as the Monuments Men, worked to protect artworks, archives, and monuments in Europe. 345 men and women served in this group, including well-known art professionals, including curators and historians from the National Gallery of Art, the Metropolitan Museum of Art, Harvard and the New York City Ballet. With an overwhelming task to protect sites and return works to rightful owners, the Monuments Men faced an incredible hurdle. Making things even harder were limited resources and a short timeframe in which to conclude their work. Although many works remain missing to this day, the Monuments Men were able to return more than five million looted cultural items.
The first museum in the United States to hire a full-time provenance researcher was the Museum of Fine Arts in Boston. In 2003, they hired Victoria Reed to serve as Curator for Provenance. She has been instrumental in conducting research that has led to the return of a number of stolen arts or payment of financial settlements to rightful owners, such as with Eglon van der Neer’s Protrait of a Man and Woman in an Interior. (Following the MFA’s lead, a number of other institutions have hired provenance researchers to examine items in their collections.) While the MFA Boston is closed, Dr. Reed is posting daily tweets about artworks from the museum’s collection that feature interesting provenance information.
Our founder has served as counsel on a number of stolen art matters. One of the cases in which she served as lead litigation counsel involved a civil forfeiture. Civil forfeiture occurs when government agents seize property suspected of being involved in criminal activity. The property owner doesn’t have to be charged with a crime, so the case is actually against the property itself which is why some forfeiture cases have unusual names. Case in point: United States of America v. The Painting Known and Described as ‘Madonna and Child’ attributed to the Florentine Painter Active In The Ambit of Cimabue, Circa 1285–1290, held by Sotheby’s in New York.
The three-decade long disappearance of the thirteenth century painting is a tale about the development of provenance in a legal battle. The story begins in 1977 with the purchase of the panel from a religious mission in London. Co-owners of the painting sold partial interests in the work to other art collectors so that each of the parties owned a percentage of the work. After its purchase, the parties placed the work in a jointly-rented safe deposit in Switzerland, and tried to market the work to sell it.
Unbeknownst to the other parties, one of the co-owners moved the painting to his own safe deposit box in the mid-1980s. In early 1990, he was brought to court. There was an order from an English judge restraining him from selling the painting. However, he used aliases to market the painting. Eventually he hid the painting and he fled to France, and a series of legal conflicts and international police investigations began. The situation quieted down and the co-owner died in Florida in 2006. He left his interest in the painting to his wife who eventually consigned the work in Sotheby’s in 2013.
Due diligence at Sotheby’s revealed that the painting was stolen after the Art Recovery Group discovered that the work appeared in its database of stolen art. The January 2014 sale was stopped. In June of that year, the US Attorney for the Southern District of New York filed a complaint against the stolen painting, and Sotheby’s voluntarily forfeited the work. At that point, anyone with an ownership interest was invited to file a claim with supporting documentation. Although there was a gap of over twenty years during which time the painting was hidden, there was substantial documentation supporting our clients’ claims. We developed the evidentiary record in the form of an extensive provenance by supplying the original purchase and sales documents (from the 1970s), bank records from the safe deposit, signed and notarized affidavits, police and INTERPOL reports, the power of attorney allowing one of the owners to sell he work on behalf of the consortium of owners, postmarked letters from the time of the painting’s disappearance, one of the owner’s wills that specifically named the piece, a 1990 article in the Antiquities Trade Gazette, and court decisions against the thief.
With such strong proof of ownership, the case was resolved in the spring of 2015; title was returned to the legitimate owners, and the work was auctioned at Christie’s, with proceeds going to the rightful parties. The co-owner’s widow thought she would be able to sell the work painting because the other co-owners had lost track of the piece over the long lapse of time. However, ownership is part of the permanent provenance that accompanies a work.
Our civil forfeiture case cleared any clouds on the title and the current owner (the individual who purchased the painting at auction) has perfect title because a US court made a definitive ownership determination (as Christie’s noted in its catalog.) The only unanswered question now is attribution (we will address attribution in future posts). The lack of provenance prior to the 1977 purchase makes it particularly challenging to identify the attribution. As of now, the author is identified as “a close follower of Duccio.”
The Covid-19 pandemic
has affected every aspect of life around the globe, and the art market is no
different. As the number of confirmed Covid-19 cases has risen, art events
have been cancelled or postponed. One of the world’s largest art fairs, TEFAF
Maastricht, was closed early after an exhibitor tested positive for the virus. (Our
founder was scheduled to speak at an art conference held in conjunction with
the event, but the conference has been postponed for a date in the near future.)
Other art fairs followed suit, as well as
cultural institutions, including museums, performance venues, and
libraries. Despite these uncertain times, art transactions are still occurring,
and we continue working with new and former clients on a variety of art and
cultural heritage matters. We consult with individuals and entities, including
artists, collectors, dealers and other industry professionals, as well as
institutions and foundations, to craft short-term and long-term plans, and to
successfully transact legal exchanges and actions.
Famed bankers Giovanni de’ Medici and his son, Cosimo
One financial vehicle available to collectors and dealers is the exploitation of their art assets as collateral for new art purchases and loans. Lending transactions involving art and luxury goods have become commonplace, and that has resulted in a variety of lenders offering this service, including boutique lenders (such as Athena), auction houses (such as Christie’s) and large banks (such as Emigrant Bank). We work with both collectors and dealers to maximize the value of their assets, including not only art, but other valuable holdings, such as watches, fine jewels, and musical instruments. We had the privilege of working with one of Manhattan’s most notable art collectors on successfully securing a $150 million-dollar loan against his artworks. In that particular instance, we attended to the transaction from the start to finish, and that gave us all the necessary information to successfully negotiate the terms of the agreement between the client and the bank, with a result that exceeded the client’s expectations. We work with a variety of clients, whether they are novice buyers or if their collections are valued in the hundreds of millions of dollars.
A number of issues we
handle for clients under these circumstances include the process for securing
collateral, the rights of a secured creditor in and to collateral, as against
the rights of other creditors, and the risk assumed by a consignor that a
dealer may convey to a third-party good title purchaser. Whether an art
collector is interested in collateralizing his or her collection in order to
take out a personal or business loan for covering expenses incurred as a result
of the pandemic, sell assets, or acquire additional art pieces, we invite you
to contact us about how we can work with you to assist with your art needs.
From a legal perspective, provenance is important for a number of reasons. A series of blog posts during the next couple weeks will examine a variety of objects with interesting provenances, discuss the importance of provenance in legal disputes, present the role of provenance for authentication matters, and provide guidance for collectors. This first post will examine the establishment of provenance, notable histories, and a few interesting objects.
Provenance is an ownership history– the life of an object and its owners, wrapped into one. A provenance may consist of documents related to a work’s sale, such as purchase and sales agreements, bills of sale, or receipts. Exhibition, auction or museum records also supply important details, as the objects may have been listed in a contract, a catalog, a magazine, a newspaper or an advertisement. Another valuable resource is documentation memorializing the transfer of ownership within a family, like through a trust or will. Similarly, information from insurance policies may provide important details about ownership and location.
Copyright: artemodernapordenone.it
Some provenance information can be more personal in nature. For example, letters or journal entries offer important information about an object’s movements through time; these writings also provide insights about the personal connections people had with their work. For example, Vincent van Gogh’s frequent correspondences with his brother shed light on the painter’s activities and processes. Famed collectors have also been known to record their purchases in letters, journals or scrapbooks. Photographs may also play an important role in tracing a work’s movements, and they have provided serendipitous proof in a number of art law matters (we will discuss some of these matters in future blog posts). Yet, even without other sources, a provenance can be ascertained from the object itself. An object may bear an artist’s signature and date, in addition to sales labels, museum stamps, collector’s marks, or other distinctive visual clues.
An ideal provenance traces a work back to the artist’s hand, to the moment when a work sprang to life. However, a complete provenance is atypical for works older than a century. Provenances can provide important context for objects. In some instances, provenances may be even more interesting than the objects themselves. Some objects have passed through the hands of famous dealers, respected collectors, celebrity personalities, and even royal families. With each movement or transaction, the owners become part of the artwork’s history.
Last year, an exhibition opened at the Met Cloisters entitled The Colmar Treasure: a Medieval Jewish Legacy. The individual items on display were not extremely costly, but the story of the trove is riveting, yet tragic. A cache of rings, brooches, and coins was hidden in the 14th century in the wall of a house in the idyllic French town of Colmar. While renovating a shop in 1863, on a street known as the rue des Juifs (the Street of Jews), workmen stumbled upon a small cache of medieval jewels and coins. Based upon the location of the treasure and the appearance of a Jewish Ceremonial Wedding Ring, historians were able to piece together a tragic tale. The collection tells the story of the Jewish minority community in the picturesque French town. When the Plague struck in 1345-1349, townspeople all along the Rhine accused Jewish citizens of poisoning wells. Colmar burned its Jewish citizens to death. Following the massacre, the emperor exploited the opportunity to claim ownership of Jewish assets. From this, historians presume that the owners of the treasure hid it behind a wall for safekeeping. Historians have not identified the owners. No one can be certain why the items were left there for centuries, the history of the town suggests that the owners were victims of the scapegoating or fled from Colmar before they could remove the property. The discovery behind the wall allows us to understand the treasure’s context and a bit of its past.
Recently, another work appeared from behind a wall. We reported on it last year when the New York Times featured an article about a 17th-century painting by Arnould de Vuez, discovered during the renovation of an Oscar de la Renta boutique in Paris. Read our earlier blog post to learn about the object’s identification. However, the work’s journey is still not clear.
On the other hand, some works have fully developed provenances that date back for many centuries. Titian’s Allegory of Marriage (also known as the Allegory of the Marchese del Vasto) has graced many important collections during its 480-year history. It has been owned by eleven different owners, originating in Italy before moving on to England and France. Titian painted the work in 1540 in Venice, and then it moved to the Palazzo Ducale for its commissioner, Alfonso d’Avalos. It then went to Vincenzo Gonzaga in 1627. Next, it moved to Murano with famed Flemish art dealer Daniel Nijs, before it transferred to Charles I, who displayed it at the Palace of Whitehall from 1639-1649. (The French King may have acquired it at auction in Spain). It remained at Whitehall until it was sold to Louis XIV in 1683 and then displayed at Versailles Palace. It was then owned by Duc d’Antin from 1715-1737, held at Hôtel d’Antin. The painting then returned to Versailles with Louis XV from 1737-1752. Finally, it was transferred into the Royal Collection in 1752, and then moved to the Louvre (perhaps in 1785) where it is still on display. The journey of this masterpiece is extraordinary because it changed so many hands, but we are still able to trace it directly back to the artist without any gaps. (This is also valuable for the authentication process– a topic we will address in a later blog post.)
Establishing a strong provenance is important not just for fine art, but for other collectibles and luxury items, including jewelry, musical instruments, and even carpets or furniture. In 2010, a set of playing cards was sold at auction for millions of dollars. The cards were not made for playing, but were created as works for a Kunstkammer, a collector’s cabinet. Although estimated to sell for $150,000 to $250,000, the item realized £2,421,123. The high price was due to the rarity of the set—it is one of only five sets of silver cards, and it is the only complete one. But making the set even more valuable is its extraordinary history. The parcel-gilt silver cards were created in Augsburg, Germany in 1616.
Legend has it that the cards were eventually in the possession of Infanta Carlota Joaquina of Spain, Princess of Portugal and Brazil, and the daughter of King Carlos IV. When Napoleon forced the Spanish King to abdicate, the princess became claimant to the throne of Spain and Spanish America. It is believed she took the set with her when she was exiled from Europe and fled to Brazil. It is thought that Princess Carlota gifted the cards to the wife of Felipe Contucci, a man who helped her try to take the Spanish crown after Napoleon forced her brother to abdicate. Contucci passed the cards down through the family. Although the provenance is hard to prove, when the cards were sold in 2010, they came in an early 19th-century leather box with a brass plate with this provenance engraved on it.
Carpets and tapestries are luxury items with prices greatly influenced by provenance. Persian carpets have been collected over the centuries and may command very high prices at auction. In 2019, Christie’s sold a pair of silk and metal-thread Polonaise carpets for millions of dollars. It is likely that the carpets have been together since their creation over four centuries ago. The carpets were woven under the instruction of the ruler of the Safavid Dynasty, Shah ‘Abbas I of Persia, with each carpet typical of the elegant designs produced in Isfahan during the shah’s reign. At the time, Isfahan was the capital of Persia; today it is a city still renowned for its elegant art and architecture.
Carpets and tapestries are luxury items with prices greatly influenced by provenance. Persian carpets have been collected over the centuries and may command very high prices at auction. In 2019, Christie’s sold a pair of silk and metal-thread Polonaise carpets for millions of dollars. It is likely that the carpets have been together since their creation over four centuries ago. The carpets were woven under the instruction of the ruler of the Safavid Dynasty, Shah ‘Abbas I of Persia, with each carpet typical of the elegant designs produced in Isfahan during the shah’s reign. At the time, Isfahan was the capital of Persia; today it is a city still renowned for its elegant art and architecture.
The carpets made their way to the Polish court to the Elector of Saxony, Augustus the Strong (who would eventually serve as King of Poland). Interestingly, Augustus was known for his patronage of the arts. He built palaces in Dresden, including the Green Vault, one of the earliest public museums in Germany (and one that was recently the victim of a high-profile and devastating theft). After returning to Poland after a two-year sojourn through Italy and France, Augustus worked to amass a collection, including Persian carpets, to display his wealth and power.
Travelers during the 17th and 18th centuries noted the sophistication and beauty of carpets coming from Isfahan, and a number of the “Polonaise” style carpets ended up in Europe where they were popular with 17th century courts and gifted to high-ranking officials. They were particularly popular in Poland. (In fact, the Metropolitan Museum of Art has a Polonaise carpet on display.) In 1695, Augustus gave the carpets to Count Lothar Franz von Schönborn, Prince-Elector and Arch-Chancellor of the Holy Roman Empire. The Schönborn family commissioned beautiful Baroque buildings in southern Germany, including the Schloss Weißenstein (Weissenstein Palace). The summer palace came to house one of the largest collections of Old Master paintings in Germany, including works by Rubens, Titian, and Van Dyck. It was in this palace that the two Polonaise carpets remained for centuries. Interestingly, the original palace inventory labels remain on the carpets, bearing proof of their royal provenance. The two carpets sold at Christie’s were particularly coveted because of their pristine condition and vibrant colors. However, the royal provenance makes the items especially valuable. Each of the Polonaise carpets sold for nearly £ 4,000,000 last year.
It is a privilege to work with clients, including major collectors and dealers, to assist them with investigating their unique property. We work with some of the world’s leading provenance experts to examine works ranging from paintings, antiquities, illuminated manuscripts, photographs, automata, and even clothing. No two matters are alike, and we pair our extensive network of experts with our extensive expertise in art, cultural heritage, and intellectual property law. It is a pleasure to assist our clients in navigating the sometimes overwhelming art market.
People around the globe have been adversely affected by the Coronavirus; in the most extreme cases, it has led to death and serious illness. For businesses around the world, it has also been a difficult time. Events have been cancelled, transactions have been delayed, meetings have halted, and routines have been disrupted. Amineddoleh & Associates has transitioned to remote work during this difficult period. However, we are taking this time to share our art law expertise with blog posts and other online outreach efforts.
Last month, our founder presented a sold-out lecture, “The Importance of Provenance in Legal Matters and Ownership Disputes,” at the Frick Collection. The event was featured in Artnet’s Editors’ Picks as “12 Things Not to Miss in New York’s Art World This Week.” After February’s successful presentation, Leila was slated to speak at Maastricht University earlier this week at a conference planned in conjunction with TEFAF (The European Fine Art Fair). The preeminent fair closed early, and the university postponed the conference. It was unfortunate, but it was the best decision to protect public health and safety. Leila was also scheduled to speak at the American Bar Association’s Section of International Law Annual Meeting next month, but that event was cancelled. That conference is attended by thousands of attorneys from around the world, so the cancellation was quite disappointing. In light of these events, Leila will be authoring a number of posts that address the topics she planned to discuss at these venues. The other attorneys at the firm will also be contributing to our online posts.
Please visit our website in the coming days to access information about art crime and law matters. We are pleased to share this information with people around the world as the trade in art continues during this period. In the meantime, we wish the best of health to our friends and colleagues.
Photo: Leila Amineddoleh NOT performing on a destroyed Fazioli piano
Instruments, like fine art, must be carefully handled. Unfortunately, accidents do happen. A rare $194,000 Fazioli piano was destroyed when movers dropped it during its transit from a recording studio. The piano’s iron frame smashed when the 1300 pound instrument fell as movers attempted to lift it on to a trolley. The force of the break, compounded by the high tensions in the piano’s strings, was so strong that it split the piano’s lid in two.
The instrument belonged to Canadian virtuoso Angela Hewitt. Her F278 Fazioli piano was the only one in the world with four pedals. The pianist kept the instrument in her home in Italy. Fazioli Pianos originate in Sacile, near Venice, an area famed for woodworking. “There are six or seven top companies making good quality pianos. Different pianos appeal to different people according to tone and touch. The Fazioli is good for Bach,” said Simon Markson, managing director at Markson Pianos.
Hewitt said she will choose a new Fazioli in the next few months, writing, “I hope my piano will be happy in piano heaven.” Speaking of her destroyed piano, Hewitt said, “It was my best friend, best companion. I loved how it felt when I was recording — giving me the possibility to do anything I wanted.” Italian engineer and pianist Paolo Fazioli, the owner of Fazioli Pianos, deemed the instrument “unsalvageable.”
Similar to appraising unique fine art items, valuing an exquisite piano is challenging. Each piano is unique. And like with fine art, an instrument’s provenance (ownership history) affects its value. Here, the Fazioli piano’s value would have been boosted by the fact that it was owned and played by such a talented and well-known pianist. According to Terence Lewis, co-owner of London’s Jaques Samuel Pianos, “If that piano went to auction unbroken that [the piano’s ownership by Hewitt] would have given it a very large premium.”
It is important that all owners of valuable instruments properly insure their property. As Ms. Hewitt told CNN, she is handling insurance issues now. This serves as a reminder to all owners: it is important to regularly appraise valuable property and update insurance policies.
Carpets and tapestries are luxury items with prices greatly influenced by provenance. Persian carpets have been collected over the centuries and may command very high prices at auction. In 2019, Christie’s sold a pair of silk and metal-thread 
