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Adele, the Lady in Gold

Austria: the restitution of works of ART

ONE OF THE MOST WELL-KNOWN ART RESTITUTION CASES HAS TO BE THE DISPUTE OVER KLIMT’S PORTRAIT OF ADELE BLOCH-BAUER I.

The heirs of Ferdinand and Adele Bloch-Bauer fought for years to have the painting, and many others, returned to them. In 2006, Austria returned the painting to the heirs. It was then sold to Ronald Lauder for 135 million US$ and can now be admired at the New Gallery in New York. In 2015, an abridged version of the legal battle was seen in cinemas in The Woman in Gold, starring Helen Mirren as the main character. Another case is currently plastered across all news outlets: in 2001, Klimt’s Apfelbaum II was returned to Nora Stiasny’s relatives… erroneously, as the painting never belonged to them. Nobody knows where the painting is today. These prominent cases offer an opportunity to delve into the legal technicalities of the restitution of works of art.

In 1998, the Austrian Parliament unanimously approved the ‘Kulturrückgabegesetz (KRG)’ which, loosely translated, means ‘the cultural restitution act’. The legislation regulates the restitution of works of art possessed by Austria when they were unjustly confiscated during the Nazi period or when they were left to the Government after 1945 as a ‘payment in return’ for the distribution of export licences of other works of art. At the time, most of the emigrated owners approved said ‘transfer’ after 1945 because that way they would have been able to take at least some of their works of art out of Austria. In the KRG, the Federal Minister for Education, Arts, and Culture is tasked with determining the original owners and return works of art to them or their successors. However, prior to returning the works of art, the Minister has to seek the counsel of an advisory board that will assess the submitted recommendations based on a report drafted by the ‘Committee for Assessing Provenance’.

While the law doesn’t guarantee the original owners or their relatives any legally applicable right to having a work of art returned, up until now tens of thousands of works have already been returned. In these matters, researching the provenance of a work is extremely complicated, so much so that it’s not always possible to determine the original owners or their relatives. Works of art can therefore be transferred to the ‘National Fund for the Victims of National Socialism’ for exploitation. And, as seen by the erroneous return of Klimt’s Apfelbaum II, errors do happen when determining the provenance of a painting. Some regions and municipalities, too, have passed local legislation to return their works of art, to ensure those works not covered by the federal law or belong to the Government aren’t overlooked.

The case of The Lady in Gold is slightly more complicated. At the start of the 20th century, Ferdinand Bloch-Bauer commissioned painter Gustav Klimt to paint his wife, Adele Bloch-Bauer. He also paid for the painting. When Adele passed away in 1925, her will asked her husband to consider giving the painting to the Austrian National Gallery, in the Belvedere, after her death. Ferdinand Bloch-Bauer promised to fulfil her request during the probate proceedings. In 1938, Ferdinand emigrated to Prague, then to Switzerland. His Austrian assets, left in the country, were seized by the Nazis as repayment for allegedly overdue tax payments. In 1940, Ferdinand agreed nolens volens to a settlement to repay the allegedly overdue taxes (which were probably invented by the Nazis). According to the settlement, The Lady in Gold, among others, went to the Austrian National Gallery.

After 1945, Ferdinand and his relatives put all their efforts into having The Lady in Gold as well as other paintings returned to them. In 1948, to ensure they received an export licence for the other paintings, they acknowledged that The Lady in Gold belonged to the Austrian National Gallery as Ferdinand had transferred it to them in 1925 during the probate proceedings. The painting remained at the Belvedere. In 1999, Maria Altmann, one of the heirs, wished for the painting to be returned to her following the newly approved KRG. However, the advisory board rejected her request and the Federal Minister, Ms Elisabeth Gehrer, denied the restitution of the painting. In the wake of this decision, the relatives in America took the Federal Republic of Austria to court. In May 2005, however, both parties reached a compromise, and the case continued under the jurisdiction of an Austrian court of arbitration. On 15 January 2006, the Court ultimately decided the prerequisites to return the painting were all in place. The Government then returned the painting to Ferdinand Bloch-Bauer’s heirs.

The legal issues relating to The Lady in Gold were somewhat complex: at the start, it wasn’t clear who the rightful owner of the painting was back in 1925, the year of Adele’s death. Did it belong to Ferdinand or Adele herself? After all, Ferdinand had commissioned and paid for the painting. However, he may have given it as a present to Adele. Had Ferdinand been the owner of the painting, Adele could not have included it in her will. If Adele had been the rightful owner, the question was whether she could have forced her husband to give the painting to the Austrian National Gallery and whether Ferdinand’s promise to do so would be legally binding. The quality of the 1948 settlement between Ferdinand and the Government was also questionable, following the export of other paintings. In the settlement, the heirs basically admitted that, due to the instructions in Adele’s will, the painting belonged to the Republic of Austria. The Court of Arbitration didn’t satisfactorily address all those issues, rather deemed it sufficient that the painting had been used as a bargaining chip to ensure the export of other works of art after 1945. It therefore decided in favour of the heirs. The case is a perfect example to illustrate how difficult and complex the process of art restitution can be, and that there aren’t always unequivocal solutions. In this case, legal matters were key, while historical and factual knowledge proved indispensable for the Apfelbaum II case.

For further information on art restitution: www.kunstrestitution.at

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<p>Dr. Georg Huber, LL.M. ist Partner der Innsbrucker Rechtsanwaltskanzlei Greiter Pegger Kofler & Partner. Er hat in Innsbruck und Chicago studiert und ist sowohl in Österreich als auch New York als Rechtsanwalt zugelassen. Zu seinen bevorzugten Tätigkeitsgebieten zählen unter anderem IT- und IP-Recht, wobei er sich auch immer wieder mit urheberrechtlichen Fragen befasst.</p>

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