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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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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.

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