Photo by Kerr Photography, via Flickr.
In a rare act of bipartisanship, Congress unanimously passed a new law geared toward helping Holocaust survivors and their families reclaim art looted by the Nazis. Approved by the House on Wednesday and the Senate late Friday night, the Holocaust Expropriated Art Recovery (HEAR) Act of 2016 now heads to President Barack Obama, who is expected to sign it into law. The bill loosens the statute of limitations in restitution cases, generally increasing the amount of time Holocaust victims and their heirs have to file a lawsuit seeking the recovery of a stolen work after it is discovered. Backed by prominent figures including actress Helen Mirren and collector Ronald Lauder, the law would provide a single federal statute of limitations for such cases. Though the new unified limit would streamline the legal process and potentially allow new cases, critics say the HEAR Act still falls short.
At its core, HEAR is an attempt by the U.S. federal government to address a so-called affirmative defense that has vexed plaintiffs seeking restitution. Essentially, rather than debate the ethical substance of a claim—in short, rather than debate if a work was indeed looted—the institutions, collectors, and even foreign nations on the receiving end of such lawsuits have instead delayed or defeated court cases by asserting that the statute of limitations has expired. “There’s a very uncomfortable trend that has been happening lately where museums have hunkered down trying to hold on to looted works of art and use the statute of limitations in their favor,” said Christopher A. Marinello, founder of Art Recovery International, a firm specializing in cultural heritage law and the restitution of Nazi-looted art.
Without a uniform time limit at the federal level, each affirmative defense requires a lengthy, complex debate over the laws in the corresponding state where the case was brought. For instance, in Marei von Saher’s lawsuit against the Norton Simon Museum regarding two paintings by Lucas Cranach the Elder, the first few years were spent arguing over California’s statute of limitations. (The case was dismissed this year, but for reasons unrelated to issues directly addressed by the HEAR act.)
“There’s a great deal of dispute over whether, as an ethical proposition, the statute of limitations ought to be asserted in response to claims like these,” said Nicholas O’Donnell, a partner at Boston law firm Sullivan & Worcester who has written about HEAR for the Art Law Report.
Though the specifics vary, states generally allow heirs three years to bring a lawsuit seeking restitution, starting from the date the allegedly Nazi-looted work is discovered. The HEAR Act doubles that limit to six years; plus, beyond increasing the limit for future cases, its passage will revive past cases in which discovery occurred more than three but less than six years ago. Proponents hope the law will minimize the length and frequency of limitation debates, potentially shaving years off litigation while lightening the emotional and financial burden faced by plaintiffs. “In that way, I applaud it,” Marinello said of the law. “It gives claimants a lot more hope.”
Yet the HEAR Act, which would supersede relevant state laws, does not entirely do away with timeliness as a factor for an affirmative defense. Nor is the addition of three years expected to alter the fate of cases more than six years old, let alone the countless cases from decades ago. Nevertheless, by providing broader clarity on the statute of limitations for these restitution cases, the law can help shift focus away from the finer points of law and toward the actual history and facts underpinning a specific case. “If you’re arguing about how long ago something happened, you’re just counting years. You’re not arguing about whether the taking was rightful or wrongful,” O’Donnell said, adding that, in terms of substantive questions, the HEAR Act “is a positive thing. It will lead to more of those questions being addressed head on.”
The law will have an outsize impact in New York, thanks to the state’s special “demand and refusal” rule. Generally, in other states, the countdown clock begins on the date of discovery. But in New York, the three-year window begins not with the discovery of a work but only after a demand for its return is made and subsequently refused (thus, “demand and refusal”). Victims and heirs are therefore under no pressure to file a lawsuit immediately after discovery, which allows for more flexibility and negotiation prior to filing suit. However, in providing a new national standard, the HEAR Act overrides New York’s “demand and refusal” rule—replacing it with a six-year limit that always begins with the date of discovery. So, under the new law, claimants who previously knew about a work but chose to delay litigation, as was their right, must in the future work within the standard six-year window.
Beyond this major revision to the statute of limitations, the bill also affirms that it is U.S. foreign policy to return looted works of art. “That seems perhaps obvious,” O’Donnell said, “but it is something that is litigated constantly.” He points to his own experience against defendants claiming that U.S. restitution was limited to returning a looted artwork to its source country rather than the offended party after the Second World War. The HEAR Act lays such a defense to rest.
Broadly, Marinello approves of the law but calls it “imperfect.” He says more must be done to get heirs to come forward with claims, and he stresses the significance of creating a centralized database of looted work, something he aims to do with his recently launched nonprofit, Artive. Others have questioned why specific exceptions are being carved only for works looted during the Holocaust. “We should have laws of general applicability,” Thomas Kline, president of the Lawyers Committee for Cultural Heritage Preservation, told The Art Newspaper. “In Cyprus, the Ottoman Turks killed civilians and they destroyed art. So it’s 1,500 people instead of 15 million, but they’re just as dead, and the deaths were out of disrespect for the culture and the people, as was the looting. And Armenians would tell you the same thing.”
Still, experts including Klein see the HEAR Act as a positive step forward for art restitution. Indeed, the bill’s passage is at the very least a symbolic victory, showing Holocaust victims and their families that the issue can bring together even our bitterly divided Congress.
May 4–8, 2018, Park Avenue Armory