A team of experts is investigating a painting bought for under $50 at a garage sale, believing it to be an undiscovered portrait by Vincent van Gogh.  The story illustrates some of the newest methods—and thorniest challenges—of authenticating art.

Grossman LLP associate Maria Angela Brusco recently spoke on a panel at the Art Law Institute of the New York County Lawyers’ Association (NYCLA), focusing on the legal implications of collectors’ promises to make gifts of artworks in the future.  Below, she summarizes some key insights from the event.

In recent weeks, the families of two different victims of Nazi persecution have filed suit in federal court, each suing a major museum over artwork taken from their ancestors during the Nazi era.  These cases continue to raise complex legal questions about the painful legacy of a brutal regime and its massive displacement of art throughout Europe during the years before, during, and after World War II.

Amidst the social and economic fallout of the COVID-19 pandemic, the Association of Art Museum Directors (AAMD) has temporarily revised the guidelines it imposes on its members.  Recognizing that museums (like many other art-related businesses) are struggling to stay afloat, the AAMD is easing certain restrictions on the use of trusts, donations, and gains from endowment investments, and on the use of proceeds from deaccessioning artworks.  

A three-judge panel for the Second Circuit Court of Appeals has agreed with the lower court’s decision that the Metropolitan Museum of Art may keep a “rose period” Picasso painting despite claims that it was sold by a German-Jewish family to escape Nazi persecution in Italy during World War II.  See Zuckerman v. The Metropolitan Museum of Art, Case No. 18‐634, -- F.3d – (2d Cir., June 26, 2019).

Earlier this week, the Ninth Circuit Court of Appeals issued the latest—and likely final—ruling in Marei von Saher’s decades-long attempt to recover artwork looted by the Nazis from her late father-in-law.  In ruling against von Saher, the Ninth Circuit has ensured that the Cranachs will remain in the museum, and accessible to the public, for the foreseeable future.  This ruling will have significant implications for heirs of those who originally owned Nazi-looted artworks, especially where such heirs have already tried and failed to recover artwork through the official restitution channels instituted by European governments in the post-war years.  

The Museum of Modern Art—universally known as MoMA—has filed a lawsuit against MoMaCha, a Lower East Side art gallery and café with a curiously similar name to the museum’s famous moniker.

​Several stories in the news recently have turned a spotlight on the complex world of collecting art and historical artifacts across international borders—and serve as a reminder of the importance of diligence and legal advice in such transactions.

In a lengthy opinion issued earlier this week, Judge Loretta A. Preska of the U.S. District Court for the Southern District of New York ruled that the Metropolitan Museum of Art may keep a noteworthy Picasso artwork, even though its German-Jewish former owners sold it for a fraction of its actual value to finance their safe passage out of fascist Italy.

Current events are sparking a larger conversation about the role of museums and their responsibilities to the communities in which they reside and to the public at large.

In our ongoing coverage of case law involving Nazi-looted artworks, we have written before about the long-running lawsuit over a Pissarro painting, Rue St. Honore, après midi, effet de pluie. Back in 2015, we wrote about a district-court decision that dealt a possibly-fatal blow to the claimants, who were seeking to recover the work from a collection controlled by the Spanish government. Earlier in July, however, the Ninth Circuit Court of Appeals reversed that decision, meaning the painting’s claimants can continue their fight in the federal courts.

The U.S. Supreme Court has granted certiorari in Rubin v. Islamic Republic of Iran, a case out of the Seventh Circuit regarding the ability to execute on a judgment by seizing Iranian artifacts held in American museums. The case will likely resolve a circuit split over whether victims of state-sponsored terrorism can collect on judgments by targeting assets of the foreign state held in the United States, even if those assets are otherwise protected by the Foreign Sovereign Immunities Act (FSIA).

Under a recently enacted federal law, foreign states have been granted sovereign immunity in controversies over the temporary exhibition of artworks and cultural objects on loan to the United States, The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, signed at the end of last year by President Obama, grants immunity from federal or state-court jurisdiction to foreign governments, where an artwork or cultural object from that country has been imported for a temporary display at a U.S. cultural or educational institution.

A new lawsuit was filed in New York federal court in mid-January against the famed Getty Museum over a series of negotiations regarding an Italian collection of classical art. The plaintiffs are entities who claim they spent considerable time and effort preparing the collection for sale, laying the groundwork for a deal, and facilitating delicate communications between the Getty, Italian officials, and the collection’s owners; but were later frozen out of those other parties’ dealings, leaving the plaintiffs empty handed.

The art world is watching with concern the unfolding story of a fake Frans Hals painting; facts are still developing as of this writing, but it’s possible that the work may not be an isolated forgery but rather the harbinger of a larger group of well-executed fakes that could shake up the Old Master market.

We have previously covered the litigation arising out of the 2007 sale of a Rothko masterpiece; the work’s seller sued the buyer and an intermediary dealer over alleged violations of a confidentiality provision in the sale contract, after the buyer and dealer resold the piece in a highly publicized 2009 auction.  In late September, the Fifth Circuit Court of Appeals issued a decision in favor of the defendants, in an opinion that serves as a reminder about the importance of clear contracting in art transactions.

Litigation involving art displaced during World War II—and with it the continued focus on the need for adequate pre-acquisition due diligence—is in the news again with the recent filing of complaint against the Metropolitan Museum of Art regarding Pablo Picasso’s The Actor.  See Estate of Leffman v. The Metropolitan Museum of Art, 16-cv-7665 (S.D.N.Y.)

The spotlight once again is focused on questions concerning the appropriate level of pre-sale diligence in art transactions, this time with allegations against the National Gallery in London.  On Tuesday, the heirs of Margarete “Greta” Moll brought suit against The National Gallery of Art seeking to recover a painting by Henri Matisse, Portrait of Greta Moll, allegedly lost in the aftermath of World War II.  Williams v. The National Gallery of Art, London, et al., Case No. 16-cv-06978.

We have written before about a long-running legal battle between the Norton Simon Museum in Pasadena, California, and the heir to a Jewish Dutch art dealer who fled the Netherlands in 1940.  The focus of the dispute is a diptych (two painted panels) titled Adam and Eve, painted around 1530 by German Renaissance artist Lucas Cranach the Elder.  A recent district court decision dealt a possibly fatal blow to the claims by plaintiff Marei Von Saher, although she plans to appeal.