CONTENTS I. INTRODUCTION II. BACKGROUND OF MEYER V. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA III. THE MUSEUM'S RESPONSIBILITY TO PERFORM DUE DILIGENCE IN DETERMINING THE PROVENANCE OF LA BERGERE A. THE ALLIANCE'S STANDARDS B. THE ASSOCIATION'S GUIDELINES IV. UNIVERSITY OF OKLAHOMA'S BEST ARGUMENT V. THE MEYER SETTLEMENT AGREEMENT VI. POLICY CONCERNS VII. CONCLUSION AND ALTERNATIVE SOLUTIONS I. INTRODUCTION
The Holocaust, recognized as one of, if not the most, terrible atrocities in world history, led to the massacre of millions of Jews in Europe. (1) In addition to murdering millions of people and effectively changing the lives of millions more around the world, the Nazi regime confiscated countless works of art from Jewish families. (2) Some sources estimate that [the Nazis] looted between one-fourth and one-third of Europe's art. (3) The Nazis stole artwork across Europe both to humiliate the Jews and for their personal benefit, as Nazis added many stolen pieces to their private collections, In so doing, the Nazis "created entire legal structures based around stripping Jewish people of their legal rights and their possessions, including art." (4) The Nazi regime passed several "statutes and decrees designed to deprive Jews of civil, political, and economic rights," setting the stage for the Holocaust. (5)
After World War II ended, European governments attempted to recover the stolen art and cultural artifacts belonging to Jewish families. (6) The European governments failed, however, to recover or return large numbers of works because they were in private collections, records of the previous owners or locations had been lost, or other factors. (7)
In subsequent decades, pieces of art began to show up in U.S. art museums as a result of donations, bequests, and purchases. (8) Seeing this, original owners and their heirs came forward in increasing numbers to reclaim these pieces. (9) These claims marked the beginning of a decades-long struggle to determine the rightful owners of the pieces and the obligations museums have to research the provenance of pieces in their existing collections and for future gifts and purchases. (10)
In the 2014 case of Meyer v. Bd. of Regents of the Univ. of Okla., victims of looting asked a court to resolve ownership of a piece of artwork that the Nazis had looted, and was sold several times, and ultimately donated to the University of Oklahoma. (11) This case provides just one example of the issues facing claimants, museums, and courts regarding Nazi-looted art. Although this case reached a settlement, the lack of consistency and uniformity in this area of the law necessitates stronger guidelines to protect the competing interests of claimants and museums to the disputed pieces of art.
BACKGROUND OF MEYER V. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA
Meyer involved a painting by Camille Pissarro known as La bergere rentrant des moutons (La Bergere), or Shepherdess Bringing in Sheep, (12) which is currently on display in the Fred Jones Jr. Museum of Art (the Museum). (13) The plaintiff, Leone Meyer, is the daughter of Raoul Meyer, whose extensive art collection included La Bergere. (14) The plaintiff alleged that the Nazis seized La Bergere during World War II. (15) After she discovered the location of La Bergere at the Museum through a blog post in 2012, Meyer filed suit to recover the painting and return it to the possession of her family. (16)
Raoul Meyer was a prominent Jewish-French citizen who possessed a large collection of French art that he had placed in a branch of the French bank, Credit Commercial de France, in March 1940, in an effort to protect it from confiscation by the Nazis. (17) Despite his efforts, the Nazis looted Meyer's collection, as well as countless other works of art belonging to other French families, in early 1941. (18) After the end of World War II in 1945, the French government created the "Commission de Recuperation Artistique" (the Commission) to research the artworks looted from private collections during the war. (19) Meyer gave the Commission an inventory of the works in his collections that the Nazis stole. (20) The Commission was able to return several works to Meyer between 1946 and 1949, but La Bergere was not among them. (21) Meyer subsequently registered the painting as looted with the Repertoire des Biens Spoiles en France Pendant la Guerre de 1939-1945 (The Repertoire). (22) The Repertoire was a list of looted but not yet returned works distributed to the governments of Europe and the Americas to alert them of looted works that might be located in their territories. (23) The Repertoire was also distributed to a number of museums, including the Metropolitan Museum of Art of the Frick Collection and other galleries in New York. (24)
In 1953, Raoul Meyer learned that Christoph Bernoulli, a Swiss art dealer, possessed La Bergere. (25) Upon discovering the painting's location, Meyer sued Bernoulli in Switzerland in an attempt to recover the painting. (26) On July 25, 1953, a Swiss court issued a written verdict in favor of Bernoulli, naming him the good-faith owner of La Bergere. (27) Meyer did not appeal the judgment. (28) Bernoulli offered to sell the painting back to Meyer, but Meyer rejected the offer and soon lost track of the painting. (29)
In the winter of 1956, La Bergere was placed on display at David Findlay Galleries, in New York, as part of an exhibit of a collection belonging to an art dealer from Amsterdam. (30) The exhibit spanned from November 15, 1956, to December 15, 1956. (31) After it ended, Aaron and Clara Weitzenhoffer purchased the painting from Bernoulli through the David Findlay Gallery. (32) David Findlay was a family friend of Clara Weitzenhoffer, and he had encouraged her accumulation of French Impressionist works over the years. (33) Clara collected pieces for her private collection, including a number by Renoir, Monet, Degas, and Van Gogh, and eventually her collection grew to encompass each phase of the Impressionist movement. (34) According to the Weitzenhoffer's son, Clara purchased works of art because she liked them, not as an investment. (35) Clara nurtured and expanded her collection until her death. (36)
In 2000, the Weitzenhoffers' estate made a $50 million bequest to the Museum. (37) The donation was comprised of Clara's entire private collection of all 33 works, including La Bergere. (38) At the time of the bequest, no other public university in the U.S. had a collection to rival the Weitzenhoffer's gift. (39) Indeed, few people outside the Weitzenhoffer family had even known of Clara's collection during her lifetime due to her fear of vandalism or theft, and her desire to retain her privacy. (40) After the initial exhibit concluded, the Museum designed a new wing to display Clara's collection. (41) The wing was a replica of the Weitzenhoffer's home, which was filled with her collection of 17th and 18th century antiques, in addition to her lustrous art collection. (42) The collection remained undisturbed and on permanent display in the new wing until 2012, when Leone Meyer learned of La Bergere's location through the blog post of an expert in the field of Nazi-looted art. (43) Shortly thereafter, she filed suit to recover La Bergere. (44)
THE MUSEUM'S RESPONSIBILITY TO PERFORM DUE DILIGENCE IN DETERMINING THE PROVENANCE OF LA BERGERE
As a member of the American Alliance of Museums (the "Alliance"), the Museum is bound by the Alliance guidelines adopted in 1998 with respect to Nazi-confiscated art. Meyer argued that the Museum had the responsibility to take reasonable steps (45) to determine the provenance of the painting, as required by the Alliance's guidelines which were in effect at the time of Clara's bequest. Due to the nine-year gap between Weitzenhoffer's bequest and discovery of provenance information in 2009, Meyer alleged that the Museum failed to perform a meaningful investigation into title or perform sufficient provenance research since this information was attainable. (46) The creation of the Alliance's guidelines reflected a national attempt to return family heirlooms and art to Holocaust victims. (47)
In the second half of the 1990s, the U.S. made several efforts to address the issues surrounding the conflicting claims of ownership and determine obligations between museums and "good faith" purchasers of Nazi-confiscated art appearing in American museums. (48) Congress passed the Holocaust Victims Redress Act (HVRA) in 1998 to encourage "good faith efforts to facilitate the return" of Nazi-confiscated property, including irreplaceable works of art. (49) The HVRA set forth the "sense of Congress" to help Holocaust victims regarding Nazi-looted property. Additionally, in 1998, the U.S. government organized the Washington Conference to discuss solutions to provide redress to Holocaust victims and their families, including returning works of art or providing restitution. "Specifically, the goal [of the Washington Conference] was to create a consensus of how to manage the issues of recovery and restitution of looted art, religious, cultural and historical objects, communal property, insurance claims, and other related matters." (50)
The Conference resulted in the creation of eleven principles. (51) Principle number eight states, " [i]f the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case." (52)
Despite intense scrutiny and vigorous debate on the issue, the Principles were neither legally binding nor agreed to by formal agreement by the parties attending the Conference. Rather, the parties adopted the Principles as voluntary commitments "based upon the moral principle that art and cultural property...