CONTENTS I. THE NIGHT CAFE: UGLINESS THEN AND NOW II. "[C]OMMIT[TING] CRIMES": THE CONSPIRATORS III. THE EVIDENCE BEHIND THE CURTAIN: THE PAY-OFF TO AN UNNAMED SOVIET CURATOR OR OFFICIAL IV. THE ACT OF STATE DOCTRINE APPLIED V. SCALIA AND KIRKPATRICK IGNORED VI. THE COURT OF APPEALS JUDGES FURTHER MUDDY THE WATERS WITH AN UNPUBLISHED OPINION ("SUMMARY ORDER") VII. WHAT CAN BE DONE? I. THE NIGHT CAFE: UGLINESS THEN AND NOW
Vincent van Gogh described The Night Cafe, painted in 1888 in Arles, as one of his "ugliest" paintings. (1) This unsettling work has elicited other descriptions, such as "a vision of hell ... [that evokes] instability, uncertainty, [and] the indeterminacy of being." (2) Yet it is also a vision that has managed to go beyond its era, as questions of the painting's rightful ownership continue to abound. I was the principal attorney in the recent litigation over the Yale University Art Gallery's ownership of the work. (3) I have no intention to retry the case in writing this essay, but only to shed some light on the uncertainty that continues to surround The Night Cafe's rightful ownership. Unfortunately, the Second Circuit Court of Appeals' unpublished ruling, issued on October 20, 2015, that only adds to that uncertainty. (4)
"[C]OMMIT[TING] CRIMES": THE CONSPIRATORS
In my painting of the night cafe I've tried to express the idea that the cafe is a place where you can ruin yourself, go mad, commit crimes ... in an ambiance of a hellish furnace, in pale sulphur.
--Vincent van Gogh (5)
At first glance, the painting appears to depict a cafe interior with a billiard table and several patrons, including two lovers at a corner table. (6) In a letter Van Gogh wrote to Emile Bernard, he refutes that impression, identifying the female figure as "a whore sitting there at the table with her fellow." (7) Perhaps they are negotiating a fee, or plotting a crime.
Were Van Gogh to repaint The Night Cafe to reflect the ensuing history of disputed claims to the painting's true ownership, it seems likely, based on papers of public record, (8) that he would begin by replacing the male and female pair with figures of Steven Clark, an avid art collector, (9) and Charles Henschel, Director of New York's Knoedler Gallery. (10)
Before Clark acquired The Night Cafe in May 1933, an outright purchase seemed impossible. (11) The work had been the star of Russian businessman Ivan Morozov's collection of French Impressionist paintings when the Bolsheviks confiscated them in 1918 and then fell under the control of the Soviet Union as the successor government. (12) By the 1930s, the Soviet regime had sold works confiscated from the Romanoff czars' collection to Paul Mellon and J.P. Morgan for millions of dollars in an effort to fund industrialization projects. Yet the comparatively low price commanded by the Van Gogh painting offered little incentive for the Soviets to sell it. (13) Additional impediments to Clark's acquisition of the work included the U.S. government's likely opposition to the purchase, given America's refusal to recognize the Soviet Union and trade with it after the Bolsheviks failed to provide compensation for illegally seized U.S. property. (14) Clark and his dealer Henschel also realized that an open transaction would likely draw the attention of the exiled members of the Morozov family in France, (15) who could then bring suit to reclaim the painting.
To overcome the obstacles blocking Clark's acquisition of the Van Gogh, Clark and Henschel hit upon a scheme of surreptitious acquisition. (16) Henschel revealed that Knoedler Gallery had good relations with the newly formed Mattieson Gallery in Berlin, the arm for the then-ascendant Nazi Party's acquisition of world masterpieces, including those in the Soviet Union. (17) The ostensible plan was for the Mattieson Gallery to bribe a Russian official to release the painting to the gallery, which would then make its way to Knoedler's in New York, where the final sale to Clark would be arranged with no trace of its origins. (18) As a measure of safety, Henschel advised Clark to keep the painting under wraps at his home for many years before public display. (19)
In accordance with Henschel and Clark's scheme, it appears that a Soviet official was bribed in 1933 to release The Night Cafe to Mattieson. (20) Later that year, Clark acquired it from Knoedler. (21) At his death in 1960, Clark bequeathed The Night Cafe to Yale University, which received the work in 1961. (22) No record officially approving the work's sale to Clark exists. (23) More specifically, there is no chain of provenance showing that the painting had been duly acquired through a legitimate sale. (24) Yale's title is as good as that of Clark, and Clark appears as a thief.
This narrative is the essence of the argument made by Pierre Konowaloff, Ivan Morozov's great-grandson and sole heir, after Yale filed suit in 2007 for a judicial imprimatur recognizing that The Night Cafe was the university's to own, display, and, if it so chose, to deacquisition. (25)
Three years earlier, Pierre Konowaloff had been invited to Russia to be honored for his family's acumen in assembling an important group of French Impressionist paintings. (26) While in Russia, Konowaloff discovered that Yale University, not Russia, had possession of The Night Cafe. (27) When he made inquiries, Yale told him that the statute of limitations bared him from bringing up the question of good title. (28) Uncomfortable with the challenge posed by Konowaloff, Yale preemptively filed suit in the U.S. district court in Connecticut for a declaration of good title. (29) Konowaloff, named as the defendant, counterclaimed. (30) At first, he asserted that Yale stood in the shoes of a thief because the Bolsheviks' confiscation violated international laws' prohibition of selective taking of cultural property, in distinction to legitimate nationalization policies by different economic systems. (31)
After further evidence emerged about the manner of Clark's acquisition, Konowaloff amended his argument. He renounced any challenge to the confiscation. (32) Instead, he informed the district court that he would be traveling to Russia to try to unravel the mysterious circumstances surrounding the painting's "sale." (33) Yale objected to the trip as a fishing expedition, but the district court allowed Konowaloff to proceed. (34)
When potentially damning evidence arrived from the Russian Federation under official seal, suggesting that Soviet officials had turned a blind eye to the underhanded nature of the painting's sale, Yale abandoned its pursuit of a declaration of good title. (35) Instead, it filed for summary dismissal of Konowaloff's claims, thus assuring that the Russian Federation documents would never see the light of day. (36) The district court ruled in Yale's favor, on the theory that the Act of State doctrine forbade it from allowing these facts to go public. (37)
On October 20, 2015, the Court of Appeals for the Second Circuit, to whom Konowaloff had appealed the district court's ruling, delivered a "Summary...