Certified Legal Translation Services for Art Provenance Research
How Expert Testimony by an Austrian Art Historian and Certified Translation of German Documentary Evidence Led the NY Court to Return the Artwork to Holocaust Heirs
Legal interpreter services, certified translation of legal, historical, genealogical and archival documents accompanied by cursive transcription of legal, genealogical and historical manuscripts and documents handwritten in German, Polish, French, Hebrew, Italian, Turkish, Lithuanian, Hungarian, Spanish, and other foreign languages is often required for probate litigation cases; land cases; and art provenance cases. Provenance refers to the history of ownership of a valuable object, particularly art. Over time, provenance research has evolved from merely highlighting prestigious collections to documenting complete ownership chains, especially in cases involving artworks from the Nazi era. Since the late 1990s, provenance research has become a specialized field focusing on closing gaps in ownership transfers. This shift was prompted by Nazi-era art claims, new research guidelines (such as the Washington Conference Principles), and the reunification of Germany, which spurred property claims.
Provenance research today is a meticulous process, relying on primary sources, archival documentation, and historical resources often in foreign languages. The goal is to uncover facts about ownership transfers, though gaps are common due to the passage of time and missing evidence, especially for Holocaust-era claims. Each case must be assessed individually, based on available documentation and corroboration from surviving witnesses. Today we are discussing the case of Robert Owen Lehman Foundation, Inc. v. Israelitische Kulturgemeinde Wien, Misc.3d 1265(A), 215 N.Y.S.3d 759, 2024 N.Y. Slip Op. 51041 (August 1, 2024).
New York Trial Over Austrian Artist Egon Schiele’s “Portrait of the Artist’s Wife”
This New York case involves a dispute over the ownership of Portrait of the Artist’s Wife (the Drawing), a 1917 work by Austrian artist Egon Schiele, which was a study for a larger oil painting of the artist’s wife. The NY Supreme Court in Monroe County held a trial in May 2024 to resolve a three-way ownership conflict. Three groups claimed title to the Drawing – the heirs of an Austrian who died in the Holocaust (the Mayländer heirs), the heirs of an Austrian collector (the Rieger heirs), and an American that later purchased the work at a London gallery (Robin Lehman). In the end, the court ruled that the Mayländer heirs were the rightful owners of the artwork and that it must be returned to them.
The Artist – Egon Schiele
Schiele, born in Austria in 1890, is widely regarded as one of the greatest Austrian graphic artists of the 20th century. Schiele was incredibly prolific, creating art daily and amassing a significant body of work, including around 300 oil paintings and 3,000 watercolors and drawings. However, much of his art was poorly documented, with many pieces left untitled. He died at the age of 28 from the Spanish flu. After his death in 1918, his works, like many others, were caught up in the turmoil of the Nazi era, which saw widespread confiscation and duress sales of Jewish-owned art during the Anschluss (Nazi annexation of Austria in 1938). The Nazi regime systematically persecuted Jews, seizing property, including art collections, as they sought to flee. The court recognized that Jewish property, often taken through forced sales or duress, was subject to restitution under Austrian law.
Kallir’s Catalogue Raisonné is Compiled
Otto Kallir created the first catalogue raisonné of Egon Schiele’s work in 1930. A catalogue raisonné is a comprehensive record of an artist’s entire body of work, serving as a key reference for collectors, art historians, and curators. It organizes and documents the artist’s works systematically. In the early 1980s, Jane Kallir and Otto’s longtime business partner, Hildegard Bachert, decided to compile and publish a comprehensive catalogue raisonné of Schiele’s work. This catalogue was first published in 1990 and later expanded in 1998. Jane Kallir’s Catalogue Raisonné was the first to focus on Egon Schiele’s extensive collection of works on paper in addition to his paintings. It includes detailed descriptions, literature references, exhibition history, and an overview of ownership and provenance of each artwork.
Lehman Purchases the Drawing
While the Drawing’s whereabouts before 1964 is debated, that year it was acquired by Galerie Galatea in Turin, Italy, which sold many works by Schiele in the 1950s and 1960s. On July 9, 1964, Marlborough Gallery in London purchased the Drawing from the Galerie Galatea for 1,800,000 Italian Lire. The Drawing was featured in a Schiele exhibition at Marlborough Gallery in 1964, which Robin Lehman and his father, Robert Lehman, the longtime head of the Lehman Brothers investment bank, attended. Robin admired the Drawing, and his father purchased it on November 16, 1964.
Who Was Karl Mayländer?
Karl Mayländer was born in 1872 to a Jewish family in Vienna. He inherited his father’s textile business but never married and did not have children. In the 1920s, Karl was on the board of Volksheim-Ottakring, an adult education center, and was passionate about providing educational opportunities for underprivileged adults. He was also an important art collector, particularly of Egon Schiele’s works, and organized a significant Schiele exhibition in 1928, ten years after the artist’s passing. Karl had known Schiele personally. Schiele had made at least two portraits of Karl in 1917.
When the Nazis occupied Austria in 1938, Karl was forced to declare his assets, which included a library and art collection. Due to persecution, he tried to sell his art to fund his escape from Vienna but was unsuccessful. Eventually, in 1941, Karl transferred his art collection to Etelka Hoffman, a woman he met through the Volksheim-Ottakring. The exact nature of their relationship is unclear, but Etelka later loaned pieces from Karl’s collection to museums after the war.
Karl was deported to a ghetto in Łódź, Poland, in 1941, where he was murdered by the Nazis. They seized his remaining assets in 1943. Despite Hoffman’s claim of ownership of Karl’s art collection post-war, the Austrian government has since restituted pieces from Karl’s collection to his heirs.
In 1930, the magazine Parnassus, edited by the College Art Association of America, published an article by Viennese art historian Heinrich Glück featuring a reproduction of the Drawing. The article mentioned the Drawing was recently shown at the Neue Galerie in Vienna but did not specify dates or ownership. Glück, familiar with Dr. Rieger’s art collection, was also a curator in Austria.
Post-World War II, there was a shift toward restoring cultural losses, particularly those of Jewish families. As archives became more accessible over time, a new generation of art historians worked to recover lost cultural property.
The Drawing Resurfaces
The Drawing resurfaced when it was sold by Galerie Galatea to Marlborough Gallery, where Robert Lehman purchased it in 1964. Lehman later gifted the Drawing to his son, Robin. When Robin formed the Robert Owen Lehman Foundation (ROLF), the Drawing was donated to the foundation.
Robin sought to sell the Drawing through Christie’s in 2016 but was informed of possible Holocaust-era ownership claims. After investigations by Christie’s and involvement from the U.S. Attorney and FBI, the Drawing’s provenance remained contested, leading to the current legal dispute with claims from the Mayländer and Rieger heirs.
The Burden of Proof
In this legal case, the burden of proof was based on a “preponderance of the evidence,” meaning the court had to be persuaded that it was more likely than not that the Rieger heirs’ claim, the Mayländer heirs’ claim, ROLF’s claim to the Drawing was valid. After thoroughly examining the evidence, the court concluded that neither the Rieger heirs nor ROLF met this burden.
The Rieger heirs claimed that Dr. Heinrich Rieger, a noted collector of Egon Schiele’s works, had owned the Drawing. They cited an article from Parnassus magazine, which included a reproduction of the Drawing and mentioned it was shown at the Neue Galerie in Vienna. However, the court found this evidence ambiguous, as the article did not attribute ownership of the Drawing to Dr. Rieger and used vague language regarding its exhibition.
Additionally, other evidence showed that multiple individuals besides Dr. Rieger had lent Schiele artworks to the 1928 Memorial Exhibition at the Neue Galerie, contradicting the claim that Dr. Rieger was the sole contributor. The court also reviewed various records and lists of Dr. Rieger’s collection, none of which specifically proved he owned the Drawing. Instead, they referred to Schiele works generically, without identifying characteristics that could confirm ownership of this particular work.
The Rieger heirs failed to provide sufficient evidence to establish that the Drawing had been part of Dr. Rieger’s collection. The court ruled that they had not proven by a preponderance of the evidence that they were entitled to the Drawing.
Could Laches Have Barred the Rieger Heirs’ Claim?
The court’s discussion on laches revolves around whether the Rieger heirs’ claim to the work could be barred due to unreasonable delay and resulting prejudice. While the Holocaust Expropriated Art Recovery (HEAR) Act provides legal support for recovering art lost during the Holocaust, the court reasoned that it does not prevent the use of equitable defenses like laches. Laches requires proving both unreasonable delay and prejudice to the defendant.
In this case, the court noted that the Rieger heirs delayed asserting their claim despite being aware of their ancestor’s lost art collection since shortly after World War II. They took no action until 2016 regarding this particular artwork that had been listed in art catalogues since 1990. The delay was considered unreasonable, especially given the availability of relevant information in a major Schiele expert’s catalog.
The court also found that the delay prejudiced the defendants due to the loss of crucial witnesses, documents, and evidence, making it difficult to fairly assess the ownership claim. As a result, even if the Rieger heirs had a valid claim, it would have been barred by laches due to the combination of unreasonable delay and prejudice.
The Mayländer Heirs’ Claim
The Mayländer heirs also claimed superior title to the Drawing. Evidence presented at trial, including expert testimony, supported the Mayländer heirs’ position that they were entitled to ownership of the Drawing. Historical evidence established that Karl Mayländer owned many Schiele artworks, and five of his drawings were published in the Lányi postcard series between 1917 and 1920.
In 1960, Rudolf Leopold entered into a contract with Etelka Hofmann to purchase several artworks, including a Schiele watercolor drawing described in German as “Edith Schiele, seated” (Edith Schiele, sitzend), signed and dated 1917 (likely the Drawing). The Mayländer heirs’ expert, Professor Tobias Natter, an Austrian art historian with particular expertise in the “Vienna 1900” period, provided credible testimony linking the Drawing to this contract, relying on provenance research and his knowledge of Schiele’s works. Natter eliminated all other potential matches for the artwork described in the contract, strengthening the argument that the Drawing was the correct artwork.
ROLF contested the claim, arguing that the contract referred to a different artwork. In regard to this argument, the court found Elisabeth Leopold’s testimony unreliable. Elisabeth, Rudolf’s wife, lacked firsthand knowledge of the contract and displayed bias against the Mayländer heirs. Additionally, the meticulous dating of Schiele’s works, a key trait of Rudolf Leopold’s collecting habits, made it unlikely that he misdated the drawing in the 1960 contract.
The court also noted that the Drawing had been in Rudolf Leopold’s possession and eventually reached Galerie Galatea in Turin by 1963, before being sold to the Marlborough Gallery. The decision aligned with international restitution principles, including the Washington Conference Principles and the Holocaust Expropriated Art Recovery (HEAR) Act, which aim to return Nazi-confiscated art to rightful heirs. Ultimately, the court ruled in favor of the Mayländer heirs.
Why did the Court Find that The Mayländer Heirs Had Superior Title?
The case centers on the transfer of the Drawing from the art collection of Karl Mayländer, a Jewish Austrian national, who faced escalating Nazi persecution. In 1938, Karl attempted to finance his escape from Austria by selling his art but failed, and he discovered that his collection had little monetary value. He was deported to the Jewish ghetto in Łódź in 1941, where he was murdered. The court found no evidence that Karl voluntarily transferred the artwork to Etelka Hoffman before his deportation.
ROLF attempted to prove that Karl’s transfer of the art was voluntary, but the court determined that the historical context—Nazi persecution and Karl’s precarious situation—made it unlikely that he transferred the collection of his own volition. The evidence indicated that any transfer was made under duress and could not be considered a voluntary gift. As such, the court concluded that the transfer was invalid and that the heirs of Karl Mayländer were the rightful owners of the artwork.
This decision aligns with New York law which protects the rights of original owners of stolen property, including artwork looted during World War II, regardless of subsequent sales to good-faith buyers.
The court found a case from the First Judicial Department instructive. That case, Reif v. Nagy, rejected the validity of a power of attorney signed under duress in a Nazi death camp, declaring that any transfer of property in such a context could not be considered voluntary. Even if a transfer had occurred, it was invalid under the circumstances. Similarly, in the case of Karl Mayländer, there was no proof that he voluntarily transferred his collection to Etelka Hoffman or that she accepted it as a gift. Hoffman later loaned some artworks, attributing them to Mayländer’s collection, and did not indicate any intent to claim ownership.
The court also referenced Bennigson v. Solomon R. Guggenheim Foundation, where the sale of Picasso’s Woman Ironing by a Jewish refugee was challenged but ultimately dismissed. The court ruled that, despite the coercive circumstances of Nazi persecution, the sale lacked duress because the buyer had no connection to the Nazis. Similar cases, like Zuckerman, also failed to establish duress in transactions between private parties under Nazi-era pressures.
In contrast, the court found that the current case aligned more with Reif v. Nagy, which emphasized the return of Nazi-looted art under the Washington Principles and the HEAR Act. These laws aim to restore stolen artworks to heirs due to the unique hardships Holocaust victims faced. Therefore, the court rejected the reasoning of Bennigson and Zuckerman and favored Reif, awarding the disputed artwork to the Mayländer heirs.
The Mayländer heirs filed counterclaims for declaratory judgment, replevin, and conversion, asserting that the transfer of property from Karl Mayländer to Etelka Hoffman was void, meaning Hoffman never had valid title to the drawing. Consequently, the Mayländer heirs maintain rightful ownership, irrespective of whether ROLF, Lehman, or Robert Lehman, Sr. acted as good faith purchasers.
For the conversion and replevin claims, the court noted that the Mayländer heirs demonstrated their possessory rights to the property. Conversion requires proof of the plaintiff’s possessory right and the defendant’s wrongful dominion over the property, while replevin necessitates a superior possessory right. The court concluded that the Mayländer heirs were entitled to a declaratory judgment and to prevail on their conversion and replevin claims.
Contact All Language Alliance, Inc. to hire a certified genealogist and to request legal interpreter services and certified document translation services from any foreign language for art provenance and art restitution cases.
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