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In the past Lempertz has often successfully negotiated restitution claims and in all those cases we were able to find a solution that left both claimants and our customers satisfied

Fine kettle of fish: "Still-life, Shellfish, Perch, Pike, Oyster and Cat" by Alexander Adriaenssen

Sale was not of “Nazi loot”

Referring to your article “Auction house sells ‘Nazi looted’ work” (The Art Newspaper, March 2011, p57) we would like to point out that already the headline is incorrect, as we did not sell a “Nazi-looted” work. The work was withdrawn prior to the auction in autumn 2009 in order to give the Stern Estate the time to prove the identity of the 1937 [work] and the actual painting. In spite of several attempts from our side to obtain information and evidence from the Stern Estate that was beyond mere speculation, we heard nothing until a few days before the autumn auction of 2010. Although no convincing evidence was delivered until long after the sale, we decided to sell the painting conditionally, thus giving the claimants again six weeks to deliver convincing evidence.

Your article is incorrect when it says that we “allowed the sale to proceed” after the Max Stern Art Restitution Project (MSARP) had asked us to remove the painting from the sale. In fact we removed it in 2009, decided to offer it again after we had not heard from the MSARP in almost a year, and then offered it only conditionally after claims were repeated by a new claimant.

The roll of the Art Loss Register was also a different one in this case. Since their researchers are not convinced of the identity of the two paintings, our painting is not listed in their files.

Our consignor was reluctant to negotiate a restitution claim from the beginning, stating that the painting had been in family possession since the 1920s and was given to him by his grandfather. After the painting had to be removed from sale a second time he strictly refused to discuss a claim and demanded the immediate return of the painting. As auctioneers we do not own the goods that we are selling and have no legal measures to refuse the owner’s claim to give a piece back—a simple fact that the MSARP tends to ignore.

In the past Lempertz has often successfully negotiated restitution claims and in all those cases we were able to find a solution that left both claimants and our customers satisfied. With regards to the MSARP the starting position is different, because of the fact that the MSARP insists on a return of the paintings without compensation for the current owner. This unconditional demand is certainly not in accordance with the Washington principles that appeal for a “fair and just” solution between both the claimant’s and the present owner’s positions. Under those harsh conditions many consignors will react as the owner of the Adriaenssen painting did, and will refuse to negotiate a return.

It can even be discussed, whether or not MSARP-claims are generally legitimate. I want to stress that Max Stern was on good business relations with Lempertz again after the war. And while he certainly fought for the restitution of a number of paintings, he never claimed back a painting from auction 392.

—Karl-Sax Feddersen, legal advisor, Kunsthaus Lempertz

Export licences and rules

The frustration of Stephen Deuchar over cases such as that of the Portrait of Ayuba Suleiman Diallo (March 2011, p29), is understandable. However the problem is hardly new, nor is the solution proposed by Mr Deuchar. It was put forward in 2003 by the majority of the Steering Group asked to carry out the Quinquennial Review of the Reviewing Committee on the Export of Works of Art, though it was rejected by Ministers in 2004 and again in 2007.

The central question is whether the imposition of a binding agreement in the form proposed is proportionate. Since 2004 the problems then identified, have, if anything, become more acute. If a binding agreement became a mandatory requirement, and was challenged successfully, this could open Pandora’s box in terms of wider intervention from Brussels in regard to this country’s rules governing the export of national treasures.

A proportionate response could be to offer applicants for a licence the choice of the current procedures or the alternative of submitting to a binding agreement. Such agreement would offer a quid pro quo in the shape of the Secretary of State’s commitment that in the event of the institutional purchaser being unable to raise the purchase price within a set timeframe, a licence would issue as of right.

—Edward Manisty, Farrer & Co LLP

Stephen Deuchar makes a case for the tightening of the rules in the export licence process so that applicants would be compelled to sell to a museum or national institution if a matching offer were to be made within the period of the export stop. This suggestion, however, rather raises the question as to the purpose of the export licence system: is it to keep the work of art in the UK or to see that it ends up in a public collection?

If it is the first (and that was undoubtedly the original intention of the Waverley report), Mr Deuchar could take the view that even when an offer has been refused, a work of art has been retained within the UK for a minimum period of ten years, and that the funding bodies still have their money to help with other future acquisitions. Of course it is frustrating that museums should spend time raising funds for a purchase that ultimately does not succeed, but such frustrations are quite common in the commercial world.

On the other hand, if public ownership is the objective, why do we have the highly controversial Ridley rules whose purpose is to encourage private ownership of export-delayed works of art? If foreign public ownership is sometimes to be preferred to UK private ownership, as Mr Deuchar seems to suggest in the case of the Turner Modern Rome—Campo Vaccino (see the spring 2011 Art Quarterly of the Art Fund), who is going to make the delicate value judgements required in matching one against the other and on what grounds? Should there not be some clarification of these issues before any changes are made to the system?

—Julian Agnew, Chairman, Agnew’s, London

Original thinking

David Ekserdjian’s essay in the March issue (p29, see related story) pointing out the venerable history of artistic borrowing (or appropriation, as we call it today) is a useful reminder that art has to exist in relation to work from earlier eras, which is one reason the Timken Museum of Art has mounted a small exhibition of four of the theatrical director Robert Wilson’s video portraits.

Three of the works directly borrow poses from old master paintings. But these poses are borrowed not for the same reason that Joshua Reynolds might have done so. To use one example from the exhibition, if a character in Rembrandt’s Anatomy Lesson of Dr Tulp was to be used as a model for a portrait in an earlier century, it would have been the intelligent Dr Tulp. Today Robert Downey Jr (quite clearly alive and well), is portrayed as the corpse.

This exhibition was mounted precisely to address an issue such as this and to inform our audience about old master painting, not merely to show more contemporary art.

With today’s concern for artistic borrowing, should we expect a 21st-century appropriation of Nathaniel Hone’s The Conjurer

—John Wilson, Director, Timken Museum of Art, San Diego, California

Budapest and state intervention

On the front page of your March issue Richard Unwin laments the cancellation of “ambitious plans to redevelop” the Budapest Museum of Fine Arts. It’s true that the government made its decision at the last moment, but the point is that it respected the opinion of the more than 8,000 museum-related professionals who were signatories to a web petition opposing the unnecessary underground development of Budapest’s Heroes’ Square.

One of the main arguments against the extension was the urgent necessity to restore war damage from 1944 and the roof of the museum building. This surely should take precedence over Dr Baan’s trendy and unrealistic goal.

Incidentally, Richard Unwin seems surprised that “the government is thought to be influencing the appointment of a new director” for the Mucsarnok exhibition centre (February, p19). In Hungary, governments not only “influence”, but actually appoint civil servants to top museum posts. Laszlo Baan, director of the Museum of Fine Arts was a politician with no relevant degree or museum experience prior to his appointment in 2004. Need I say more?

As a long time reader of The Art Newspaper I am disappointed that your report was so biased and superficial. [Ed: an update on this story appears in our April print edition, p20]

—Dr István Barkóczi, former Deputy Director General of the Mucsarnok exhibition centre, Budapest

Send your letters to the editor to: 70 South Lambeth Road London SW8 1RL UK or email: j.morris [at] theartnewspaper.com

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