The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Thursday, 15 June 2017

ParisTribunal supports heir's claim to looted painting

This SherlocKat isnt fooled by
this ownership business
An heir claims ownership over his ancestor's painting seventy-years and six months after the death of his ancestor... and the Paris Tribunal seems likely to grant his request. How is it possible? Elementary, my dear Watson. 

The legal ownership of artworks spans across a number of legal fields, going beyond intellectual property rights in some cases. As a result, more than one kind of ownership is vested in works of art. Ownership may be conferred by copyright in the graphic representation embodied by the painting, and by (traditional) property law over the painting itself. Unlike copyright-ownership, property-ownership knows no time-limit. As confirmed by a recent decision of the Paris Tribunal, property-ownership may be passed down from one generation to the next without losing its legal force. Old titles may thus come back to haunt collectors, galleries and museums who exhibit works that are otherwise cleared by copyright.


"La Cueillette des Pois" by Pissarro (1886) 
On 30 May 2017, the Paris Tribunal (Tribunal de Grande Instance) granted an interim injunction sought by the heir of a private collector whose artwork collection had been plundered during the German occupation in 1943.  The dispute illustrates that owning or exhibiting works of art can be fraught with both legal and historical complexities. 

The interim order concerns the work of the famous French artiste Camille Pissarro known as "La Cueillette" (also going by the name of  "La cueillette des pois", "Pea Harvest"). "Pea Harvest" was one of the ninety-three paintings Simon Bauer, the private collector, owned and ultimately lost during the war. The plundering of Bauer's collection was executed on 1 October 1945 in accordance with the legal status of Jewish French citizens at the time. Bauer began legal actions to recover his collection, shortly after his escape from the Drancy camp in 1944. On 8 November 1945, the Paris Tribunal declared null and void the sales of the paintings Bauer had managed to locate since his return, and secured their restitution. This decision was confirmed in appeal on 4 May 1951. Yet not all paintings were recovered. When Bauer passing away on 1 January 1947, the search for the remaining items of his collection was carried on by his grandchildren, who have continued to do so to this day. 
Camille Pissarro

The present dispute began with the reappearance of "Pea Harvest" in the Pissarro exhibition put on by the Marmottan museum in Paris. The painting's current owners, Mr and Mrs Toll, US citizens, had lent the piece to the Museum for the duration of their exhibition. Anxious not to see the painting leave France at the end of the show, Bauer's heirs filed for an interim injunction granted by expedited proceedings in order to have Pissarro's piece kept in sequestration with the Academy of Fine Arts until 2 July 2017, and with the Orsay and Orangerie museums thereafter. Ultimately, the claimants hope that the interim injunction will facilitate the recovery of the painting once full court proceedings settle the issue. 

Mr and Mrs Toll challenged the interim sequestration of the piece on three grounds: (1) the Paris Tribunal's lack of jurisdiction in the matter; (2) the presence of procedural irregularities in the claimant's injunction request; and (3) the inappropriate use by the claimant of expedited proceedings in this case (a procedure known as "jugement en référé" in France).

(1) On the Paris Tribunal's jurisdiction. The defendants argued that the involvement of the Academy of the Fine Arts (based in Paris) is a ruse on the claimants' parts for their case to be heard in Paris, and not in the United States, where the Tolls live permanently. As such, the Tribunal should declare themselves lacking jurisdiction to rule on this matter. The Bench dismissed the argument by pointing to the fact that the involvement of the Academy of Fine Arts was legitimate given that the institution manages the Marmottan Foundation (including its museum), who currently hold the painting. The Tribunal President thus concluded that since the interim injunction seeks to have the painting retained by the Marmottan museum (i.e. the Academy of Fine Arts) which is itself located in France, French courts enjoyed jurisdiction in this matter (p. 5-6).

(2) On the procedural irregularities of the claim. The defendants first challenged the injunction claim by stressing that the Marmottan Foundation lacked legal personhood and, as such, could not be party to the dispute or receive the painting in sequestration. The Tribunal responded by reminding the parties that such grounds could have only been raised by the Marmottan Foundation, who did not, and that the Academy of Fine Arts (who enjoy legal personhood) had joined the proceedings in support of the Foundation precisely for this reason (p. 6)


Jean-Jacques Bauer (Simon Bauer's heir)
at the Marmottan museum.
(Photograph by France 3 TV)
The defendants also asked for the dismissal of injunction request on the basis that the required notification for expedited interim injunction made against parties residing abroad had not been fulfilled by the plaintiffs. The Court rejected the argument by stating that the defendants were granted further time to prepare, seek advice from counsel and present their arguments, which they did in full at the hearing on 5 May 2017. Earlier irregularities had thus been rectified (p. 6).


A Pea-cat
(Flickr: jaci XIII)
(3) On the suitability of expedited proceedings. Finally, the defendants put forward that expedited proceedings in this case would be prohibited by the French civil procedural rules because they have a serious and legitimate claim to retain the painting (see Art 808 of the Code of Civil Procedure - available here in English). For this reason, any injunction or decision should be heard in the context of full, and not expedited, proceedings. The Tolls argue that they are the bona fide owners of Pissarro's painting, having acquired the piece at a public auction held by Christies in 1995. According to them, their position as owners in good faith should bar the restitution requested by Bauer's estate. Yet, the Court dismissed this argument by referring to the 1945 ordinance issued by the Paris Court of Appeal in which the judges had declared that "any subsequent owners [of Bauer's paintings] will be regarded as possessors in bad faith [...]. They may not, under any circumstances, invoke a right to retain a lien". The Paris Tribunal thus concluded that the defendants' bona fide defense could not hold, and did not form a legitimate or serious claim susceptible to prevent expedited proceedings (p. 7). 

The conclusion of the Tribunal President on this last point seems to indicate that Bauer's estate stand strong in their battle to secure the ownership of Pissarro's work. Jean-Jacques Bauer, Simon Bauer's heir, reported by the French newspaper FranceInfo, was pleased to see judges taking actions helping him restore his ancestor's collection as similar proceedings had failed in the past (see here). The full trial on the painting's ownership is yet to be heard. More than seventy-year after the confiscation of Bauer's paintings, the search and the legal battles to complete the collection continue. The decision also reminds us, and the practitioners of the GLAM sector (Galleries, Libraries, Archives and Museums) that the ever-so-worrisome intellectual property rights represent only one of two legal ownership rights. 


By Mathilde Pavis 

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