Museums' Initiation of Declaratory Judgment Actions and Assertion of Statutes of Limitations in Response to Nazi-Era Art Restitution Claims — A Defense

59 Pages Posted: 18 Feb 2020

See all articles by Simon Frankel

Simon Frankel

Covington & Burling LLP

Ethan Forrest

Stanford Law School; Covington & Burling LLP

Date Written: June 1, 2013


Since the reunification of Germany brought greater access to information about the history and location of artworks that changed hands during the Nazi era, numerous restitution claims have been asserted to works held by U.S. museums. In a few instances, U.S. museums faced with such claims have initiated declaratory judgment actions seeking to quiet title to the works and have also invoked statutes of limitations or laches to bar the claims. Some recent commentary in law reviews and elsewhere has faulted museums for such conduct, contending that museums are obliged to restitute to claimants any works to which a Holocaust-related claim has been asserted, or to litigate claims “on the merits,” without invoking so-called “technical defenses” such as statutes of limitation or laches. This article argues that such a view ignores the complex nature of both the claims asserted and the fiduciary obligations of museums to protect the assets they hold in trust and avoid unnecessary depletion of them. Any thoughtful approach must acknowledge that each claim must be considered on its historical merits. Some such claims are valid and based on sound provenance research, as they involve works of art demonstrably stolen by the Nazis and sought by the families from whom they were taken. Other meritorious claims might involve works with key gaps in provenance, which, while not directly probative, support suspicion about the circumstances under which the original owners parted with the works — such as an early sale by a European dealer known to sell Nazi-confiscated artworks. However, some other claims may not appear meritorious after careful research, such as those that involve families who pursued restitution of some works of art after World War II but did not pursue other works that they knew of and that their families had parted with at some point — suggesting that the families themselves did not believe that those works had been wrongfully taken. In short, not all claims to recover artworks that changed hands in the Nazi era are equal. Beyond this, museums have fiduciary obligations not borne by private individuals who are also good faith purchasers. Museums have both a duty to take all reasonable steps to protect the assets they hold in trust and ethical obligations to the claimants who assert ownership of works long held by museums. While museums must take all Nazi-era art restitution claims seriously, as their codes of ethics demand, a museum may conclude after diligent research that a particular claim is not meritorious, indicating that the museum holds good title to the work. In such circumstances, there is no legal or ethical bar to museums initiating litigation to quiet title to works, and no bar to a museum taking all reasonable steps to prevail in such litigation at minimal expense — to avoid depleting trust assets unnecessarily — including by invoking statutes of limitation or laches where appropriate. Notably, in the very few cases where museums have initiated litigation to defeat claims to works in their collections, each museum has had a strong evidentiary reason for believing both that the claim was not meritorious and that the claim was time-barred. In contrast, there are many more instances where museums, faced with claims by the heirs of Holocaust victims, have voluntarily restituted works to claimants or amicably reached monetary settlements that allow the museums to retain the works at issue.

Keywords: Nazi-era art restitution claims, museums, statutes of limitation, laches

Suggested Citation

Frankel, Simon and Forrest, Ethan, Museums' Initiation of Declaratory Judgment Actions and Assertion of Statutes of Limitations in Response to Nazi-Era Art Restitution Claims — A Defense (June 1, 2013). DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 23, No. 2, 2013, Available at SSRN:

Simon Frankel (Contact Author)

Covington & Burling LLP ( email )

One Front Street
San Francisco, CA 94111
United States

Ethan Forrest

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Covington & Burling LLP ( email )

1201 Pennsylvania Avenue NW
Washington, DC 20004
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics