Sympathy and 'fair compensation'

In a letter to members, the Seattle Art Museum aims to cool outrage over its 'hot' Matisse.

IF ITS RECENT ACTIONS are any indication, the Seattle Art Museum is taking considerable heat from the public over its handling of a Nazi-looted Matisse.

As has been widely reported, SAM was sued in August by the heirs of a Jewish art dealer named Paul Rosenberg. The heirs claim that SAM's prize Matisse, known as Odalisque, was stolen from their family during the Nazi occupation of France. SAM has refused to return the painting and has filed a third-party suit against Knoedler and Company of New York, the gallery that sold the painting back in 1954 to Northwest timber baron Prentice Bloedel and his wife, who in turn bequeathed it to SAM on the occasion of their deaths several years ago. As noted in a Seattle Weekly cover story last month ("SAM's 'Nazi' Matisse," 9/3), SAM is now holding the Rosenbergs' claim hostage to its own effort to extract compensation from Knoedler for the possible loss of the painting.

Last week, SAM sent out a letter to its 24,000 members, in an effort to "clarify" the museum's position. The letter was signed by SAM director Mimi Gardner Gates and by Herman Sarkowsky, chairman of the museum's board of trustees. Sarkowsky is a prominent developer and an important Jewish philanthropist.

SAM's communique was designed "to make sure that our members were clear on what we were doing and why," says Linda Williams, the museum's public relations manager. "It's obviously quite an expense, but we felt it was important." Asked if SAM had received a lot of letters from the public about this matter, Williams replied, "Not a lot. We've received a fair amount, but I wouldn't say it's overwhelming." (Seattle Weekly has received many letters, some calling for a boycott of SAM.)

In its letter, the museum said it is "committed to do the right thing" and is "extremely sympathetic" to the Rosenbergs' claim. But the museum repeated its past insistence that "fair compensation, responsibility, and restitution" should be determined "for all the parties involved."

In the long chain of blame over the laundering of stolen Jewish assets in the years after World War II, there can be little doubt that Knoedler represents a more culpable link than SAM. Nazi war crimes were quite recent history in 1954, and the gallery should have been very familiar with Paul Rosenberg and the fate of his collection. Indeed, Knoedler's president, speaking in an Internet interview posted a few years ago, indicated that Knoedler executives were in close correspondence with Rosenberg before he fled to this country in 1940.

Still, from a legal standpoint, SAM's attempt to get Knoedler involved may be quixotic, and certainly does the Rosenbergs no good. The gallery contends that SAM simply has no grounds to sue, since the museum never bought anything from Knoedler. "This is an unprecedented claim that the museum is trying to gin up," says Lewis Clayton, Knoedler's attorney. Knoedler has deep pockets and a renowned law firm at its service, and likely can stave off the

museum indefinitely—while the Rosenbergs continue waiting and paying.

Yet one statement in the letter seems to offer an important step toward a middle ground. SAM says that if the results of its research confirm the Rosenbergs' claim, it will return the painting, but only "if Knoedler agrees." Knoedler's agreement is important to SAM because the gallery would not be able to later claim that SAM didn't have to give the painting back, that the Rosenbergs hadn't really proved their case, and that the museum therefore has no business coming to the gallery for compensation.

BUT BY AGREEING, Knoedler would be admitting that it, too, did not have clean title to the painting when it made the sale to the Bloedels 40 years ago. That would leave the gallery more vulnerable to SAM's suit for breaching implied warranties of title. Thus Knoedler is unlikely to take SAM's bait. "The museum has to determine whether they own the painting or the Rosenbergs own it," says Knoedler's attorney Lewis Clayton. "We're not a part of that dispute."

On the other hand, the gallery's position could soften once the discovery process begins and SAM gets access to Knoedler's archives, which might contain compromising information suggesting that Knoedler had, or should have had, some awareness of the painting's tainted past. (Indeed, SAM's suit makes just such an allegation, based on some rather sketchy records from the Bloedels.) If so, says New York attorney John Horan, who has worked on a number of stolen-art cases, "Knoedler is going to settle up very quickly."

SAM's letter is clearly intended to shift responsibility for stiff-arming the Rosenbergs to Knoedler. However, the letter is disturbing in another respect, for it suggests that the museum is prepared to resist the Rosenbergs in court even if it is convinced of the truth of their claim. Washington, DC, attorney Thomas Kline, who has represented other families in stolen-art cases, contends that mounting a groundless defense is the same as bringing a groundless lawsuit. "I don't know why their defense isn't frivolous right now," he says.

Of course, the museum has not yet conceded that the Rosenbergs have a convincing case. In its letter, the museum reiterates the assertion it has made for months: that it is continuing to "diligently investigate" the claim. "As an institution that holds its collection in the public trust, SAM cannot return the painting without fully researching the claim's validity." The museum says it hired the Holocaust Art Restitution Project (HARP) in Washington, DC, last February. The head of HARP, Ori Soltes, estimates that his research team has devoted roughly 30 hours to the project. He is now awaiting further marching orders.

The trail of the painting is, in fact, uncharted between 1942, when it was seized by the Nazis from Rosenberg's bank vault in France, and 1954, when it was sold to the Bloedels. Attorney John Horan says that to combat the Rosenbergs' claim, the museum must find evidence showing that Paul Rosenberg at some point either regained control of the painting or parted with it willingly.

Asked how the research could ever be "done," SAM's Linda Williams says, "There's a lot of avenues that we're still looking down. But it's not endless. Obviously at some point you have to say, 'We've looked all the places that we can.' But we're hoping obviously to turn up that haystack needle that is the proof of x or y." One thing is certain: In its drive to protect "the public trust," the museum is devoting vastly more time and resources to investigating the painting's past than it ever did before accepting the Bloedels' gift.

So far, SAM has shown no inclination to try more "legalistic" defenses against the Rosenbergs, such as a "statute of limitations" claim, which asserts that too much time has elapsed since the theft, or a "laches" claim, which says that the victims were insufficiently diligent over the years in trying to locate their property. "When these cases go to court, statute of limitations is usually the first defense tried," says Constance Lowenthal, director of the Commission for Art Recovery of the World Jewish Congress. "SAM hasn't mentioned it, and I think that's an indication of their good faith."

While SAM's letter emphasizes how "complicated" and "complex" the Matisse matter is, the dispute is ultimately only as complicated and complex as the museum chooses to make it. The Rosenbergs' claim is relatively straightforward and, after months of delay, the museum has put forward no evidence to contradict it.

The timing of SAM's mailing added a note of irony to the dispute. The letter arrived in many members' mailboxes on Yom Kippur, the Day of Atonement, which teaches that good will and the commitment to do right mean nothing without action.

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