CLAIMS FOR THE RETURN OF HOLOCAUST ART: SCOPE OF THE US HEAR ACT: Zuckerman v. The Metropolitan Museum of Art, New York.

AuthorDrawdy, Stephanie

Laurel Zuckerman, the great-grand niece of a Jewish couple from Cologne, the Leffmanns, has again received an adverse ruling in a New York federal case in which she sought possession of a painting sold by the Leffmanns after Nazi-rule necessitated their departure from Germany. In its decision (2) of 26th June 2019, the Second Circuit Court of Appeals upheld a lower court decision in favour of the Metropolitan Museum of Art, which received the masterwork at issue, Picasso's The Actor, as a gift in the 1950s. While the Second Circuit noted the US's Holocaust Expropriated Art Recovery Act of 2016 (3) (the 'HEAR Act') provides a civil claim for recovery of art lost due to "Nazi persecution" at the time The Actor was sold, it found Ms Zuckerman's claims were not covered under HEAR; and, even if they were, they failed under the doctrine of laches.


In early 1904, Pablo Picasso sketched out a male figure, moving his back leg to and fro on the paper, and later on the canvas, as if he were dancing in place. By 1905, The Actor had come to life, dressed in a pink leotard and painted over a seascape the Spanish painter relegated to an under-painting. With this piece, Picasso had ended his focus on the wretched and turned to the subject of circus life. Yet, this haunting work was destined for a long and cheerless journey into the world beyond Picasso's studio.

In 1912, Paul Friedrich Leffmann, an industrialist from Cologne, Germany, purchased The Actor. Only 24 years later, in 1936, a year after the passage of the first Nuremberg Laws, Mr and Mrs Leffmann were forced to start selling their "sizeable assets", receiving "nominal compensation". (4). At the same time, the Leffmanns received an unsolicited offer from the "notorious" Nazi Art Dealer C.M. de Hauke for The Actor. The Leffmanns arranged for the Picasso to be moved to a private home in Switzerland for safekeeping in that same year. (5).

In late 1936 into early 1937, the Leffmanns arranged for their departure from Germany to Italy--at a steep financial loss. They were required to pay "flight taxes" estimated at 25 per cent of their reported assets--assets they no longer held because they were forced to sell them at a significant discount. (6) They also found it necessary to enter into a "triangular" property deal whereby they purchased an Italian home and factory with 180,000 Reichsmark (a higher-than-market value) only after agreeing to immediately sell it back for 456,500 Lira, the equivalent of 61,622 Reichsmark--a "considerable loss". (7)

By early 1938, the Fascist Government of Italy under Mussolini had become as threatening for the Leffmanns as Germany. Italy conducted a census of all Jews and then provided that information to the Nazis under the 1936 Rome-Berlin Axis. In May 1938--one month before the sale of The Actor--the identities of at least 500 German Jews were given to the Nazis and those individuals were subsequently arrested as "security measures" just before a one-week visit by Hitler. Also, two deadlines were looming: by 30th June 1938, all valuable assets held by Jews were to be declared; and no valuable asset held by a Jew could be sold after 3rd December 1938. (8)

Thus, in June 1938, in order to raise funds to flee Italy, the Leffmanns sold The Actor for $13,200 to three art dealers, Kate Perls, Hugo Perls and Paul Rosenberg; after fees, the Leffmanns received $12,000 (the '1938 sale'). (9) Shortly after the sale, Kate Perls' son wrote to Chrysler Magnate, Walter Chrysler, offering the painting for sale "misrepresent[ing] to Chrysler that the Painting was purchased by Mrs. Perls from 'an Italian collector'". (10)

In 1939, Rosenberg, a Picasso dealer, loaned the painting to the MoMA, requesting insurance coverage for $18,000 (a $4,800 difference from its sale price the year before). (11) A year later, Rosenberg consigned The Actor to the M. Knoedler & Co. Gallery after which it was sold in 1941 to Chrysler heiress, Thelma Foy, for $22,500-$9,300 more than the sum the Leffmanns had agreed to sell it for just three years earlier. (12)

In 1952, Ms Foy gifted The Actor to the Metropolitan Museum...

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