Claim By Museums Of Public Trusteeship And Their Response To Restitution Claims

A version of this article was previously published by the "Art Antiquity and Law Journal" (October 2011).

When faced with demands for deaccessioning in the context of Holocaust-era art, many museums have made the claim that legal or ethical responsibilities to the public make it difficult to restitute art. Museums base this claim on the premise that the art in their collections is held "in trust" for the public. Against the backdrop of this "public trust," museums often present technical defenses, such as the statute of limitations and laches, as a means of preventing Holocaust looted art cases from ever reaching the merits. Indeed, some museums have gone so far as to explain that, where a museum determines that a claim lacks merit, it is the museum's "fiduciary responsibility" to raise such technical defenses. see Graham Beal, Director, President, and CEO of Detroit Institute of Arts, Four Cases from One Museum, Four Different Results, Expert Discussion at the Holocaust Era Assets Conference (June 26-30, 2009).

For example, the Four Cases discussion refers to a case involving a claim by the heirs of Martha Nathan, a German Jew who had been forced to flee Nazi Germany, in which the Detroit Institute of Arts (DIA) initiated a declaratory judgment to defend its rights to the disputed picture based on statute of limitations grounds. While this, in and of itself, is not notable, the explanation provided by Graham Beal as to why the museum raised this defense is significant. According to Beal, the museum had concluded that the sale of the painting had been legitimate, and not under Nazi duress. Nonetheless, the heirs "declined to withdraw their claims." As a result of "these circumstances," the DIA determined that it had a "fiduciary responsibility to protect the DIA's ownership [of the painting], using all legal means available, including the statute of limitations and laches." As similarly expressed in the DIA's complaint, it was "incumbent upon the DIA to reject [the heirs'] claim and defend the City's rightful ownership of the Painting...." Most notably, the DIA explained that the museum had this obligation because of the museum's responsibility to act for the public, "for whom it holds the Painting in public trust."1

Two years after the conclusion of the DIA lawsuit, in which the court dismissed the heirs' claim as barred by the statute of limitations, an identical argument was made by the Museum of Fine Arts, Boston (MFA) in a similar action in its declaratory judgment complaint. The subject of the dispute centered around the ownership rights to an Oskar Kokoschka painting, which was alleged to have been the subject of a forced sale by the Nazis. As with the DIA, the MFA determined that based on the it's understanding of the facts, "the Museum Guidelines [did] not support any cognizable claim of Defendant as a matter of law and public policy." The MFA thereby concluded that it was required to "reject Defendant's claim and defend the Museum's rightful ownership of the Painting in order to uphold the integrity of the Museum Guidelines and to meet its fiduciary and legal obligations to the public for whom it holds the Painting in public trust."2

As did the DIA, the MFA appeared to be relying on the premise that a painting could belong to the public trust, even though a court of law had not determined that the museum actually had obtained good title to it. The difficulty that this creates is that museums may end up harboring artworks that have been looted by the Nazis or otherwise stolen. And to display and "profit" from stolen property is to act contrary to the public trust.

But what exactly is the public trust? The regulations of the New York Board of Regents, the authority in charge of supervising New York museums, give the concept a limited definition. The regulations state that the "public trust" refers to the responsibility of museums to "carry out activities and hold their assets in trust for the public benefit." 8 NYCRR § 3.27(a)(18) (2013) (emphasis added). Likewise, the American Alliance of Museums (AAM) has explained that the essence of the public trust is that the museum should act as "a good steward" of the resources it holds "in the public trust." As defined by the AAM's National Standards & Best Practices for U.S. Museums 19-20 (2008), a steward is one who "takes care of something on behalf of someone else," and in this case, "that 'someone else' is the public." Even so, the AAM has stated that "it is hard to say exactly what a museum should do" to meet the standards that relate to "public trust and accountability." Glenn D. Lowry, the Director of the Museum of Modern Art in New York, further explains that the "public trust is first and foremost an issue of responsibility," but that there is "very little that defines what constitutes acting within the public trust." Rather, the "public trust for the public benefit" is a nebulous concept, and is not to be confused with the duty of a trustee bound by a trust instrument. As Lowry points out, "[i]n many ways it is up to individual art museums to establish a relationship with the public... and then to act in a way that is consistent with their understanding of the museum. In this sense, the concept of public trust must be seen as negotiable...." Glenn D. Lowry, A Deontological Approach to Art Museums and the Public Trust, in Whose Muse? Art Museums and the Public Trust 129, 135 (James Cuno ed., 2004).

While the exact scope and meaning of the "public trust for the public benefit" are hard to pin down, the museums' general obligation to act in the public's interest is not. A museums' responsibility toward the public derives from their status as charitable institutions, which...