On 21 September, New York’s highest court quashed a subpoena which had sought to compel the Museum of Modern Art (MoMA) to turn over two paintings by Schiele for criminal investigation while temporarily on loan from the Leopold Foundation in Austria. A few hours later, however, at the request of US Customs, a federal magistrate barred the return of one of the pictures, “Wally”; the warrant did not cover “Dead City II”, which could therefore be returned to Austria.
The paintings are claimed by heirs to have been stolen from their rightful owners during the Nazi annexation of Austria. In January 1988, a grand jury convened by the New York District Attorney subpoenaed the museum to produce the paintings in a criminal investigation. But moving to quash the subpoena in court, MoMA cited a New York statute which bars “any kind of seizure” of art loaned into the State for exhibit.
The lawsuit wended its way through two lower courts, with MoMA and the New York District Attorney advocating opposing interpretations of the statute’s language and history. In the end, the Court of Appeals agreed with MoMA that the New York statute “applies under the circumstances of this case.” The ban against “any kind of seizure” of borrowed art is “unconditional” and “unrestricted,” the court said. The history of the law, it added, “reveals a consistent, unyielding legislative intent to promote artistic and cultural exchanges by creating a climate in New York free from the threat of seizure by the judicial process and by encouraging non-residents to share their works of art with the public.”
In a statement, MoMA said that “there is nothing in this decision that would limit the District Attorney’s ability to bring criminal charges when appropriate.” The ruling confirmed, it said, that “a museum can’t be prevented from fulfilling its responsibility to return borrowed art.”
District Attorney Robert Morgenthau called the decision “just plain wrong” and “inexplicable” and called on the New York Legislature to change the law to make clear that it applies to criminal investigations. “How can museums claim that they are the sources of civilised values,” he asked, “when they ignore questions of the legitimacy of the works held in their collections or exhibited in their displays?”
A front-page article in The Art Newspaper No.96, October 1999 incorrectly stated the date of a subpoena issued by a New York grand jury to the Museum of Modern Art. The date was January 1998, not 1988. The article incorrectly quoted the New York District Attorney, Robert Morgenthau, as asking the New York legislature to change the Exemption from Seizure Law to make clear that it applies to criminal investigations. Mr. Morgenthau asked the legislature to make clear that the statute “does not” apply to criminal investigations.
Originally appeared in The Art Newspaper as ‘Civilising or paralysing?'