Law On Reels - Women In Gold : A Story Of Arduous Litigation To Reclaim Art

Woman in Gold, released in 2015, is based on the real story of Maria Altmann, an elderly Jewish lady (played by Dame Helen Mirren), a holocaust survivor from Austria who sought refuge in USA. The movie portrays her effort to be reunited with the lost paintings of her aunt Adele Bloch-Bauer made by the famed artist Gustav Klimt and her emotional turmoil in reliving the brutal past of Holocaust.

Though the movie got mixed reviews and has inaccuracies in its depiction, Maria Altmann's story highlights the inefficacy of litigation in art restitution; and also the importance of not forgetting one's past.

The movie begins with Maria, attending her sister Louise' funeral, who left her belongings to Maria. She discovers a very old letter of year 1948 from their family lawyer in Austria, informing Louise about the Austrian government's decision to hold on to all of Adele's paintings, insisting that she bequeathed them in her will to the Belvedere Gallery in Vienna; a will which she could not find despite her persistent efforts.

Maria knows of the art restitution programme initiated by the Austrian government, and wishes to see if she could reclaim her family's lost paintings made by the celebrated painter Gustav Klimt, one of which was his portrait of her Aunt Adele--Adele Bloch- BauerI, famous as the Woman in Gold. (While the real Maria sought restitution of all the 6 paintings, the movie focuses on just this painting).

In comes a reluctant Randy Schoenberg (Ryan Reynolds), who meets her because his mother, who is friends with Maria, exhorts him to. Randy is, as Maria points, 'completely disinterested in the past' and gains interest in pursuing the matter only when he finds the huge potential value of  "Woman in Gold". Now interested, Randy pursues Maria's claim through the Restitution Committee established by the 1998 Restitution Act of Austria. He even encourages a reluctant Maria to come along to Vienna.

In Vienna, they meet a Good Samaritan, Hubertus Czernin (Daniel Bruhl), an Austrian journalist, who offers to assist them, and tells a suspecting Randy 'you can do with an Austrian friend'. He appraises them of the reality- the Restitution began as a massive PR exercise by the Austrian Government to shed its pro-Nazi image, which they're reluctant to follow up now. Extracting Adele's painting would be a heroic task as the Austrian Government would not simply give away the "Woman in Gold", now a national Heritage, "the Austrian Mona Lisa." It happens- the Austrian Government reject her claim on the ground that Adele had donated to painting to the Belvedere Art Gallery in Vienna.

With the help of Hubertus and his 'mole' in the Belvedere Gallery archive, they find Adele's real will, made 2 years before her death, in which she wished her husband, Ferdinand, to donate all her paintings to the Gallery, after his death. Ferdinand fled the country, (even before Maria) before he could fulfill his dead wife's wish. Later in exile, Ferdinand made a will stating that all his possessions be passed on to his two nieces, Maria and her sister Louise after his death. Hubertus informs her that once they fled, all their precious belongings were stolen by the Nazis, one painting even went on the adorn Hitler's own summer retreat in the Bavarian Alps.

But there's the twist to the plot, the trump card, as the two men tell Maria- the paintings weren't Adele's to begin with, since it was commissioned and paid by Ferdinand making him the real owner. Adele's will was invalid and with Ferdinand having left everything for his nieces, the paintings rightfully belonged to her.

Bolstered by this clinching piece of evidence, Maria and Randy meet with the Chairperson of the Restitution Committee, who refuses to even acknowledge this and the committee simply imposes their decision to keep it with them. Due to the prohibitive litigation costs in Austria (which requires an advance payment of a percentage of the litigated amount, which would require her to be a multi-millionaire) a dejected do not appeal against this decision Maria and Randy return to USA.

Months later, Randy has an epiphany when he sees a book published by the Belvedere Gallery with a cover of Woman in gold and decides to initiate legal proceedings against Austrian Government in the United States itself. The question for jurisdictional immunity is decided by the trial court in their favour. However, the Austrians along with the US government drag the question all the way to the US Supreme Court. The Supreme Court, in the celebrated decision Republic of Austria v Altmann ,overruled the jurisdictional immunity of the Austrian State on the basis of the expropriation exception of the Foreign Sovereign Immunities Act (FSIA).

The Court's ruling established that Altmann had earned the right to sue for custody of the paintings and the case should be adjudicated on merits.

However, confronted with the prospect of a long and expensive litigation, the final decision of which Maria might not even survive to see, Randy suggests arbitration, which the Republic of Austria accepts in order to avoid another defeat in court.

The parties agreed to establish a panel of three arbitrators and to accept the decision of the panel as final and without any right of appeal. As per the arbitration agreement, the panel had to decide on the ownership of the Klimt paintings and determine whether the 1998 Restitution Act was applicable. Finally, the three arbitrators reached a decision favouring Maria Altmann. She decides to auction her paintings and sells the Woman in Gold to Neue Galerie in New York and gives away the sale proceeds to relatives and charity. Randy Schoenberg goes on to establish his own law firm, specializing on art restitution.

 The arduous route of litigation

Maria Altmann's story reveals the shortcomings and complications of litigation and proving Alternative Dispute Resolution (ADR) means to be a better solution.

Issue of Jurisdiction:

As can be seen in Maria Altmann's case, national laws relating to restitution may not be sufficient like in Austria, especially when involving State as party. Also, most nations would not bring other nations to the court; neither would nations submit to the jurisdiction of the Foreign Courts. Even though the US Court approved Maria's suit against Austrian Government, the answer to the question of jurisdiction itself waited years till it reached the US Supreme Court, forcing her lawyer to choose arbitration.

This situation applies especially to situations when both the parties involved are States. For example, India's request for the restitution of the Kohinoor diamond has always been put-off by the UK. The only way of restitution is for the states to enter into a treaty or MoU to peacefully return the art works. However, this approach would not work when the dispute between them is over ownership as this would require a look in to the merits of each party's claim. In this scenario, there is no chance for litigation in either India or UK due to lack of jurisdiction of the respective courts.

Inadequacy of International Law

The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property obliges states to ensure earliest possible restitution of illicitly exported cultural properties and to admit actions for recovery of lost or stolen cultural property brought by or on behalf of rightful owners. However, it envisages negotiations being made through diplomatic offices & relies on states acting on behalf of claimants. The Convention fails to address cultural properties looted from, or possessed by, private individuals. As seen in Maria Altmann's case, where the US Govt. challenged the jurisdiction of Maria's claim along with the Govt. of Austria, States may be reluctant to act on behalf of private individuals, especially if it affects their foreign relations.

Legalities aside, the Maria Altmann story holds a mirror for us to reflect upon our role in the society today and learn.

The movie is interspersed with vivid memories of Maria's past in Vienna. Maria's thoughts keep flitting between her childhood with her beloved Aunt Adele who dies quite young, her lavish wedding ceremony and the haunting memories of days under Nazi occupation, their increasing alienation in their own city, their belongings looted, leaving behind her parents, being chased by the police as she flees with her husband for a new life in USA.

There's a disinterested Randy who goes back the roots of his Jewish family. Confronting the past affects him profoundly which encourages to go on, not for the money but for the sake of justice his ancestors deserved.

And then there is Hubertus, who holds a mirror and shine the light on us to observe. In the movie, his character seeks redemption from the evils his Nazi father committed against the Jews, and sought to help Maria as penance. When he exposes their president Waldheim's Nazi past, he gets spit upon and called a traitor. Unfazed by the jingoistic attack, he responds to the aggressor-"I am a true Austrian". When a suspecting Randy asks his motive, he says, 'Lets' say it's a very particular brand of patriotism."- A contrast to the chest-thumping patriotism and nationalistic fervour that is all too common in the world today. A brand, which today more than ever needs to be promoted.

The increasing acceptance of division among people, the constant ridicule and other-ing of certain people, the normalization of violence against them, the Hubertus' among us being snubbed as 'anti-nationals', 'urban naxals' and citizens as a whole ceasing to question authority - these are instances which are manifesting in our country as well. In stealing Adele's paintings, the Austrians didn't just steal her identity and erase her ownership, but also the Jewish past of Austria's Mona Lisa and eradicated them from their history. It was an attempt to sanitize an ignoble past, which was prevented by Altmann's relentless pursuit.

In a time where renaming places and distorting history are increasingly becoming the norm, it seems that history is indeed repeating itself. But are we willing to learn from the past?

As Maria points out, it's time we stop being disinterested in the past and instead learn from its mistakes, and remind ourselves to be a Hubertus, or become a Randy to save the many Maria's in our society.  

(The author is a Jaipur-based lawyer)

(This is fifth in the "Law On Reels" series, which explores legal themes in movies)