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Los Angeles Daily Journal
MARCH 12, 2003 |

Battle Rages for Right To Painting by Picasso
For Works Looted by Nazis, Ownership Frequently Is in the Eye of the Beholder

By Christina Landers
Daily Journal Staff Writer LOS ANGELES - Thomas C. Bennigson had just returned from a day of classes at Boalt Hall last summer when he got the telephone call.
A $10 million Picasso that once hung on the wall of his grandmother's Berlin home had been found, 60 years after the Nazis confiscated it from a Paris art dealer, according to the caller, an international art recovery expert.
The 44-year-old philosophy-professor-turned-law-student had never heard his grandmother, Carlota Landsberg, mention the 1922 Picasso, titled "Woman in White," which art recovery experts said she had entrusted to the dealer just before her escape from Berlin on the eve of World War II.
The Holocaust "was a touchy subject in our family," said Bennigson, whose father, Rudolph, was a concentration camp survivor.
"When someone first called me about this painting," Bennigson said, "I wasn't sure whether they were legitimate, because I didn't know my grandmother had ever owned such a thing."
Six months after that phone call, Bennigson is locked in a closely watched legal battle that has highlighted conflicting standards and responsibilities for those dealing in artwork lost or unaccounted for during World War II, according to art litigation experts. Bennigson v. Alsdorf, BC2872941 (L.A. Super. Ct., filed Dec. 19, 2002).
"The old attitude used to be that, if someone said to an art dealer, 'Do you want to buy this painting? I found it in my attic,' the dealer felt lucky to have found such a wonderful piece," said Charles Goldstein, counsel for the Commission for Art Recovery in New York City. "There were no questions asked."
With a recent boom in lawsuits, however, that attitude is changing, Goldstein said.
"Today, galleries that sell art they know has a questionable provenance are doing it at their peril," he said. "It's still done, but there is a suspicion that art dealers know when they have hot material."
The Picasso surfaced in the spring of 2002 in Paris, where it had been offered for sale by Chicago collector Marilyn Alsdorf, 77, and her Los Angeles dealer, David Tunkl, Bennigson said.
Alsdorf, a prominent art patron, bought the painting in 1975 for $357,000 from Stephen Hahn, a reputable New York dealer, and her lawyer says she had no reason to suspect it had been stolen.
"Neither she nor Stephen Hahn had knowledge of anything that has been alleged in the complaint," said Alsdorf's attorney, David M. Rownd, associate with Chicago's Fagel & Haber. "She didn't wish this situation on herself, so she's not trying to get something out of it."
However, Bennigson's lawyer, E. Randol Schoenberg, partner with Los Angeles' Burris & Schoenberg, said that Alsdorf "could have known" about the painting's provenance, because it was listed on a French register dating from 1947 called the "Repertoire," which named all major artworks that were stolen in France during World War II.
"I have no reason to believe Mrs. Alsdorf knew the painting was stolen before last year," Schoenberg said. "That may not be true, but it's just not even an issue. The rule in the U.S. for artworks in this sort of case is that the heir and first victim gets the painting."
A hearing is scheduled for Thursday before Los Angeles Superior Court Judge Victor Person to consider Alsdorf's challenge to California's jurisdiction over the painting.
But Rownd insisted that the case does not even belong in a California court.
"This lawsuit is alleging things that happened in Germany 60 years ago, not alleging anything Mrs. Alsdorf did with the state of California. Both she and the painting have been in Illinois for years, and that is where the case should be tried."
Bennigson, who taught philosophy at northeastern colleges before entering law school in California, was a frequent visitor to his grandmother's New York City apartment, he said, and is her sole living heir.
He knew her as a patron of classical music, Bennigson said, but not of art.
He wasn't surprised, however, that she and her husband, Robert Landsberg, a wealthy businessman in prewar Berlin, would own something of value.
Widowed in 1932, Carlota Landsberg, who was Jewish, began making plans to escape Berlin when the Nazis took over the following year. In 1938 or 1939, she sent the Picasso for safekeeping to Parisian dealer Justin K. Thannhauser, whose family gallery was the first to represent Picasso. When the Nazis invaded France in 1940, they seized the painting from Thannhauser, according to Schoenberg's complaint.
After making her way to the United States in the aftermath of the war, Landsberg worked with Thannhauser for years to encourage the German government to help recover the painting.
"As I remember very clearly, and as I therefore can confirm to you in writing, in 1938 or 1939 you sent your painting by Picasso, of a woman, from the so-called classical period of the artist, to me in my house in Paris," Thannhauser wrote to Landsberg in 1958, according to court documents. "At this time, as we were forced to leave our home in Paris in 1939, your Picasso hung in the middle of a small wall. Upon the occupation of Paris in 1940, when we were no longer in Paris and the house was closed, the entire contents of the four-story building - and with it your painting - were stolen."
Files in the Berlin restitution office indicated that Landsberg was paid 100,000 deutsche marks, or $27,300, by the German government in 1969 to compensate for the painting's theft.
Landsberg, however, also obtained a written agreement from the German government that the money would be repaid if the painting were located, Schoenberg said.
Rownd contends that Landsberg relinquished her claim when she took the money.
"In most situations, if somebody has received compensation for a loss, that compensation is their remedy," Rownd said.
But Schoenfeld disagreed.
"Along with the money came a written agreement that says whoever finds the painting has to tell the owner and give it back, and then she will return the money," he said. "So my client [would] potentially have to pay the German government back that money, which he is ready to do."
Hahn had purchased the painting from the Galerie Renou & Pouet in Paris in 1975, Rownd said.
In the fall of 2001, Alsdorf decided to sell it through the Los Angeles gallery of art dealer David Tunkl.
"I believe she was making decisions people make toward the end of their lives," Rownd said. "She believed this was the appropriate way to dispose of the painting, rather than to give it to her children, who did not have the same love of art she did."
When Tunkl sent the painting to Paris for viewing, a prospective French buyer, who is not named, checked with the Art Loss Register, a London-based database of Nazi-looted art, and found that it had been looted, according to Bennigson's suit.
"If she hadn't tried to sell it, no one would even know," said Michael Bazyler, a leading scholar on Holocaust reparations and professor of law at Whittier Law School.
"For years, there was an attitude of, 'Don't ask, don't tell,' a willful blindness," Bazyler added. "As a result, the U.S. was flooded by art that was stolen by the Nazis, and no one asked about its provenance."
David Tunkl's attorney, Stephen Bernard of Los Angeles' Nagelberg & Associates, said that, because of Alsdorf's and Hahn's sterling reputations in the art world, his client had no reason to question the painting's ownership.
"If Tunkl had no knowledge about this painting and hadn't known Marilyn for years, and didn't know where she got it, maybe he would have wondered about its history," Bernard said. "But having known both Alsdorf and Hahn for years, he had no concerns ... My client is not in any way involved in this, and I'm not sure why he's still a party."
"Tunkl is going to be in this, no matter what," Schoenberg replied. "He is here in L.A., and he sent the painting to Chicago after being sued and having notice of being sued."
While art dealers or sellers have no legal obligation to check a painting's provenance, some experts think someone dropped the ball on the Picasso sale.
"In my mind, there was a failure here," said Owen C. Pell, art litigant and partner with White & Case in New York. "A sale means you're taking the risk, and you would think that any art dealer in making the sale would check the provenance of the piece he or she is trying to sell."
"I don't think any art dealer would want to sell Holocaust art," said attorney Lawrence M. Kaye, partner with New York's Herrick, Feinstein. Kaye is considered by some to be the pre-eminent attorney in the field of art law dealing with plaintiffs' recovery of looted art and antiquities.
"I think people do sell things they know are stolen Holocaust property, but it doesn't happen often," Kaye said. "With Holocaust property, there is a sensitivity, and reputable museums and dealers don't want that loot in their collections."
Rownd argued that buyers, not sellers, have the responsibility to check a painting's background.
"In an ordinary transaction, it would be the buyer who would check," he said.
Hahn, who is retired and living in Santa Barbara, did not return calls for comment.
Alsdorf's husband, James Alsdorf, was no stranger to stolen-art recovery efforts. He was a founding trustee of the International Foundation for Art Research, a nonprofit organization founded in 1969 and concerned with authenticity and art theft. The organization helped the London-based Art Loss Register expand its database of lost artworks.
Rownd said his client's high profile in the arts, along with her husband's involvement in recovery efforts, shows the couple had no suspicion about the painting.
"She and her husband both had absolutely no knowledge of its background and no reason to question it," he said, "especially considering the solid reputation of the art dealer from whom they purchased the painting."
Regardless, Schoenberg said the evidence supporting Bennigson's claim is overwhelming.
When the Art Loss Register discovered the Picasso in its database, it located Thannhauser's records in Geneva at the Silva Casa Foundation, which administered Thannhauser's estate, according to a court statement by Sarah Jackson, historic claims director for the Art Loss Register.
The records indicated that Landsberg, not Thannhauser, was the painting's rightful owner, Jackson said.
The Berlin restitution office's files include a photograph of Thannhauser's home showing the painting on the wall.
"Stolen by the Germans" and "Carlota Landsberg" were written on the back of photograph, according to court documents.
"Not only do the defendants not have any evidence to the contrary, but they're not going to find any," Schoenberg said.
Rownd is not so certain.
"It doesn't surprise me that he says that, but that doesn't mean that it's so," Rownd said. "We have the right to investigate and evaluate, and that's what we're going to do."
Rownd said he is investigating all the facts associated with the case, including whether Bennigson is the painting's sole heir.
In the past, competing claimants to Nazi-looted art have hammered out financial compromises, said Anna Kisluk, director of art services for the Art Loss Register.
In 1998, claims to a Nazi-confiscated Degas pastel monotype were settled when the painting was purchased by the Art Institute of Chicago.
The proceeds of the sale were split between Chicago resident Daniel C. Searle, who had purchased the landscape in 1987 for $850,000, and the heirs to the prewar owners, Nick and Simon Goodman of Los Angeles and their aunt, Lili Gutmann. The settlement stipulated that the museum would credit both Searle and the heirs when displaying the painting.
Before filing suit, Bennigson said he offered to settle for half the Picasso's value, but Alsdorf did not accept.
"The negotiations weren't going anywhere, and they were trying to get tough and say it was way out of line to ask for the painting," Bennigson said.
Schoenberg suggested that Alsdorf could file a claim against Hahn or the French gallery for misrepresenting the painting. But Rownd said his client believes she is entitled to full ownership of the Picasso.
"We believe that she has a right to keep the painting, that the entire current value of it is hers, and that the courts will say as much," he said.
A representative from the Galerie Renou, named only as M. Covo, told the Art Loss Register he would be willing to talk about where the gallery got the painting if he was given a "hold harmless" release by the current owner and claimant, according to court documents. The release was not granted, Jackson said.
Bennigson said he would like to recover the painting or its full market value.
"If I get it, I'm not going to have something that's worth millions hanging on my wall," Bennigson said. "I'm not that big of a believer in inheritance as an institution, but between me and Mrs. Alsdorf, I have a better claim on it, and I think I would make better use of the money."
But if the case goes on, the only winners may be the lawyers, Schoenberg warned.
"The best-case scenario is that people finally realize the painting has to be returned with small amounts of litigation," he said.