Marketplace at Pirna by Bernardo Bellotto
One of the first stories I ever covered back in 2021 was about an eighteenth-century cityscape central to a heated restitution dispute. Marketplace at Pirna by the Venetian painter Bernardo Bellotto is currently housed at the Museum of Fine Arts in Houston, the administration of which has been fighting in the courts against the claims made by the descendants of Max Emden. Emden was a German Jewish department store owner who sold his three Bellotto paintings under duress during the Holocaust. And now, a recent court decision has created a roadblock as the family attempts to regain the painting.
The panel of three judges at the Fifth Circuit’s Court of Appeals in New Orleans ruled that the MFA is allowed to keep the Bellotto painting, but not because of the validity of its legal argument. This is mainly due to a technicality. One of the reasons why the Bellotto ended up in Houston in the first place is because it got mixed-up with another painting in the havoc and confusion following the end of the Second World War. After the war, the agents of the Monuments, Fine Arts, and Archives Section Unit, commonly known as the Monuments Men, confiscated several of the Emden family’s paintings from Nazi hiding places. Most were returned to the family in 2019 after a commission determined Emden sold them involuntarily. Marketplace at Pirna, however, was not one of these paintings. The Bellotto had been mistaken for a later copy, previously owned by the Moser family from the Netherlands, and the Monuments Men gave it to the Dutch Art Property Foundation (SNK). They, in turn, gave it to the Mosers. The Mosers sold the painting to a buyer in the United States in 1952, who later donated it to the MFA Houston in 1961.
The appellate court upheld the lower courts’ decisions by ruling that even though the case’s root lies in a mistake, that mistake was, regardless, made by a foreign government. In what is known as the act-of-state doctrine, American courts cannot rule on an act by a foreign state within their own territory. Therefore, the court cannot act in favor of the Emden family’s claim. Judge Jerry E. Smith wrote in the ruling, “The Emdens may be right: […] the Museum may be violating the Washington Principles by refusing to return the painting to the Emdens. But, per the act of state doctrine, it is not our job to call into question the decisions of foreign nations.” In short, MFA Houston can keep the painting, even if their ownership is because someone made a clerical error nearly eighty years ago.
The court did not rule on who the painting’s rightful owner is, admitting that legal precedent has their hands tied. This is despite the fact that Marketplace at Pirna should, by any other standard, be returned to the Emden family. Of course, this could all be solved with MFA Houston returning the painting to the Emden family voluntarily instead of needlessly drawing out these legal battles, which will only shine a spotlight on the museum administration’s obstinance. Publications like ArtNet call MFA Houston’s approach the “‘head-in-the-sand’ position”. Despite the criticism and the documentary evidence, the museum’s website completely omits the Emden family from the painting’s provenance. The painting’s webpage says that the work’s first recorded appearance is at the Monuments Men’s collecting point in Munich. Prior to that, it simply reads, “Early whereabouts unknown.” As I wrote in 2021, “By denying the Emden family’s claim, even after the questionable circumstances of the work’s sale were revealed, the museum is essentially stealing the painting a second time. And if the restitution went underway, would it really be such a great loss?” After three years, these words still apply.