MFA Houston Can Keep Contested Nazi-looted Bernardo Bellotto Painting: US Appeals Court

A United States appeals court has affirmed a prior ruling that the Museum of Fine Arts (MFA) Houston can keep an 18th-century painting contested in a lawsuit by the heirs of its original German Jewish owner.

Bernardo Bellotto’s The Marketplace at Pirna (ca. 1764), which has been part of the MFA Houston‘s permanent collection since 1961, was once owned by the German department store magnate Max J. Emden, who lost much of his wealth due to Nazi persecution.

A panel of three judges for the US Fifth Circuit court of appeals affirmed a lower court’s dismissal of a claim brought by some of Emden’s heirs, the Art Newspaper reported.

The legal dispute stems from a misidentification by a foundation established by the Dutch government, which sent the wrong painting — the Bellotto — to a Nazi loot claimant after the end of the war. In 2021, three of Emden’s heirs filed a lawsuit based on the misidentification.

An earlier 2022 ruling by a judge in US District Court for the Southern District of Texas in Houston declared that, despite the mistake, the Dutch restitution was “a sovereign act” and that the decision to dismiss the case was based on the district court’s inability to determine the “invalidity” of “proceedings” related to a “foreign nation.”

The ruling, however, did not determine the painting’s rightful owner.

Emden was allegedly forced to sell three Bellotto paintings under duress below market value to German dealer Karl Haberstock in 1938 during the Nazi regime. Around the same time, German art dealer Hugo Moser, who owned a reproduction of Marketplace at Pirna “after Bellotto” painted by an anonymous artist, fled to the Netherlands and left the painting with an art restorer in Amsterdam. Both versions were seized by the Nazis and were intended to be included in Adolf Hitler’s Führermuseum.

At the war’s end, the Monuments Men and Women recovered Emden’s three paintings from an Austrian salt mine, as well as Moser’s copy from another storage facility. Both versions of Marketplace at Pirna were sent to the Munich Central Collecting Point (MCCP).

Later, the Dutch Art Property Foundation received a claim for the “after Bellotto” copy of Marketplace at Pirna from Amsterdam’s Goudstikker Gallery to the MCCP. Emden’s Bellotto was inadvertently shipped to the Netherlands. Before Goudstikker took possession of the work, however, Moser filed a competing claim and the original Bellotto was send to Moser.

Even though the Monuments Men and Women recognized the error in 1949, it was already out of the Dutch Art Property Foundation’s control. Moser sold the Bellotto to the American businessman and collector Samuel Kress three years later. Kress loaned it to the MFA Houston in 1953 and subsequently gifted it to the museum.

Since the mistake was made by the Dutch government, the Fifth Circuit judges ultimately ruled that “it is not our job to call into question the decisions of foreign nations”.