Time is No Excuse: Why Picasso’s The Actor Doesn’t Belong in the Met
If a person is forced to sell a family heirloom in order to save their life during times of war, is that transaction legitimate? This is the central question that the United States Court of Appeals for the Second Circuit had to tackle in the case Zuckerman v. The Metropolitan Museum of Art (2019). This case followed a lawsuit initiated by plaintiff Laurel Zuckerman in an attempt to recover The Actor, an original painting by Pablo Picasso that is currently held at the Metropolitan Museum of Art in New York City. The painting in question once belonged to Zuckerman’s late relatives, Paul and Alice Leffman, who sold it in 1938 to a private dealer in order to obtain funds to flee fascist Italy and Nazi Germany. [1] In this case, Zuckerman asked the Second Circuit Court of Appeals to consider the relationship between time and property rights, calling into question a larger debate over what to do with the ownership of “lost art.” While it is important for courts to consider time in these property reclamation cases, more must be done to protect the fundamental rights of individuals who have already been victims of pilfering due to war and persecution.
The procedural history of the Zuckerman case and the history of The Actor are important aspects with regards to understanding how the court came to its decision. After the Leffmans sold this painting in 1938, they used the funds to flee to Switzerland and then Brazil. They were only able to return to Europe in 1947. [2] Once in Europe, the Leffmans were able to make a number of successful claims for their lost possessions with the assistance of counsel for Nazi‐era property losses, but those claims were limited to property that was seized directly in Germany and not in other countries. [3] In the meantime, The Actor was taken to the U.S. and donated to the Met in 1952, appearing in the Met’s published catalogue of French paintings in 1967 - one year after Alice Leffmann’s death. [4] Ms. Zuckerman only learned about the painting in 2010 when she became the administrator of her deceased relatives’ estate, more than 50 years after The Actor was first acquired by the Met. When the museum refused her original 2010 request to return the painting, Zuckerman filed an official suit in 2016. [5]
In the time between Zuckerman’s initial request in 2010 for the painting and her 2016 lawsuit, the HEAR Act was passed by Congress. The HEAR Act, or the Holocaust Expropriated Art Recovery Act of 2016, resulted from debates about addressing property ownership of items taken or sold from refugees of the Nazi regime during World War II. [6] Under pressure from international organizations to make it easier for heirs to reacquire items sold or taken during the war, Congress passed this act which created a nationwide statute of limitations for bringing claims to recover such property. [7] Using the newfound legal basis provided by the HEAR Act, Zuckerman argued to the court that her relatives had sold The Actor under duress from the war and that the sale was therefore void. The Met, on the other hand, argued that Zuckerman’s request for the painting was illegitimate due to the long time interval between the acquisition of the painting by the museum in 1952 and her formal request, using the “doctrine of laches” to support this claim. [8] This doctrine is a legal defense that can be used in civil cases to claim that there has been an unreasonable delay on the part of the plaintiff in pursuing a lawsuit with the intent to either prevent the defendant from putting on a case or to unduly prejudice the court against their opposition. [9]
The District Court for the Southern District New York initially dismissed Zuckerman’s claim on the grounds that Zuckerman had waited too long to recover the painting and “inexcusably slept on [her] rights so as to make a decree against the [Metropolitan Museum of Art] unfair,” relying on the doctrine of laches to come to this conclusion. [10] On appeal, the Second Circuit Court also dismissed the case and thus allowed The Actor to stay within the possession of the Met. The court ruled that the time lapse between the initial sale of the painting and the claim for recovery exceeded a reasonable amount of time.
However, both courts failed to take into account the complex logistical issues that the Leffmanns and their descendants faced in trying to recover the painting in the first place. Given that there was almost 30 years between the first sale of the painting by the Leffmans and its public appearance in the Met catalogues, it was virtually impossible for the family to identify who had ownership of the painting when they were making their other lost property claims in Europe. The additional 40 year gap between this and the 2016 lawsuit occurred because Zuckerman had no legal basis for the claim until after the HEAR Act was passed. Having bad luck in realizing when a lost family heirloom was bought and who it was sold to should not be not a reason to deny someone property reclamation. The doctrine of laches principle was used too narrowly by the courts in this case and ignored the complex and tragic journey that this family went through in order to recover from past trauma.
Through the appeals process, this case shed light on flaws of the doctrine of laches and drew criticism for its use and application. Unlike a formal statute of limitations, the doctrine of laches principle is not based upon legislatively prescribed time limits, but on a precedent of “a rich history of justice, fairness, and the equitable balancing of right” that is used at the discretion of courts. [11] The doctrine of laches is often invoked by defendants in civil cases trying to argue that the plaintiff engaged in strategic delay in order to unfairly weaponize time to elicit a favorable verdict. [12] Relying on this principle, the Met attempted to explain that Zuckerman’s appeal following the HEAR Act was meant to make the case unfair for the MET and that Zuckerman would have surely lost the case if she filed a suit earlier. This reliance on the doctrine of laches, while potentially helpful in other cases where plaintiffs engage in strategic delay, attributes to Ms. Zuckerman a misplaced intent to act in bad faith in bringing her lawsuit when she did in 2016.
In their ruling, the District Court stated that the doctrine of laches would not prevail in all HEAR cases, emphasizing that “each case must be assessed on its own facts.” [13] Yet, in reaching the decision that it did with the Zuckerman case, the court effectively limited the scope of any future cases that can be brought under the HEAR Act because it found temporal concerns to be the forefront of these lawsuits. [14] Not only does this ruling tilt the scales of justice in favor of large art museums like the Met, but, through the reliance on the doctrine of laches, it unfairly attributes bad-faith intentions to plaintiffs who simply want to recover the lost property of their families.
In using rigid time parameters to limit claims to family heirlooms lost in the time of the Holocaust, courts fail to consider the diverse and tumultuous experiences of those who survived the horrific regime. Strict time restrictions in these cases are too narrow and exacting in their application, unfairly hindering the ability of people to recover the pilfered property of their relatives. Looking ahead, courts should require that defendants provide arguments beyond the doctrine of laches or time limitations because the passage of time does not outweigh the property rights of war victims who have already lost so much.
[1] Zuckerman v. Metropolitan Museum of Art, 928 F.3d 186 (2d Cir. 2019)
[2] Drawdy, Stephanie. "Claims for the Return of Holocaust Art: Scope of the US HEAR Act: Zuckerman v. The Metropolitan Museum of Art, New York." Art Antiquity & Law 24, no. 3 (2019): 285-291.
[3] Frankel, Simon J. "The HEAR Act and Laches After Three Years." North Carolina Journal of International Law 45.2 (2020): 441.
[4] Drawdy, Stephanie. "Claims for the Return of Holocaust Art: Scope of the US HEAR Act: Zuckerman v. The Metropolitan Museum of Art, New York." Art Antiquity & Law 24, no. 3 (2019): 285-291.
[5] Ibid.
[6] Barnes, Jason. "Holocaust Expropriated Art Recovery (HEAR) Act of 2016: A Federal Reform to State Statutes of Limitations for Art Restitution Claims." Columbia Journal of Transnational Law 56.3 (2018).
[7] Zuckerman v. Metropolitan Museum of Art, 928 F.3d 186 (2d Cir. 2019)
[8] “Zuckerman v. Metropolitan Museum of Art.” Harvard Law Review v. 133 (2020).
[9] Black, Henry Campbell, et al. Black's law dictionary. Vol. 196. St. Paul, MN: West Group, 1999.
[10] Zuckerman v. Metropolitan Museum of Art, 928 F.3d 186 (2d Cir. 2019)
[11] Ibrahim, Ashraf Ray. "The Doctrine of Laches in International Law." Virginia Law Review (1997): 647-692.
[12] Ibid.
[13] Drawdy, Stephanie. "Claims for the Return of Holocaust Art: Scope of the US HEAR Act: Zuckerman v. The Metropolitan Museum of Art, New York." Art Antiquity & Law 24, no. 3 (2019): 285-291.
[14] Reif v. Nagy, 106 N.Y.S.3d 5, 12 (N.Y. App. Div. 2019).