London’s National Gallery was sued in a New York court last Wednesday (7 September) for the return of a 1908 portrait by Henri Matisse.

The three grandchildren of the portrait’s subject, Margarete Moll (known as Greta), filed suit for the oil painting or at least US$30 million in compensation (£23 million) in the U.S. District Court in Manhattan. Oliver Williams and Margarete Green of Great Britain and Iris Filmer of Germany claim the ‘Portrait of Greta Moll’ was stolen from their grandmother in the aftermath of World War II. Prior to her departure for the United Kingdom, Greta entrusted the painting to her husband’s art student. Agreeing to transfer the portrait to an art dealer in Switzerland for safekeeping from looters the student instead sold it to the dealer and absconded to the Middle East. From Switzerland, the painting moved to the US and passed through several collections including Manhattan’s now defunct Knoedler & Co art gallery before the National Gallery of London purchased it in 1979.

Unique to this art restitution claim is the fact that the plaintiffs readily admit the work was not stolen from a Jewish victim of Nazi persecution in WWII Europe. Instead, they argue the work was the subject of an “illicit transfer” following the war which invalidated the rights of any subsequent owners. Faced with overcoming the hurdle of foreign immunity, which protects the National Gallery (part of the British government) from the intervention of an American court, the plaintiffs are seeking to invoke the expropriation exception to the rule. This can be used where property is taken in violation of international law. Whereas Holocaust restitution lawsuits ordinarily seek to establish that Nazi spoliation of Jewish property constitutes expropriation, the Moll plaintiffs submit the Allied occupation of Germany triggered the exception as it forced Greta to transfer the painting abroad for fear it might be stolen.

According to the complaint, the National Gallery should have enquired further into the painting’s provenance before completing the 1979 sale and ignored a “red flag” indicating the work might have been stolen. In a statement responding to the Moll lawsuit, the National Gallery announced it would be defending itself against the legal action and asserted its title to the painting, which it claims to have purchased “in good faith” from a commercial gallery in London. Acknowledging the emergence of new information on the portrait which indicates a gap in its provenance between 1947 and 1949 the gallery maintains that there is no proof of theft and that it “made the types of enquiries which all UK museums and galleries regularly made” at the time of purchase in 1979. Furthermore, the gallery insists that it would be under no obligation to return the painting to Greta’s heirs if the theft were proved and would in fact be statutorily constrained from doing so.

Lawyer for the plaintiffs, David Rowland, told Reuters in an interview that “it is not acceptable, moral or legal for museums to bury their heads in the sand, and keep stolen paintings in their collections”.