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Published: Friday, 12/29/2006

Judge rejects claim to Gauguin painting

BY TAHREE LANE
BLADE STAFF WRITER
The Toledo Museum of Art bought Gauguin's 'Street Scene in Tahiti' for $25,000 in the 1930s. The Toledo Museum of Art bought Gauguin's 'Street Scene in Tahiti' for $25,000 in the 1930s.
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A claim by 15 people who said they should receive a valuable Post-Impressionist painting purchased by the Toledo Museum of Art in 1939, or be compensated for it, was denied yesterday in U.S. District Court in Toledo.

Their claim was filed in April as a response to a January lawsuit in which the museum, in a pre-emptive strike, asked the court to name it the rightful owner of the 1891 Street Scene in Tahiti, by Paul Gauguin, which has an estimated value in the $10 million to $15 million range.

Citing Ohio's statute of limitations, U.S. District Court Judge Jack Zouhary said the ownership claim by 15 "distant heirs" of a Jewish German woman, who sold the painting during the chaos of Nazi terror, was invalid.

No decision has been rendered on a parallel lawsuit filed in Detroit by the same group of people asking for the return of the 1889 The Diggers by Vincent van Gogh from the Detroit Institute of Arts, thought to be worth even more.

Both paintings were sold by Martha Nathan in 1938 to a trio of art dealers she knew. After she moved to Paris in 1937, the Nazi government stole paintings that remained at her German home. But much of the art she had inherited from her husband was stored in Basel, and in December, 1938, she sold the Gauguin to the dealers, all of whom were Jewish, for $6,865 and the van Gogh for $9,364. About six months later, the Toledo museum paid $25,000 for the Gauguin.

"In short, this sale occurred outside Germany by and between private individuals who were familiar with each other," Judge Zouhary wrote in the 11-page decision. "The Painting was not confiscated or looted by the Nazis; the sale was not at the direction of, nor did the proceeds benefit, the Nazi regime."

Zouhary Zouhary
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He noted that after World War II, Ms. Nathan sought restitution for some of her confiscated property, but didn't attempt to get the Gauguin or van Gogh back.

"Up to her death in 1958, 20 years after the alleged sale, she did not challenge the art dealers' purchase or the subsequent sale to TMA," Judge Zouhary said.

The heirs should have spoken up long before 2004, when they first contacted the museum about their possible right to the large oil on canvas, he said.

Ms. Nathan had no children and the heirs, all but one of whom live in other countries, are thought to include grand-nephews, grand-nieces, and perhaps friends.

The decision does not declare the museum to be the owner, but Don Bacigalupi, director of the Toledo museum, was pleased.

"The Federal Court's decision dismissing the Nathan heirs' claim to the painting confirms our position and validates our vigilant defense of TMA's rightful ownership of the Gauguin," Mr. Bacigalupi wrote in a short statement.

Immediately after being contacted by the heirs, the museum hired Los Angeles attorney Thaddeus Stauber, who has represented other museums in disputed-ownership cases. Mr. Stauber advised the Toledo and Detroit museums to hire an expert to research the records dating to the 1930s, which they did. He noted that the judge relied on that research in making his decision.

"My reading of the decision is that Judge Zouhary took careful note of the extensive research the institutions had us do which detailed Mrs. Nathan's history and other postwar claims she made, and the court was comfortable that she didn't pursue the case," said Mr. Stauber, who works for Nixon Peabody LLP.

Philip J. Smith, New York attorney for the heirs, said he had no comment, noting that his clients live in many countries around the world. They still have the right to defend themselves in the museum's January lawsuit to name the museum the owner.

In February, the heirs asked the museum to withdraw its lawsuit and shift the decision about ownership to a nonlegal body such as an independent art commission, which might be more likely to consider moral aspects, they said. The museum refused.

Judge Zouhary has scheduled a conference call today among all the attorneys to discuss how to proceed with the museum's lawsuit.

Contact Tahree Lane at:

tlane@theblade.com

or 419-724-6075.



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