REPORT TO THE TRUSTEES OF

THE MUSEUM OF MODERN ART

WITH RESPECT TO TWO PAINTINGS

BY GEORGE GROSZ

This Report discusses the provenance of two paintings by George Grosz in

the collection of the Museum and the claims of Ralph Jentsch on behalf of the

Grosz estate to their ownership. The paintings are: Portrait of the Poet Max

Hermann-Neisse (1927) and Self-Portrait with Model (1928).

Background

While George Grosz was not a Jew and left Germany for the United States

shortly before the Nazis gained formal power, he was considered “an enemy of the

state” under the Third Reich for his political views. By the beginning of the

1930's, surrounded by the economic problems of Germany and the rigors of the

Great Depression, the market for his fine art declined and became virtually non-

existent. In the summer of 1932 he came to the United States to teach at the Art

Student’s League, and in 1933, after a brief return to Germany, he emigrated to this

country where he remained until shortly before his death, painting and teaching at

the League.

One of Grosz’s dealers was Alfred Flechtheim, a prominent Jewish dealer in

contemporary art with galleries in Berlin and Düsseldorf. Their relationship dates

from 1923, when Grosz broke off somewhat bitterly with his prior dealer, Hans

Goltz. Flechtheim saw Grosz off to America in 1933 and very shortly thereafter,

with the Nazi assumption of power, fled Germany himself. He was able to take

some of the works in his possession with him to London and tried, without much

success, to establish himself as a dealer there. His wife remained in Germany until

her suicide in 1941.

There are a number of Grosz’s logs and notebooks (although some crucial

ones, including a Section F, which may have referred to Flechtheim, are missing)

as well as some correspondence between Grosz and Flechtheim which have

survived. Despite a flare-up in 1931 when Flechtheim, suffering the problems of

the Depression and financial difficulties, apparently cancelled his contract with

Grosz whose paintings were in any event not selling the two continued in an

amiable relationship. No copy, however, of the cancelled contract or any

subsequent contract exists. Flechtheim continued in possession of a number of

Grosz paintings, writing Grosz that he had been able to get Grosz paintings out of

Germany, along with other art from his Berlin Gallery, when he escaped in 1933.

Subsequently he writes of efforts to sell the paintings through the Galerie Pierre in

Paris, and tells Grosz of the financial arrangements he has negotiated for such

sales.

From shortly after the cancellation of the contract at the end of 1931 there is

correspondence from Flechtheim, his assistant Curt Valentin, and the person who

remained in charge of his Berlin gallery after the Nazis had taken over, Alfred

Schulte, with respect to a sizeable debt (RM16,525) which Flechtheim claimed

Grosz owed the Berlin Gallery. The basis for the claim is unknown; it could be

reconciliation of sales and advances or repayment of loans made. It is repeated a

number of times in correspondence which proposes ways of repayment through

cash and drawings. The debt is never explicitly acknowledged nor, for that matter,

disputed by Grosz or any repayment arrangements ever agreed. There is no

evidence that any repayments were ever in fact made. In the arrangements with the

Paris Galerie Pierre Flechtheim says Grosz will receive 50% of the proceeds and he

will receive 25% “until your account with me is covered”.

In another letter Flechtheim tells of the liquidation of his German galleries

where only with great effort by his assistant Schulte was it possible to avoid full

bankruptcy and repay creditors 20%. He goes on to say “Your watercolors, which

you delivered to me as security, are in London unsold. Business is also bad in

London.... Even more difficult than with the watercolors is it with the oil paintings

which you likewise transferred as security to me....” referring to the paintings in

Paris at the Galerie Pierre, which, he writes, are unsold and now deposited at

Billiet in Paris.

Despite the alleged debt and the failure to make sales, relations between

Grosz and Flechtheim appear to have remained cordial. Flechtheim continued to

try to sell the Grosz works in his possession without any apparent success. In none

of the existing correspondence does Grosz complain, inquire about his paintings,

seek return of any of his work in Flechtheim’s possession, or discuss the alleged

debt. There is no record of any payments made to Grosz, or credits against the

debt.

Flechtheim died in London in 1937. His estate was represented by a British

solicitor firm no longer in existence and none of the papers in the estate accounting

apparently exist today. How the solicitors dealt with the alleged debt or the Grosz

paintings in Flechthiem’s possession is unknown.

Self-Portrait with Model (1928)

MoMA acquired this painting in 1954 as a gift from Mr. and Mrs. Leo

Lionni of New York. It is not known how the painting got into the Lionni

collection but it appears to both MoMA and Mr. Jentsch that in all probability it

was by inheritance from a relative who had purchased it before World War II from

a dealer in Amsterdam.

Lionni, an émigré himself and a well-known children’s book author, was

acquainted with Grosz but there is no evidence that Grosz knew his painting was in

Lionni’s collection. Before gifting it to MoMA, Lionni put the painting up for

auction in New York in 1950 but it did not meet its reserve estimate ($110) and

was bought in. While there is correspondence between Grosz and his brother-in-

law, Schmalhausen, indicating that the latter was watching sales and auction prices

of Grosz’s work, those letters do not explicitly mention Self-Portrait with Model.

This painting was consigned to the Galerie Flechtheim in Berlin by Grosz in

1929. It was exhibited that year in Amsterdam at the Neue Sachlichtkeit exhibition,

and in 1932 it was included in the Grosz exhibition at the Palais des Beaux Arts in

Brussels during April and May. In Brussels Flechtheim was the lender of record,

but he may well have loaned simply as the artist’s agent. In 1931 Flechtheim had

cancelled his contract with Grosz, but continued to represent him on a non-

exclusive basis, and in May of 1932 Flechtheim and his assistant Curt Valentin

began pressuring Grosz for repayment of his alleged debt to the Galerie Flechtheim

Flechtheim fled Germany in March of 1933 (Grosz had left for New York in

January) and in October writes Grosz in New York from Paris that “your pictures

are here at the Galerie Pierre, and that from the proceeds of sales, Grosz will still

receive 50% of the proceeds, until the debt is repaid....as your interests are mine as

well ....The pictures do not sail here under my flag: if so there would be no chance.

I am in general happy, that they are here; in Berlin they would have been exposed to

all dangers!!”

While this discussion focused on watercolors, not oils, Self-Portrait appears

to have been one of the Grosz works that Flechtheim was able to take with him

from his Berlin Gallery. He continued to try to sell Grosz art despite the difficult

market and Self-Portrait was among a group of Grosz works sent to Amsterdam for

an exhibition at the Gallery van Lier in 1936. Van Lier was a well-known dealer

known to Grosz and Grosz was aware of the 1936 exhibition; a friend had sent him

a copy of the announcement. Again, the paintings were exhibited in Flechtheim’s

name.

The exhibition was a failure and nothing was sold. The paintings were still in

van Lier’s possession when Flechtheim died on March 9, 1937. Subsequently, van

Lier consigned works from the exhibition to the Amsterdam auction house Mak van

Waay, where in February, 1938, they were publicly listed as belonging to the Estate

of Alfred Flechtheim and auctioned on that basis. The buyers were all Amsterdam

art dealers, including van Lier, who bought Self-Portrait for 16 guilder (about $10).

The dealers did not bid on many of the works and may have let them fall through.

Immediately after the auction some 14 unsold Grosz paintings were sold in lots for

about $3 each.

There is no record of who, if anyone, gave authority to van Lier to sell the

paintings at auction. Since the paintings were sold as belonging to the Estate of

Alfred Flechtheim the logical person to give permission would have been the

London solicitors, a reputable Jewish firm, handling that estate. Unfortunately its

records no longer exist, and while there is evidence from other sources of care taken

by the solicitors with respect to the work of other artists in which Flechtheim had a

partial ownership, there is nothing bearing on Grosz’s works. There is no record in

Grosz’s papers or logs of any effort by him to secure return of any of the works or

to authorize their sale. While Grosz clearly knew of the failed 1936 exhibit and the

fact that the paintings were then with van Lier in Amsterdam, there is no evidence

that he knew of the auction, although it was publicized, and no evidence that he

inquired as to the whereabouts of the paintings after the exhibition or upon

Flechtheim’s death.

From the absence of any such records coupled with what he regards as

extremely low prices and the fact that van Lier himself bought Self-Portrait, Mr.

Jentsch has concluded that the whole auction was a fraud set up by van Lier and the

other Amsterdam dealers to get title to the paintings at what he believes were lower

than market prices. He concludes, therefore, that title to the paintings remained in

Grosz.

Portrait of the Poet Max Herrmann-Neisse (1927)

Hermann-Neisse was purchased by MoMA in 1952 from Charlotte Weidler,

a German émigré. It was purchased through Curt Valentin, Flechtheim’s former

assistant, who had become an art dealer in New York. It is an important Grosz

painting of a close friend from his 1920 period in Berlin. Exactly when, where and

from whom Weidler acquired the painting is unknown.

The painting was sent by Grosz to Flechtheim on April 4, 1928 and thereafter

exhibited several times: at the Preussische Akademie der Kuenste

Fruhjahrsausstellung in May-June 1928; at the Galerie Flechtheim in Düsseldorf in

October 1930; in the landmark exhibition of Modern German Painting at MoMA in

April, 1931; and at the Grosz exhibition at the Palais des Beaux Arts in Brussels in

April-May 1932. At both the MoMA and Brussels exhibitions Flechtheim was the

lender of record, but again he may well have done so as agent of the artist. Valentin

was the director of the Galerie Flechtheim in 1930 when Alfred Barr visited Berlin

to arrange for the loan of the painting for the MoMA show the following year.

The provenance of the painting after the Brussels exhibition until it was sold

by Charlotte Weidler to MoMA in 1952 is uncertain. Weidler was the Berlin based

representative of Carnegie International, an art journalist and collector, and an

outspoken critic of the Nazi regime. She could have purchased the painting in

Germany from the Galerie Flechtheim during its liquidation to avoid bankruptcy in

1933, or from another person who had purchased it from the Galerie, or even

outside Germany if the painting was not returned to Berlin from Brussels in 1932 or

if Flechtheim had been able to remove it from Berlin to London or Paris.

Mr. Jentsch believes that Weidler acquired Hermann-Neisse in Berlin in the

1930's, and that along with other art including the collection of the Jewish publisher

Paul Westheim it was hidden through Weidler by her sister in Berlin, survived an

air raid, was taken to the country and finally shipped to Weidler in New York in

1948. Despite Weidler’s excellent reputation, Jentsch now believes that she

embezzled the surviving part of Westheim’s collection and sold it off without his

knowledge. He imputes similar conduct with regard to other paintings in her

collection and appears to question her long standing anti-Nazi reputation at least to

the extent she took advantage of the Third Reich’s victims.

In January 1953 Grosz wrote two letters, one to his brother-in-law Otto

Schmalhausen, the other to a friend, Herbert Fiedler, in which he referred to MoMA

having acquired a “stolen” painting. He wrote “Modern Museum exhibits a picture

that has been stolen from me (I am powerless). They bought it from someone who

has stolen it”. There is no further clarification of these remarks and Grosz never

mentioned the fact of the painting being stolen to anyone at the museum or

apparently to his close friend and benefactor, Eric Cohn. Cohn, in correspondence

with Barr, expresses his pleasure at the acquisition, compliments Barr on its repair

and cleaning, notes that it is unsigned on the front, and volunteers to bring Grosz in

to sign it.

Whatever Grosz meant by his “stolen” references he did not note the portrait

as stolen or confiscated in his postwar restitution/compensation claims with respect

to unlawful acts of the Nazis.

Analysis

There is nothing in the record – nor does Mr. Jentsch indicate any facts –

suggesting any bad faith, negligence or questionable conduct at any time by anyone

connected with MoMA. MoMA acquired both paintings in the early 1950's from

reputable persons, one by gift and the other by purchase. The purchase price

appears to have been at a fair market value for a Grosz painting at the time,

although Jentsch believes it somewhat low.

Jentsch does not explicitly seek to fault MoMA in any way although he is

critical of the low price ($10) for which Self-Portrait was sold in Amsterdam. His

case on behalf of the Grosz estate is based on the contention that title never passed

from Grosz to anyone else with respect to either painting and therefore both should

be returned to the rightful owner. In the case of Self-Portrait, his argument is based

on the contention that Grosz consigned the painting to Flechtheim, that Flechtheim

never had ownership himself, and that Grosz never received any proceeds from its

sale or otherwise ratified the sale. He rejects the debt argument with the paintings

as security and contends that neither Grosz nor Flechtheim’s estate authorized the

auction at the Mak van Waay house. He argues that in essence the auction was not

only unauthorized but took place as a result of a conspiracy by van Lier and his

dealer colleagues to “launder” title to the paintings.

Jentsch makes a similar argument with respect to the Hermann-Neisse

Portrait. Again, he believes the painting was consigned to Flechtheim with title

remaining in Grosz. He believes that after the Brussels exhibition the painting was

returned to the Berlin Galerie Flechtheim where it remained until disposed of by

sale at a distressed price or confiscated in some manner by Alfred E. Schulte who

was responsible for liquidating Flechtheim’s Berlin gallery. He believes Schulte,

who may have had Nazi sympathies although Jentsch does not believe he was a

member of the Nazi Party, played a sinister role in the liquidation of the gallery and

Flechtheim’s private collection and is responsible for the fact that after the war it

became impossible to reconstruct exactly what happened to those paintings. He sees

Weidler as a purchaser of the painting as degenerate art and Flechtheim as a victim

of the Nazis.

I do not find Jentsch’s arguments sufficiently supported by facts to be

convincing speculations. With respect to the Self-Portrait I have difficulty

believing that reputable dealers would enter into the conspiracy Jentsch speculates,

openly advertise the auction as from the Estate of Alfred Flechtheim, and sell with

no authority at all. With respect to the Hermann-Neisse, assuming it was returned

to the Berlin Galerie Flechtheim and not taken out of Germany by Flechtheim along

with other Grosz paintings, I find it difficult to accept the sinister role assigned to

Schulte in the liquidation of the Gallery. Correspondence of Flechtheim with regard

to the liquidation and the successful effort to avoid full bankruptcy praises the

efforts of Schulte in conducting the liquidation. And further there is no evidence

whatsoever, as there almost certainly would be, of any Aryanization of Galerie

Flechtheim. That the liquidation of what remained in the Galerie was related to the

Nazi ascension to power and Flechtheim being Jewish is obvious. In that sense he

was a victim. But liquidation to avoid bankruptcy is not the same thing as

confiscation. Nor can I accept Jentsch’s blanket condemnation of Charlotte Weidler

on the basis of the dispute with the heirs of Paul Westheim as one who

systematically embezzled art work of Holocaust victims. Given her anti-Nazi

reputation and the high regard in which she was held by Carnegie International it

goes too far with too little fact.

But all that being said I do not think it makes any difference from either a

legal or --in terms of my assignment, more importantly – a moral or ethical

viewpoint. So, despite my reservations about the Jentsch speculations, I am going

to assume for the purposes of this Report that they are supported by the facts.

From a legal point of view Jentsch’s claim that title never passed from

Grosz’s hands would, I believe, be defeated by three separate legal rules: It would

be barred under foreign or American law by the equitable doctrine of laches; it

would appear to be barred under the New York statute of limitations; and under

German or Dutch law the failure of Grosz to make a claim for more than thirty

years would make any claim now barred by prescription. `None of these defenses

are what one could fairly call “technical”; all have a strong element of equity and

fairness to purchasers of art in good faith.

While it is not my function to provide a legal opinion, I do not think in

coming to a judgment about these paintings the law can or should be ignored. The

Trustees of MoMA hold its collections in trust and should not from a moral or

ethical viewpoint treat the fact of good title to the paintings in a cavalier fashion.

At the same time it is important to the preservation of public trust and

confidence that the Trustees be seen by the public as acting in a fair and equitable

fashion by common standards apart from the law. That principle underlies the

special rules governing art confiscated by the Nazis from Holocaust victims or

stolen by troops in the final days of World War II. And it is that principle, not my

legal opinion, which underlies this analysis.

I start from the proposition that there is nothing that MoMA did or failed to

do with respect to the two paintings that in any way injured or took unfair

advantage of George Grosz. Alfred Barr was decades ahead of the art world in

seeing the significance of Grosz and wishing to add representative paintings to

MoMA’s collection. Everything he did in this connection was above board and

public and can withstand the most careful examination. He accepted Self-Portrait

from Lionni, a respectable collector who was acquainted with Grosz, after it failed

to meet its $110 reserve price at auction. He sought to purchase a larger version of

the Hermann-Neisse but refused an offer when its provenance suggested Nazi

confiscation from its rightful museum owner. He then purchased the smaller

version at a fair price from a reputable anti-Nazi refugee collector through a dealer

who had been Flechtheim’s assistant and whom Barr had known when he arranged

for the exhibition of the same painting twenty years before. Further, based on his

correspondence with Grosz’s close friend and sponsor, Cohn, Barr had every reason

to believe that Grosz was happy with the MoMA acquisition and exhibition of the

Hermann-Neisse.

Unfortunately, when George Grosz saw the Hermann-Neisse at the Museum

and wrote both his brother-in-law and friend that MoMA was exhibiting a painting

of his that had been stolen, neither he nor the others said a word to this effect to

anyone at MoMA. Had they done so, not only would the Museum have had the

opportunity to ascertain the facts when they were still reasonable fresh and

knowable and the reason why the artist held this view, but it would have had the

opportunity also to resolve the matter then and there at relatively little cost to it.

MoMA paid Weidler $850 ($775 plus a discount of $125 to cover the cost of repair)

for the painting and presumably Grosz would also have accepted what was then

regarded as a fair price and been delighted, as was his friend Cohn, that it was being

exhibited by the Museum. Perhaps the purchase price could have been recovered

from Weidler or Valentin. But Grosz’s silence precluded such acts to the prejudice

of MoMA since the painting is far more valuable today than it was then.

Essentially the same reasoning is true of Self-Portrait. If indeed that painting

still belonged to Grosz the facts of ownership would have been far easier to

ascertain fifty years ago than today and the ownership and potential purchase, if

appropriate, far easier and less expensive to work out. Whether or not Grosz knew

Self-Portrait was also in the possession of the Museum – and it is difficult to

believe he did not – that fact would in any event have immediately become apparent

if he had brought the alleged theft of Hermann-Neisse to the attention of MoMA

officials. Again the failure of Grosz to act created a serious, however unintentional,

prejudice to the Museum.

Jentsch suggests that Grosz found it difficult to assert rights of the kind here

involved – that he was shy or even what we might call a “wimp”. Whether true or

not, it is irrelevant to the prejudice to the Museum caused by his silence. It is one

thing to remain silent when only one’s own rights are affected. It is quite another

when that silence has the potential to adversely affect the rights of another. And the

fact that one does not anticipate or foresee that consequence does not excuse it.

Worse yet, from a moral and ethical viewpoint, would be any effort to take

advantage of that silence for one’s own benefit.

I conclude, therefore, that the “stolen” letters are fatal to the claim of the

Grosz estate since that knowledge created the legal ethical, and moral imperative to

speak out or forever remain silent and forgo any claim based on that knowledge –

knowledge which Grosz had and which MoMA could not reasonably have been

expected to discover. Accordingly, I recommend that the claim of the Grosz Estate

be rejected. In my opinion the public trust requires the Museum to preserve the

paintings in its collection and that this is the proper moral and ethical course for the

Trustees to follow.

Nicholas deB. Katzenbach