While the National Gallery's purchase of Gentileschi's 'Self-Portrait as Saint Catherine of Alexandria' may raise "ethical questions", the acquisition "has also potentially opened the door to a claim for its return", according to Paris-based art litigation expert Melina Wolman of Pinsent Masons.
Gentileschi is one of the most celebrated painters of the 17th century Italian Baroque period. The National Gallery purchased the painting for £3.6 million following its discovery in France in 2017, and intends to loan it to "unusual and unexpected" venues from March next year, including Glasgow Women's Library. However, as reported by The Times (registration required), the painting is one of several to appear on the gallery's 'watch list' of paintings which lack full ownership documentation during the second world war.
"In France, where the Gentileschi self-portrait was situated, there is a plethora of spoliation of artworks from Jewish owners during the Nazi era," said Melina Wolman. "The removal of labels from the back of paintings was a tactic used to obscure previous sales and ownership. So too was keeping the artwork in family ownership and hidden from exhibition for years in the belief that a statute of limitations would eventually defeat any claim. These hallmarks of stolen art seem to be both present with the National Gallery Gentileschi."
"However, while the provenance of the painting raises ethical questions about the purchase, conversely, by purchasing the painting, the National Gallery has also potentially opened the door to a claim for its return, if the right circumstances are met. As a way forward we might look to the Musée du Louvre in Paris, which recently exhibited all its paintings known to have been looted during the second world war, in a bid to identify the rightful owners," she said.
Art litigation expert Sinead Esler of Pinsent Masons said that, over the last two decades, there has been an increasing emphasis on the importance of identifying and disrupting trade in stolen artwork, particularly from the Nazi era, and of returning it to its rightful owners.
"The 1998 Washington Principles on Nazi-Confiscated Art were a key milestone," she said. "Unfortunately, the Principles are non-binding, and many affected countries have been slow to incorporate them into national law."
"The UK offers a narrow route to recovery for cultural objects lost during the Nazi era which are now in the possession of a UK national collection, or museum or gallery established for the public benefit, and where return of the object is recommended by the UK's Spoliation Advisory Panel as advisor to the secretary of state. Normally, UK national institutions are prevented from disposing of objects in their collections, but doing so in these limited circumstances has been made possible by the (recently extended) Holocaust (Return of Cultural Objects) Act 2009," she said.
Given the risk of having to return an artwork to its rightful owners, and the possibility of legal action if the current owner is based in a jurisdiction which permits such legal action, a "full and robust interrogative provenance review" is essential before committing to the purchase of major artworks, the experts said.
"So too is the inclusion of contractual warranties in purchase contracts which need to be cautiously drafted," said Wolman.
"If a painting has to be returned, the current owner will want the ability to recover the price paid, having regard to the law in the relevant jurisdiction; no less so in the Gentileschi case, should the artwork be found to have been looted, as the price was several million pounds," she said.