Fragment of Matisse's “Portrait of Greta Moll”

The National Gallery of Art in London can keep a Matisse portrait allegedly stolen from the distant relatives of the subject of the painting itself, the U.S. Court of Appeals for the Second Circuit ordered in a summary judgment Monday.

The panel of Circuit Judges Barrington Parker, Peter Hall and Raymond Lohier Jr. ruled that the plaintiffs, the heirs of Matisse muse Margarete Moll, failed to satisfy the requirements of the expropriation exception under the Foreign Sovereign Immunities Act.

Specifically, the plaintiffs failed to allege that the painting, “Portrait of Greta Moll,” was “taken” under the terms of the exception by the National Gallery, acting as an agent of the British government.

At issue was the sale of the painting back in 1947 by a former art student of Moll's husband. The painting was placed in the former student's hands to protect it from being looted by Soviet troops occupying Berlin after World War II. The painting was ultimately acquired by the National Gallery in 1979.

Molls' descendants were blocked from pursuing claims against the museum by U.K. law, which shields British museums from having to turn over pieces, until 2014, when an administrative panel specifically tasked with deciding Holocaust-era claims heard the case. As the date of the painting's sale was after the 1945 time limit, the panel ruled in the museum's favor.

The plaintiffs filed suit in federal court in September 2016. A year later, U.S. District Judge Valerie Caproni of the Southern District of New York granted the National Gallery's motion to dismiss the amended complaint, agreeing that the defendants failed the exception test, as “[n]o sovereign was responsible for the illegal conversion of the Painting.”

The appellate panel agreed. FISA would normally make a sovereign or its instrument immune from prosecution. Under the expropriation exception, that immunity is voided under a four-part test that includes being in violation of international law and when property rights are at issue. Additionally, the property must have been actually taken by the sovereign, not a private individual, as was the case here, the panel noted. That the museum didn't later compensate Moll or her descendants “for that taking after the fact does not provide a basis for jurisdiction over a foreign sovereign and its instrumentality,” the panel stated.

Sam Israel P.C. managing partner Sam Israel, who deals in property and art law, said the museum was clearly on “solid ground” on another aspect of FSIA because all trade with the painting ended once it was sold to the National Gallery.

“But there remains an open issue of whether an argument founded more on the rationale behind the bad title cases (law under the [Uniform Commercial Code]) which might be further buttressed by attention to commercial activities around the art,” Israel said. “Are posters and postcards sold for instance.”

Rowland & Petroff name attorney David Rowland represented the plaintiffs on appeal. He said he and his clients were studying the decision, declining to comment beyond that.

The National Gallery's legal team was led by Nixon Peabody partner Sarah Erickson Andre. She did not return a request for comment.

Related:

Greta Moll's Heirs Say Stolen Portrait Is at London Museum

Judge Lets London's National Gallery Keep Matisse Painting