Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » January 2005 » It's a commonplace of American political life....

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01/24/2005: It's a commonplace of American political life....

that you can't fight City Hall.

So how would you feel knowing you had to fight the German Federal Government, along with the state government of the German state of Baden-Württemberg? And not only that, but those guys have 1) hired the one of the most prominent art lawyers in the world to represent them (one who specializes in recovery of lost Nazi-era artworks), and 2) advised the U.S. Attorney and the Department of Homeland Security that they might want to take an interest in in your activities.

Sounds like a pretty bad day, eh?

Keep reading below the fold to see how bad it could get, but don't worry, there's some light at the end of the tunnel.

Unfortunately St. Louis area rare book dealer Rod Shene finds himself in that position.

Any of the usual suspects in the book world could have bought the book, but only Rod Shene recognized the rare quality in the slender volume of old German drawings. He put down $3,900 for the work and hoped that one day he would be rewarded for his judgment.

Just another day on the job for Shene, 46, who buys and sells rare books for a living out of his St. Louis apartment. Though $3,900 certainly represented a sizable investment, serious dealers such as Shene typically spend up to $15,000 for a collection.

But there is nothing typical about this book. In the past four years, it has thrust him into a heated dispute with the German government, threatened to damage his reputation and robbed him of his time when he needed it most. Yet the book is the find of his career.

First, the good news: Shene was right about the book’s quality. Last year, leading auction house Sotheby’s valued the book of drawings at $600,000.
Of course, when you hear a statement like that prefaced by the words "first, the good news", you begin to wonder how many tons of bricks are going to comprise the bad news. In Shene's case, quite a few.
But Shene’s good fortune came with some bad news: The book may have been stolen from an unlikely victim — the German government. The state-owned Staatsgalerie in Stuttgart claims a World War II U.S. Army captain took the book and others from a castle and eventually deposited them in his Richmond Heights home.
Hence the interest of the German Federal government, the state of Baden-Württemberg, the U.S. Attorney, DHS, et. al. Then again, this isn't just any old book:
One-of-a-kind find

Even among German-art enthusiasts, Heinrich Vogtherr is an obscure name. A 16th-century woodcutter and painter, Vogtherr created maps and religious art. Sotheby’s believes Shene’s find is a collection of original drawings by Vogtherr of nobles from Augsburg.

"The volume of prints and drawings with illustrations for the ‘Augsburger Geschlechterbuch (Augsburg Book of Nobles)’ is a fascinating record of an artist’s working methods in the mid-16th century," according to Dr. Nancy Bialler, Sotheby’s specialist in Old Master drawings.
How came such a rare volume to end up in St. Louis, of all places?
Werner Schmidt, a spokesman for the German consulate, does not know when the museum acquired the book but says it was well before the Nazis looted the private collections of Jewish citizens.

In 1941, the Staatsgalerie hid its collections from the Allies in a castle in Waldenburg. The books remained in storage until the final months of World War II, when the 63rd Infantry Division attacked the city. John Hewitt Doty was a German interpreter for the unit and saved some of the books from a fire.

At least that’s one possible scenario, supported by Doty’s relatives. Another possibility is that Doty wanted a souvenir, but instead of swiping a weapon or Nazi flag like many GIs, he grabbed valuable artifacts. Doty, educated at Amherst College and the University of California at Berkeley, certainly possessed the sophistication to appreciate such a work of art.

Kline does not know which version is correct, nor does it matter in his case against Shene. Either way, he argues that the Staatsgalerie never willfully turned over the item.

"There was extensive looting at these storage points across Germany," Kline said. "We know what these people suffered, and if someone wanted to take home a souvenir from these days, it’s not for us to judge them. But the fact is, it was not within the authority of a soldier or a civilian to seize cultural property."

Doty never knew the books’ value nor did he try to sell them, according to nephew Clarence Brown of Medford, Ore. Rather, they shared a bookcase with many early editions of colonial works, Charles Dickens novels and art catalogs. Doty, who owned a Clayton furnishings firm, died in 1993 of an aneurysm at age 75.
Doty, in other words, was sitting on the rare books equivalent of a gold mine, and never even realized it. Some of us have all the luck, don't we?

Doty died, and his heirs began selling off the book collection. Here's where things get interesting.
[Doty's heirs] boxed up a number of books, including some German texts, and took them to book dealer Sheldon Margulis, who bought a dozen or so texts for $900.

Later in 2001, he invited some 25 dealers and bibliophiles to his apartment for one of his irregular auctions. In the kitchen, dealers helped themselves to trays of food and drink while in the bedroom they perused stacks and stacks of books. Margulis knew that "the boys" — dealers Shene, Michael Hirschfeld and Eugene Hughes — would be intrigued by four of the German texts.

Unlike some dealers who essentially work as literary day traders — buying books on the cheap one day in the hopes of turning a profit the next — these dealers function more like academics, traveling to libraries across the country to learn more about a book’s history and significance. Indeed, Shene was pursuing his doctorate in English at Washington University when he decided that the world of rare books would satisfy both his passion for literature and wish to make a decent living.

Hirschfeld bought one of the texts, and Hughes bought another. But only Shene expressed serious interest in the book of nobles.

"Part of it was gut instinct," said Shene. "I thought the drawings were authentic and by the hand of a talented artist."
Shene, noticing a German stamp in the volume, did some research. Shene's contacts at the Metropolitan Museum of Art in New York were scheduled to meet with representatives of the Staatsgalerie, and the results, when reported back to Shene, were encouraging.
In a letter to the Met curator in 2002, the Staatsgalerie official confirmed that the book once belonged to the museum and wrote, "As I told you, according to German law we have no possibility to claim such a war loss, but only can ask a dealer to offer it ‘at a reasonable price’ to us."

The letter put Shene’s mind at rest. That and the fate of Hirschfeld’s buy, which was also stamped. Hirschfeld posted his book on eBay and was contacted by the museum’s curator, who offered to pay full market value for the text. Hirschfeld had already sold the text for $6,000 to a German buyer, who then turned it over to the museum.
You may see the trouble coming though; it's the presence of those wonderful weasel words, "a reasonable price". And as you might guess, Shene's concept of "reasonable" in this context (backed by Sotheby's) parts ways, radically, with the Staatsgalerie's.
Two years later, in the spring of 2004, a healthy Shene delivered the book to Sotheby’s. He showed Sotheby’s the stamp, and its experts asked Shene for permission to contact the Staatsgalerie. Shene’s response: "Be my guest."

"And that’s when the trouble starts," said Schmidt, the German consulate spokesman.


Typically, when such an item surfaces, the German institution will offer a finder’s fee of 10 or 15 percent of the item’s value, and everyone parts ways satisfied. Rarely do such cases involve the courts or generate much acrimony. The difference here lies in the enormous chasm between how much Shene and Sotheby’s say the book is worth — $600,000 — and how much the museum says it’s worth, which Schmidt suggests is $30,000-$40,000. Shene said he was trying to negotiate a fair price with the museum when it pulled the plug on the negotiations and insisted on the book’s outright return.

"They were clear that they wanted to buy it back, but once they found out how valuable it was, they decided, ‘Now we’re going to say it’s stolen,’" said Shene’s attorney, John Cahill of New York, also an expert in art law. "They want it cheap."
Back in my time in practice, I never handled a case like this (nowhere close, even), but I get a good feeling about Shene's attorney. He doesn't mouth the magic words--"bonafide purchaser for value without notice"--but then again he was speaking to a journalist. If he and I were hoisting brewskis (or single-malt Scotch, which is probably what New York attorneys drink) in a bar somewhere, I'm sure we'd get the jargon straight.
Cahill argues that if the Staatsgalerie is the true owner, it should have taken steps to retrieve its lost assets.

"In 2001 they find the biggest clue in the world (in the appearance of the Hirschfeld book) that some of these books might exist. Do they ask, ‘Where did you get it? Are there others?’ No, they do nothing," said Cahill. "If they had any real interest or claim to the book, that’s would they would have done. At some point, these claims can’t be brought any more, and people who purchase work innocently should be protected."
The Staatsgalerie's lawyer, of course, takes a different view:
Kline, the attorney for the museum, cannot say why the Staatsgalerie did not do more to discover the fate of the missing books. But that does not erase the fact that the Staatsgalerie never relinquished ownership of the book. That is, in his mind, the core fact of the case. Any other arguments, he says, are just legal acrobatics.

"What matters is that there is no record this book was ever de-accessed. We don’t have to prove that it was stolen, only that the museum never gave it away," Kline said.
Most likely result: They'll be splitting the difference. Shene still makes a cool profit, and the Staatsgalerie still gets their book back, cheap. Just not as cheap as they were hoping.

Len on 01.24.05 @ 07:03 PM CST

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