As we walk through art museums, admiring the paintings, sculptures, and artifacts, we (sometimes) read the little cards that explain each piece and identify who donated or loaned it to the museum. We might not pay much attention to that information, but litigation could be lurking in those cards. When an American museum imports works of art or cultural heritage to display temporarily, can someone who claims to own the items sue to prevent their return? A judge in the Eastern District of Michigan said “no,” not if the U.S. State Department treats the objects as immune from seizure, but the Court of Appeals for the Sixth Circuit appears to think otherwise. That court is currently considering this issue and appears likely to rule that the Immunity from Seizure Act, 22 U.S.C. § 2459, does not deprive U.S. courts of authority to decide who owns foreign art on loan to U.S. museums. 

I.     Background

In Brokerarte Capital Partners, LLC v. The Detroit Institute of Arts, the plaintiff, an American LLC owned by a Brazilian individual, claims to own Vincent Van Gogh’s painting, Liseuse De Romans, also known as “The Novel Reader” or “The Reading Lady.”  Plaintiff alleges that it bought the painting in 2017, arranged for a third party to store it in Brazil, and then lost track of the painting because the third party absconded with it. Plaintiff recently learned that someone, who has not been identified, loaned the painting to the Defendant museum, the Detroit Institute of Arts, to display it as part of a Van Gogh in America exhibition. The exhibition ran from October 2, 2022 to January 22, 2023. On January 10, 2023 Plaintiff sued the Detroit Institute of Arts to recover the painting. Plaintiff also moved for a temporary restraining order and possession to require the museum to deliver the painting to Plaintiff, or at least hold on to it, pending final judgment in the case. The museum opposed, arguing that Plaintiff could not succeed on its claim because the Immunity from Seizure Act forbids the court from seizing the painting. 

II.     The Immunity from Seizure Act

Congress passed the Immunity from Seizure Act in 1965 “[t]o assist and encourage cultural exchange” with other countries. The act establishes a program, administered by the State Department, pursuant to which U.S. institutions that import objects of cultural significance for temporary display can apply to the State Department to have those objects declared immune from judicial seizure. If an object is immune, then “no court of the United States … may issue or enforce any judicial process, or enter any judgment, decree or order, for the purpose or having the effect of depriving [an] institution, or any carrier engaged in transporting such work or object within the United States, of custody or control of such object[.]”

Such immunity attaches if several requirements are met, including that the U.S. institution imported the object pursuant to an agreement with the object’s foreign owner or custodian, that the institution is displaying the object temporarily, and that the President or its designee, i.e., the State Department, determines that the object is of cultural significance and that its temporary exhibition in the United States is of national interest.  

In this case, the museum applied to the State Department for immunity for the Van Gogh painting at issue. The State Department determined that the painting was of cultural significance and that its display was in the national interest. Notice of such determination was published in the Federal Register.

Plaintiff argued to the District Court that, despite the State Department’s notice, the museum could not demonstrate immunity over the painting because the museum did not obtain the painting from its owner or custodian, as the statute requires. Plaintiff claims to be the painting’s true owner and contends that any “custodian” who loaned the painting to the museum had no right to do so because it had no right to possess the painting in the first place.

III.     The District Court’s Decision

On January 20, 2023 the District Court rejected Plaintiff’s contentions. It deferred to the State Department’s determination that the museum had met the requirements of the Immunity from Seizure Act. Consequently, the court held that it could not issue any order depriving the museum of custody or control of the painting. With the court’s hands tied, Plaintiff could not succeed on the merits of its claim to recover the painting. The District Court denied Plaintiff’s motion for a temporary restraining order and possession and dismissed the case.

IV.     The Plaintiff’s Appeal and the Sixth Circuit’s Injunction

Plaintiff quickly appealed to the Sixth Circuit and moved for an injunction directing the museum to retain possession of the painting pending the decision on appeal. Plaintiff argued that the District Court erred in deferring to the State Department on a question that is the province of the courts. Plaintiff contended that Congress tasked the Executive Branch with deciding only two of the many requirements of the Immunity from Seizure Act – whether an artwork is of cultural significance and whether importing the artwork for temporary exhibition is in the national interest. According to Plaintiff, the Act did not delegate to the State Department the threshold question of whether the object was imported “pursuant to an agreement entered into [with] the foreign owner or custodian thereof,” thereby leaving that issue for the District Court to decide. Plaintiff also argued that it would be irreparably harmed absent an injunction because Plaintiff might never find the painting again if the museum were to return it to the unidentified lender.

The museum opposed Plaintiff’s motion, arguing that the State Department’s determination of immunity was dispositive. The Association of Art Museum Directors, the American Alliance of Museums, and 49 individual art museums filed an amicus curiae brief in support of that position. Amici argued that the Immunity from Seizure Act prohibits the District Court from exercising jurisdiction over the painting. Amici asserted that a contrary result would weaken confidence in the protections of the statute and undermine the ability of U.S. museums to obtain and exhibit foreign artwork for the public.

A motions panel of the Sixth Circuit granted Plaintiff’s motion and issued an injunction ordering the museum to maintain possession of the painting pending the outcome of the appeal. The panel agreed with Plaintiff that Congress delegated to the Executive Branch only the questions of whether an artwork is of cultural significance and whether importing and displaying it would be in the national interest. Congress, the panel believed, did not direct the State Department to decide whether the work was imported pursuant to an agreement with its owner or custodian. Therefore, the panel concluded that Plaintiff will likely succeed in arguing that the District Court may determine whether that requirement was met. 

The parties are now briefing the appeal on the merits. They are doing so on an expedited schedule. Briefing is scheduled to be completed by March 14, 2023, and the court is likely to decide the appeal soon thereafter. 

Based on the motions panel’s injunction ruling, the Sixth Circuit seems likely to reverse the District Court’s decision and remand to that court to decide if the painting is immune from seizure. That question will turn on whether the museum obtained the painting pursuant to an agreement with the painting’s owner or custodian. Resolving that issue presumably will require deciding whether the painting’s unidentified lender had any right to possess the painting and lend it. 

If the District Court must decide who can lawfully possess the painting, then going forward, other putative owners of other artworks loaned to U.S. museums could ensnare those works in litigation, requiring the borrower museums to hold the art until the ownership disputes are resolved. Such lawsuits could, as the amici museums warn, make it more difficult for U.S. institutions to import and display significant pieces of art and cultural heritage.

We will continue to monitor this appeal and will publish an update after the Sixth Circuit issues its decision.