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Georgia O'Keeffe
And the Purloined Paintings of Princeton

A Case Study in What Happens When the Courts Meet Stolen Art

Rare is the painter who becomes a legend in his or her own lifetime, and rarer still when such a painter is a woman. Georgia O'Keeffe (American, 1887-1986) was such a painter. Her images of the American West sparked a wave of popular "western" decorating style as women across the nation embraced her stark images and emotionally soothing tones; her larger-than-life flower images were at once abstract pop-art and highly erotic, emphasizing the fact that flowers are, after all, the sexual organs of the plant, rather than the emblems of innocence for which they are so often employed in symbolic imagery.

But aesthetic popularity did not render O'Keeffe immune to legal entanglements. In the mid 1970's, Georgia O’Keeffe filed a lawsuit in New Jersey against Barry Snyder, doing business as the Princeton Gallery of Fine Art, regarding three of her paintings which she claimed had gone missing many decades earlier (1946, O’Keeffe v. Snyder, 416 A.2d 862 [1980]). For lawyers, the outcome of that lawsuit is most important in New Jersey, where the state Supreme Court used it as an opportunity to significantly change state law regarding lawsuits over stolen property. But for artists and art collectors everywhere, the case provides an instructive and valuable guidebook to how all courts think about and approach legal issues of long-ago-lost or -stolen art, and especially in how courts think about the steps that artists and subsequent art owners take to inventory, register, and protect their works of art.

Two Stories

In the mid-1940's, Georgia O'Keeffe was married to a renowned photographer named Alfred Stieglitz, a man twenty three years her senior who was one of the moving forces behind the growing acceptance of photography as artwork. Stieglitz had managed several commercial galleries, but was also involved in several art display and sales facilities which were operated on a cooperative basis by a collective of participating artists.

According to O'Keeffe, who was in her 90's at the time of the lawsuit against Snyder, in 1946, Stieglitz arranged an exhibit at one of these galleries, An American Place, which included a work by O'Keeffe called Cliffs. In March, O'Keeffe discovered that the painting was missing from the wall of the gallery. In court documents, O'Keeffe estimated the work to be valued at about $150 at the time of the theft. She attested that she discussed the missing painting with her husband, and that they did not report it to the police, but that they did tell other friends in the New York art community about the purloined painting.

In the lawsuit, O'Keeffe further alleged that two weeks later, she discovered two other small paintings of hers, Seaweed and Fragments, were also missing. However, she did not mention these at the time, even to her husband, out of fear of upsetting him. Stieglitz was in fragile health at the time; indeed, he died (of a heart condition, in his early 80's) less than three months later.

None of the paintings were insured; neither O'Keeffe nor Stieglitz made any claim for insurance reimbursement for the three works. Neither did they issue any kind of press release regarding the theft, nor report the theft to publications like Art News which were in existence at the time. Like many people working in the creative fields, O'Keeffe was likely so immersed in the creative flow of her work that she did not exert an extraordinary amount of effort in the tedious task of tracking down her missing paintings. Moreover, she, like many artists, was distrusting of the governmental establishment and law enforcement's ability to recoup lost items. Art theft was then, as it is now, rampant, and law enforcement interest typically minimal. In an era which was fond of finding red socialists under every counter-culture bush, it would not be unusual for an out-of-the-box artist to avoid unnecessary law enforcement attention. And there was her husband's ill health and then death to contend with. Still, regardless of the understandability of the reasons, O’Keeffe did little to spread the word that Cliffs was missing, and apparently nothing in regards to the other two small pieces.

There was no sign of the paintings for decades. Finally, in 1972, O'Keeffe's assistant Doris Bry noticed the advent of the Art Dealers Association of America’s stolen painting registry. O'Keeffe authorized Bry to list the three paintings. In 1975 all three paintings appeared at a gallery in Manhattan, on consignment from another gallery which apparently traced its ownership back to Barry Snyder's Princeton Gallery of Fine Art. O'Keeffe contacted Snyder and demanded the return of the paintings. He refused, and O'Keeffe filed suit. Snyder promptly turned around and brought into the suit the man from whom he had purchased the paintings for $35,000, Ulrich Frank.

Snyder and Frank presented a remarkably different story. According to Frank, his father, since deceased, was related by marriage to Stieglitz, and had obtained the paintings from him – whether by gift, loan, or purchase was unknown – as early as 1941, long before the date on which O'Keeffe says they went missing. Frank's father had at first loaned him the paintings, and then given them to him outright in 1965. In 1968 he exhibited the works at a community art show in Trenton, New Jersey, then returned them to his home. He subsequently sold the works to Snyder's gallery in Princeton, New Jersey, and Snyder apparently placed them on a consignment agreement with a Manhattan gallery.

Had the case gone to trial, a tryer-of-fact – usually the jury, although the parties in a civil lawsuit can choose to waive the jury and try their case to a judge – would have had to choose between these two sets of facts and determine which was the truth. The jury would have listened to the testimony from both sides, hearing both their recollections, and looked at any documents like receipts, listings of works from the gallery show that O'Keeffe recalled, and so on. They would have assessed the reliability of the witnesses' memories and likelihood that the parties might have been confused in their recollections of what happened so long ago. And they would have assessed who had a motive to lie, and whose story had the ring of truth to it. Ultimately, they would have assessed which story was the more believable, and declared that to be the truth.

But O'Keeffe's lawsuit did not go to a jury. Instead, both sides filed a Motion for Summary Judgment. When someone files a Motion for Summary Judgment, they are in effect saying to the court, "even if you accept the other side's facts as true, I'm entitled by law to win this case." Civil lawsuits frequently get decided by courts on motions for summary judgment rather than at trial when the parties are in agreement about the facts and the only question is whether a particular rule of law applies. For example, a factory owner and an environmental group might both agree that the factory is discharging a certain kind and amount of pollution from a pipe, but disagree as to whether that pollution violates the terms of a vaguely-worded federal environmental regulation.

In O'Keeffe's case, O'Keeffe moved for Summary Judgment saying that no matter where Snyder got the paintings from, they were never removed from Stieglitz's gallery with her permission, and therefore she was entitled to have them returned to her. Snyder moved for Summary Judgment, saying that even if the paintings had been stolen by someone up the chain of ownership, such as Frank's parents, that he now owned them due to a principle of law called "adverse possession," and that furthermore, O’Keeffe was banned from bringing the suit because under the statute of limitations – the laws that say civil or criminal cases must be brought within some specific period of time or they are waived forever – her right of any claim had expired.

Time Bars

O'Keeffe's lawsuit was filed on some old-fashioned legal principles called "replevin," which is an action to recover personal property which has been unlawfully taken by another, and "trover," which is an action to recover personal property which has been unlawfully "converted" by another.

"Conversion" happens when a person legally has possession of something for some lawful purpose – like a car repair shop has possession of your car for purposes of fixing it – but then acts as if the item actually belongs to them – like when that car repair shop then sells your car to someone else. But with a car, conversion is easy to prove, because to sell a car you need to transfer a governmentally-issued title and then the new owner needs to register the car with state government motor vehicle offices. With a painting which has been left in a gallery, subsequent owners have nowhere to look to see if the gallery legally has the right to sell the painting – unless, of course, the painting is registered with Fine Art Registry™ (FAR®).

Learn about the patented Fine Art Registry
system of uniquely tagging and registering
art and collectibles here.

Each state has different laws setting the time within which lawsuits must be brought for different kinds of claims. In O'Keeffe's case, one of the first things the court had to do was decide which state's statute of limitation laws were going to apply. The paintings were allegedly stolen from a gallery in Manhattan, and when found, were physically located in another gallery in Manhattan. O'Keeffe lived in New Mexico, and the entity which claimed to presently own the paintings, Snyder's gallery, was in Princeton, New Jersey. O'Keeffe filed the suit in New Jersey, though she might well have filed in New York, or in a federal court rather than a state court. But that doesn’t mean that only New Jersey law was in effect. If someone brings a lawsuit against an estate in Massachusetts, for example, and that estate includes a summer home in Maine, the real estate laws, and possibly the estate laws, of Maine will apply to issues regarding the disposition of the summer house.

Here, however, the New Jersey court did apply New Jersey law after considering other options, and applied a six-year statute of limitations for trover and conversion suits. The trial court ruled in favor of Snyder and Franks, holding that O'Keeffe was barred from bringing suit for the return of the paintings after more than thirty years had elapsed since their disappearance. Snyder was free to keep, and sell, the paintings.

But that answer is really unsatisfactory, both from a legal point of view and from O'Keeffe's point of view. Until 1975 when she learned of the paintings' whereabouts, whom could she have sued? How can the statute of limitations run out when there isn't anyone identified who can be sued for something? And since art can be easily transported and hidden for the few years necessary to let the statute of limitations run, doesn’t this ruling only serve to encourage art theft?

O'Keeffe filed an appeal.

Adverse Possession

The Appellate Division concluded that the two different stories submitted by the parties in their affidavits supported a legal finding that the paintings had been stolen. They were able to conclude this as a matter of law because Ulrich Franks was unclear about how the paintings were originally conveyed from the American Place gallery to his father. Although Franks alleged a family connection with Stieglitz, he provided no supportable information regarding how the paintings were originally acquired. Were they a gift? A purchase? A loan? No receipts, letters, bills of sale, or anything else were provided.

Since O'Keeffe said they were stolen from her, and Snyder could not provide documentation to the contrary, the appeals court concluded that the works were stolen.

Once something is stolen, as a general rule no subsequent possessor can claim to be the true lawful owner of it – but this is not as clear a legal principle as you might think. If it were, then all the thousands of pounds of gold in European museums, churches, and government bank accounts would have to be returned to the native South American tribal villages from which they were taken – and that's not bound to happen anytime soon. And though this New World Gold issue might be highly politically charged, countless other instances of stolen property have more complicated and subtle interests involved. If, for example, a court were to include that some tract of land in New York State had in fact been unlawfully stolen from the Native Americans three hundred years ago, would it still be fair today to remove someone who lives there with their kids, perhaps on a family farm they’ve had for generations, when they bought the property wholly unaware that it had, in centuries past, been acquired illegally?

The legal principle of adverse possession tries to balance fairness to the original owner of something with fairness to someone who has legitimately believed and acted like the thing belongs to them instead. If the new owner has, for a long period of time (usually 21 years) possessed an item – or a parcel of land – in a manner which has been "hostile [meaning kicking out or fending off others], actual, visible, exclusive, and continuous," then the new owner is entitled to claim actual full legal ownership. Adverse possession is almost exclusively applied to real estate, covering a situation where, perhaps due to a mistake in a deed description, I've been living on a few acres for forty years, certain that it's my land, and then someone shows up at my door and says he is the true owner. If I can show that I've got a deed to the property that I had reason to believe was valid, that I've called the place my own, thrown off trespassers and door-to-door salesmen, and paid the property taxes for more than 21 years, then the place is legally mine.

For those who would say that this is unfair to the original true owner, the law would respond that the true owner had 21 years in which to take action, and if they weren't carefully stewarding their property for more than 21 years, then they have effectively waived their right to claim it. This point is extremely important for art owners, as well as anyone with legal interests in just about anything – you can't just let your interest lapse without taking an active role in protecting it, or the law may well decide you have waived some or all of your ownership interests.

With art, however, the issue of adverse possession is decidedly more difficult than with real estate. If you have had a painting hanging on your family home's walls for over 40 years, as the Franks claimed they did in the O'Keeffe case, how do you prove that your possession of the painting was "hostile, actual, visible, exclusive, and continuous"? In this case, the New Jersey appeals court ruled that Snyder and Franks could have overcome the fact that the paintings were stolen by proving that they had acquired true ownership through adverse possession. However, they ruled that in this case, Snyder was unsuccessful in proving each of these elements, and therefore, O'Keeffe still had her true ownership rights to the pieces – or at least to two of the three, since in yet another twist to the convoluted facts of the case, there was evidence that she had actually sold one of the works, Seaweed, to a friend in a barter for a string of amber beads, just prior to its disappearance.

This case also provides an ironic lesson in internet research for the unwary – there are numerous commentaries out there which state that the Appellate Division ruling that O'Keeffe could get two of her paintings back is the end of the case. I suspect what might have happened is that some journal articles written in 1979 shortly after the appeals decision was issued got loaded into some internet archive websites, and then other commentators or art researchers unfamiliar with legal research picked up on those and thought that was indeed the end of the story. But Snyder and Frank had been encouraged by the first court's decision, and were convinced that the Appellate Division court ruling was wrong. And with the kind of money on the table that a Georgia O'Keeffe painting was capable of generating at sale by 1980, the matter was not one to let go of lightly.

Snyder and Frank appealed.

The Discovery Rule

It should not surprise anyone who has ever been in the same room with two or more lawyers, that not all judges agree on what the law or result should be in every single case. State and federal appeals courts and supreme courts usually assign a panel of three to nine judges to hear each case. Sometimes the court's decision is unanimous; other times there is a majority opinion – which is the official legal ruling – and minority or dissenting opinions. In O'Keeffe's Appellate Division case, there was one dissenting judge, who said that the legal theory of adverse possession should not be applied to the case, but rather, that the court should have revisited the question of the statute of limitations, applying something called the "discovery rule."

The discovery rule says that a statute of limitations does not begin to run until the opportunity for a legal cause of action arises. The discovery rule pops up frequently in medical malpractice cases – a person might not discover, for example, that a surgeon left a sponge in their belly until more than six years after the initial surgery, and thus not have known that they had a suit to bring until after the statute of limitations expired. The discovery rule also often arises in "toxic tort" and environmental suits, where the harm from an activity – say, dumping toxic waste into the ground, where it eventually seeps into a well, is consumed by a couple for years, and then results in a birth defect to their first born child – is not capable of being discovered until many years after the harmful event. In this case, the dissenting Appellate Division judge said that the statute of limitations should not have started running against O'Keeffe until she discovered who unlawfully possessed the paintings, and thus had someone she could sue.

It was this dissenting opinion that attracted the New Jersey Supreme Court to take a decisive interest in the case. The State Supreme Court, too, wound up with a divided opinion – with the majority decision issued, interestingly enough, by a judge named J. Pollock (though apparently of no relation to the flamboyant artist of similar moniker).

Judge Pollock noted that it had been improper for the lower courts to adopt one of the two stories offered by the parties as the truth. He said that there was an underlying, fundamental disagreement on some basic facts: Were the paintings stolen? Were they sold, lent, consigned, or given to the Franks by Stieglitz or anyone else? Because these fundamental questions would have to be answered by a jury, or a judge in a jury-waived trial, Judge Pollock concluded that "On the limited record before us, we can not determine now who has title to the paintings," and said the whole matter must be sent back to the original court for a trial.

But before he did so, he took the opportunity to "aid the trial court and the parties" by resolving questions of law that were likely to arise at trial. The first of these is what happens to the legal ownership of the painting if the facts do wind up proving that the paintings were stolen. Judge Pollock put this to rest succinctly, stating, that, "If the paintings were stolen, the thief acquired no title and could not transfer good title to others regardless of their good faith and ignorance of the theft."

The majority opinion of the New Jersey Supreme Court then went on to a lengthy discussion of adverse possession law, and concluded that it is really inappropriate to apply the principle of adverse possession to a painting, because it can so easily be transported and, even if hanging in plain sight on a person's residence walls, is unlikely to be seen by the true owner even if they live in the same town. Instead, Judge Pollock wrote, the appropriate rule of law to apply in a case for replevin of a painting is the discovery rule. Under that rule, the statute of limitations started running against the original owner – in this case O'Keeffe – at the time she first knew, "or reasonably should have known through the exercise of due diligence," the identity of the possessor of the paintings. Under the discovery rule, the court said, "if an artist diligently seeks the recovery of a lost or stolen painting, but cannot find it or discover the identity of the possessor, the statute of limitations will not begin to run. The rule permits an artist who uses reasonable efforts to report, investigate, and recover a painting to preserve the rights of title and possession."

Due Diligence: Register Your Paintings

Judge Pollock directed the trial court to consider: "(1) whether O'Keeffe used due diligence to recover the paintings at the time of the alleged theft and thereafter; (2) whether at the time of the alleged theft there was an effective method, other than talking to her colleagues, for O'Keeffe to alert the art world; and (3) whether registering paintings with the Art Dealers Association of America, Inc., or any other organization would put a reasonably prudent purchaser of art on constructive notice that someone other than the possessor was the true owner."

The judge was convinced that a registry of artworks would, in the future, resolve issues like the ones facing the courts in O'Keeffe's case. Courts rarely take the time to delve into likely solutions for future problems, as they tend to see those questions of public policy as best left in the hands of the elected legislature, and their own hands are kept full in any event with overburdened court dockets. But in this case, Judge Pollock felt so strongly about the problem presented by O’Keeffe’s situation that he commented on this potential solution at length:

"The limited record before us provides a brief glimpse into the arcane world of sales of art, where paintings worth vast sums of money sometimes are bought without inquiry about their provenance. There does not appear to be a reasonably available method for an owner of art to record the ownership or theft of paintings. Similarly, there are no reasonable means readily available to a purchaser to ascertain the provenance of a painting. It may be time for the art world to establish a means by which a good faith purchaser may reasonably obtain the provenance of a painting. An efficient registry of original works of art might better serve the interests of artists, owners of art, and bona fide purchasers than the law of adverse possession with all its uncertainties. ....Although we cannot mandate the initiation of a registration system, we can develop a rule for the commencement and running of the statute of limitations that is more responsive to the needs of the art world than the doctrine of adverse possession.... The focus of the inquiry will no longer be whether the possessor has met the tests of adverse possession, but whether the owner has acted with due diligence in pursuing his or her personal property."

Judge Pollock reversed the Appellate Division's decision for Georgia O'Keeffe, and sent the matter back to the original court for a trial.

What Happened?

Georgia O'Keeffe died in 1986, six years after Judge Pollock remanded her case from the New Jersey Supreme Court back to the district court for trial. As of this writing, I've been unable to determine whether a trial ever occurred, or what happened to the three paintings which three New Jersey courts wrangled with and wrote new law for.

Georgia O'Keeffe painted thousands upon thousands of works in her artistic life. The Georgia O'Keeffe Museum alone houses 3,000 works in its permanent collection. Many of these works feature the cliffs of New Mexico in passionate shades of rose and amber, and although I've located one called Cliffs Beyond Abiquiu, painted in 1943, one called Red and Yellow Cliffs painted in 1940, and another called The Cliff Chimneys painted in 1938, I've so far located none called simply, Cliffs. A painting called Seaweed, 1927, resides at the Cantor Center at Stanford University. Another, Pink Shell with Seaweed, 1937, is at the San Diego Museum of Art. And although O'Keeffe painted many fragments of things, I have thus far located no painting of hers with the actual title of Fragments.

Had these paintings been listed in a "reasonably available" registry such as that suggested by Judge Pollock – and now in existence with the Fine Art Registry patented system of tagging and registering art and collectibles before they go missing, are lost, stolen, etc. – all of us would be able to locate them and learn whatever happened to the purloined paintings of Princeton. The saga of both O'Keeffe's attempt to reclaim these works when she had let their loss go unreported for so long, as well as Snyder and Frank’s attempts to prove lawful ownership, where neither one had documented, recorded proof of their transactions, stands as an eloquent example of why the type of registration offered by Fine Art Registry and presaged by Judge Pollock provides unprecedented legal protection for artists, art owners, and subsequent art owners on down the line which creates unquestionable provenance.

Meanwhile, as to the unregistered O'Keeffe paintings that have now vanished from our collective cultural sight, we will continue to exercise due diligence both by continuing on our research as to what happened to these paintings – and hoping that a knowledgeable Fine Art Registry reader might know and enlighten us.

Learn about the patented Fine Art Registry
system of uniquely tagging and registering
art and collectibles here.

— by Cindy Hill, Esq.  |  August 24, 2007  |  Print Version - PDF (708 Kb)

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