MFAH Statement: “The Marketplace at Pirna,” c. 1764, Bernardo Bellotto

May 30, 2024 | MFAH Statement: The Marketplace at Pirna, c. 1764, Bernardo Bellotto
The challenge to the Museum of Fine Arts, Houston, ownership of the painting The Marketplace at Pirna, c. 1764, by Bernardo Bellotto, has been definitively resolved in the Museum’s favor. On Wednesday, May 29, 2024, the United States Court of Appeals for the Fifth Circuit unanimously affirmed the decision of the lower court to dismiss the lawsuit filed by the heirs of Dr. Max Emden, asserting a claim to the painting. This latest ruling is the third to reject the plaintiffs’ claim in this matter.

The Museum advised the court on three occasions—first, at the time of the plaintiffs’ initial filing, October 2021; again at the time of their second, amended filing, in July 2022; and again, at the time of their appeal, in November 2023—that the MFAH had previously researched the claims’ merits and had shared the independent international provenance investigation, which demonstrated that the claims of a forced sale, or sale at less than fair market value, were not valid. No new information has come to light to alter our conclusion that the 1938 sale initiated by Dr. Emden was voluntary. 

May 6, 2022 | MFAH Statement: The Marketplace at Pirna, c. 1764, Bernardo Bellotto
On May 2, 2022, the United States District Court for the Southern District of Texas, Houston Division, granted the Museum’s motion to dismiss the lawsuit filed by the heirs of Dr. Max Emden for the MFAH painting The Marketplace at Pirna, by Bernardo Bellotto.

The Museum has received a prompt and definitive decision from the federal court on this matter. As was the case in 2006–2007, when we thoroughly researched and reviewed the claim, we found no evidence that suggests that the Bellotto had been stolen, seized, or confiscated, and we have extensive documentation that in 1938 Dr. Max Emden, a Swiss citizen and resident, initiated the voluntary sale of our painting, for which he was paid his asking price. The decision affirms our good title.

March 24, 2022 | MFAH Statement: The Marketplace at Pirna, c. 1764, Bernardo Bellotto
The Museum presented to the United States District Court for the Southern District of Texas, Houston Division, a motion to dismiss the lawsuit filed by the heirs of Max Emden regarding the MFAH painting The Marketplace at Pirna by Bernardo Bellotto in December 2021. As reaffirmed publicly in July 2021 and in this filing, the Museum’s 2007 Provenance Report demonstrated that Mr. Emden, a naturalized Swiss citizen living on his private Swiss island, in 1938 voluntarily sold his The Marketplace at Pirna painting through his longtime dealer and at his requested price to the art dealer Karl Haberstock. No new information has come to light that alters the voluntary character of the 1938 sale that Emden initiated. The Museum took the appropriate steps to seek dismissal on multiple grounds.

July 21, 2021 | MFAH Backgrounder: The Marketplace at Pirna, c. 1764, Bernardo Bellotto
The following is based on documentation identified by the Museum of Fine Arts, Houston, and provenance researcher Laurie Stein, who was recently awarded Germany’s Federal Cross of Merit for her work in restituting World War II–era confiscated artworks. Ms. Stein’s full report is available here:
Provenance Report (PDF 1 of 3)
Provenance Report (PDF 2 of 3)
Provenance Report (PDF 3 of 3)

Max Emden was a German businessman who emigrated to Switzerland prior to 1930 and took Swiss citizenship, residing with his art collection on his personal island of Brissago, in Lago Maggiore, until his death by natural causes, in 1940. It is thought that he acquired The Marketplace at Pirna between 1928 and 1930, but the prior ownership of the painting has not been fully documented.

As the archival documentary evidence establishes, in 1937 Emden began negotiations to sell three Bellottos that he owned and had with him in Switzerland, through his art dealer of choice, the Jewish gallerist Anni Caspari. Acting on Emden’s behalf, Caspari offered these three canvases to Karl Haberstock, an art dealer working on behalf of the German government. When Haberstock did not act quickly enough, Emden recalled the three pictures to Switzerland. From Switzerland, Emden had them shipped to London and then Berlin, and back to Switzerland via London, in order to show the artworks to potential buyers in those cities.

This documented activity underscores that Emden could move the paintings as he wished in order to market them for sale. Hitler’s dealer, Haberstock, became the eventual buyer. In June 1938, Emden’s full asking price—60,000 Swiss francs for the three paintings—was agreed upon and the sale to Haberstock finalized and documented. The purchase funds were transferred to Emden’s bank account, as demonstrated by the historical documentation. The three Bellottos were sent to Berlin.

After the fall of Berlin, in May 1945, the three Emden Bellottos were gathered at the Munich Central Collecting point. The two that were removed from the Reichskanzlei in Berlin were transferred to the German state in Bonn. Considered to have been acquired as the result of a voluntary—not a forced—sale, they remained in the German state’s possession until 2019. The third Bellotto, Pirna, which is now thought to be the Museum’s Bellotto, was restituted by the Allies to the Dutch Government in 1946. It was in turn restituted by the Dutch government, through official channels, to Hugo Moser, an art dealer operating in Berlin, Amsterdam, and New York. Moser sold it to Samuel Kress of New York, who in turn gifted it in 1961 to the Museum, where it has been on public display over the years. 

Despite having opportunities to do so, Emden’s son and heir, Hans-Erich Emden, did not make a claim for the Bellottos, even though he did successfully pursue restitution for other family assets left behind in Germany when his father emigrated to Switzerland, before 1930. In 2007 and again in 2011, the Emden heirs contacted the Museum in an attempt to obtain possession of the work. The independent international investigation into the history of the Museum’s Bellotto, commissioned from Laurie Stein, focused on the specific details of Emden’s 1938 sale of the Bellotto paintings. The evidence established that the 1938 sale of all three Bellottos to the German government was voluntary. The results and source documentation were shared with the modern-day Emden heirs. Following these results, on neither occasion did the family pursue a claim.

This voluntary-sale determination was reached after a thorough review of the historical context and documentation, including multiple factors: Emden, as a pre-World War II Swiss citizen and resident, whose Bellotto paintings were with him in his Swiss villa, initiated the transaction through a dealer of his choice; was able to ship the paintings throughout Europe until he found a buyer willing to agree to his price; and he received full payment of his asking price in his own currency, Swiss francs. Consistent with this determination, the Emden heirs did not themselves seek restitution of or compensation for the Bellottos from the German government after the war, despite pursuing claims for other property that was in Germany. Nor did the family further pursue a claim with the Museum after the findings and research was shared in 2007 and again in 2011.

Recently, the modern-day Emden heirs have pressed their case with the German government. In 2019, Germany awarded the two Emden Bellottos in its possession to the Emden family. The Museum acknowledges the decision of the German government but maintains that this recent decision does not alter the facts or voluntary nature of Emden’s 1938 sale of the Bellottos.

The Museum acknowledges that questions have persisted, in the official Bellotto catalogue raisonné, as well as in various publications, regarding the independent histories of the many versions of this particular composition, since Bellotto’s work was prolific and his compositions often nearly identical. The research conducted by the MMF, and subsequently shared with the Museum, enhances the provenance research previously conducted by the Museum, by showing a link between the Museum’s Bellotto and the 18th-century collector Gottfried Winkler, and in turn Dr. Emden, of Switzerland.