Buying Government Art? Get all the Records.

Lights Across the Lake by Maxim H. Lubovsky

PHOTO CREDIT GSA\Sean Flanagan

In a recent art law decision from a New York district court, Philip Ellis Foster’s claim of ownership of Lights Across the Lake by Maxim H. Lubovsky over the federal government was rejected. see Philip Ellis Foster v. United States, No. 1:22-cv-04496 (JLR) (S.D.N.Y. Mar. 21, 2025) at 15. When Foster tried to sell the painting , it was taken by the GSA, which claimed it was still government property because it was commissioned by the WPA in 1938. Id. at *1. The Court gave a lengthy discussion on the law governing property of the Federal government. Id. at *10. The United States government can only relinquish property by explicit acts. Id. The Court referenced a few decisions that upheld the Federal government asserting its property rights after decades of inaction. For instance, in Int'l Aircraft Recovery, L.L.C. v. Unidentified, Wrecked & Abandoned Aircraft, the court held that the government retained title to a Navy torpedo bomber that someone had tried to salvage after it had crashed about fifty years earlier. Id. at *11. In United States v. Steinmetz, the Court held that a bell that was submerged for seventy years until a British diver recovered it was still the property of the United States. Id. at *11.

In Foster’s case, it was undisputed that the federal government owned the painting when it was made. Id. at *12. It was also undisputed that a federal agency authorized the sale of surplus materials after World War II was over. Id. However, the Court was not convinced that the completed and framed painting Foster bought qualified as “surplus material.” Id. The Court noted that surplus property was not sold to private purchasers without first being offered to other federal agencies and tax-supported entities. The Court credited an expert who testified he was not aware of any document memorializing a sale of any WPA artwork by the Government. Id. at *17. The Court discounted Foster’s reliance on various correspondence that implied finished paintings were surplus property and second-hand accounts that the WPA sold finished paintings. These accounts were given minimal weight because they were second-hand, lacked sufficient particularity, or lacked indicia of reliability to support a finding, by a preponderance of the evidence, that the Government undertook authorized sales of completed WPA paintings to members of the public. Id. at *21. The Court also declined to draw an adverse inference against the government regarding the lack of any written records for the disputed painting because there was no evidence that the records existed and were destroyed, or that the government had a specific duty to keep them decades after the painting was finished. Id. at *25–26.

Foster was certainly a sympathetic plaintiff. He made what he likely believed to be a legitimate purchase from a dealer who also likely believed they made a legitimate purchase when they acquired the painting. Sympathy was no match for the massive amount of precedent stating the government owns property until it explicitly says otherwise. I found it noteworthy how much weight the Court gave to the lack of evidence of a record of a sale of a painting nearly ninety years ago. It would seem to be a matter of common sense that not all sales were properly recorded in 1938. It is also likely that even some of the sales that were recorded were lost. While Foster may be able to get his money back from the dealer he bought the painting from, it will be increasingly difficult for every previous buyer to recover their investment due to the substantial amount of time that has passed since it left the government’s possession.

I was also surprised with how quickly the Court dismissed the notion of laches as a defense to the government’s claim on the painting. It was incorrect for the Court to quote United States v. California for the proposition that “the United States government cannot extinguish its property interests through negligence, laches, acquiescence, or a failure to act” (Id. at 25), without acknowledging that the Second Circuit (by which it is bound to follow) has held as recently as 2005 that laches can apply to claims of the federal government. See Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266, 278–79 (2d Cir. 2005). In Cayuga Indian Nation of N.Y., the Second Circuit explains that it follows the Seventh Circuit's reasoning in United States v. Admin. Enters., Inc., 46 F.3d 670 (7th Cir. 1995), which stated that laches can apply to the federal government in three situations: first, "that only the most egregious instances of laches can be used to abate a government suit"; second, "to confine the doctrine to suits against the government in which ... there is no statute of limitations"; and third, "to draw a line between government suits in which the government is seeking to enforce either on its own behalf or that of private parties what are in the nature of private rights, and government suits to enforce sovereign rights, and to allow laches as a defense in the former class of cases but not the latter." Id. at 278 (quoting Admin. Enters., 46 F.3d at 673). In Cayuga Indian Nation of N.Y., the Court found that laches applied to the federal government's claim because the delay represented an egregious instance, as the event that caused the suit happened 200 years ago. See Cayuga Indian Nation of N.Y., 413 F.3d at 279.

While the ownership of Foster’s painting arose from an incident less than 200 years ago, the government’s inaction still spanned an arguably egregious amount of time. Clearly, buyers and attorneys advising buyers need to be extremely cautious when considering purchasing artwork once owned by the government. The explicit act which caused the government to relinquish ownership must be clear and unambiguous. Otherwise, they risk losing their investment and can only hope for an equitable remedy.