The Heinrich Hoffmann photo archive: ‘Price vs United States:’ United States Court of Appeals, Fifth circuit, 20 November, 1995

The Heinrich Hoffmann photo archive: ‘Price vs United States:’ United States Court of Appeals, Fifth circuit, 20 November, 1995 – photographer; photo archive during Germany’s Third Reich era; Billy F. Price

David Culbert

In May 1993, Billy F. Price won a judgment of nearly eight million dollars against the United States Government, when federal district court judge Lynn N. Hughes found in favor of Price, who had tried to buy four of Adolf Hitler’s watercolors which had once belonged to the former wife of Hitler’s Youth Minister, Baldur von Schirach. As well, Price had purchased from von Schirach’s heirs the rights to the thousands of Heinrich Hoffmann photographs now in the National Archives in Washington, DC, the most important source of photographs for anyone studying the Third Reich. I described the background of the suit in my ‘The Heinrich Hoffmann Photo Archive: Price vs. United States (Final Judgment, 19 May 1995),’ HJFRT, 13 (1993), pp. 513-518. At that time I noted the inevitability of an appeal by the United States Government, and (rashly) wondered if the case might take another ten years before being resolved.

Instead, the United States Government won on appeal. Price’s suit was dismissed in Price vs United States, Docket 93-2564, United States Court of Appeals, Fifth Circuit, 20 November 1995, printed in 69 Federal Reporter, 3d Series, pp. 46-58; 520-521. Judge E. Grady Jolly held that the district court ‘did not have subject matter jurisdiction over conversion action seeking to recover photographic archives.’

Judge Jolly’s decision has an admirable clarity to it. He first notes that ‘this lawsuit is simply a claim for damages resulting from the tortious [wrongful] conversion of chattels,’ i.e. ‘items taken from Germany during the post-World War II occupation.’ He continues in equally clear language: ‘At its foundation, this case presents questions that implicate the sovereign immunity of the United States. We are guided by two well-settled principles: one, the United States is immune from suit unless it has waived its immunity and consented to suit; and two, such waivers of sovereign immunity are to be construed narrowly.’

Jolly then considers whether Price’s claim to the four watercolors seized by the United States government in 1945 falls ‘within the waiver of sovereign immunity contained in the Federal Tort [wrongful act] Claims Act’. He states that the district court does not have jurisdiction ‘if a claim arises in a foreign country…Where did the tort of conversion occur? If the conversion occurred in Germany, the district court obviously did not have jurisdiction to hear this claim.’ Jolly, citing evidence introduced by Billy Price in his first suit against the Government, concludes that the American Army did distinguish among various pieces of Hoffmann art in 1945, and the failure to return these four watercolors was based on a 1945 evaluation of their political content.

Turning to the matter of the Heinrich Hoffmann photographic archive at National Archives, Judge Jolly determines that an appeal in this instance must fall within the guidelines of the wide-ranging Trading with the Enemy Act, not the Federal Tort Claims Act. The Trading with the Enemy Act required that Price have instituted proceedings no more than two years after the Hoffmann photographs were vested by the Attorney General of the United States, which occurred on 25 June 1951. Judge Jolly concludes that Price filed his suit thirty years too late. He then adds: ‘The United States may dispose of items that were seized during the allied occupation of Germany as it sees fit; indeed, it has done so.’

Scholars fearful that a major source of visual material in the public domain was suddenly liable for ruinous permission fees can now breathe a sigh of relief. But one is well-served to look carefully at both Judge Hughes’s initial judgment in favor of Price as well as Judge Jolly’s judgment of dismissal, as both contain many illuminating details. It now seems clear that all of Heinrich Hoffmann’s photographs at National Archives may be considered as being in the public domain, which means they may be used in scholarly and popular books, articles, films and television programmes without payment of permission fees to German heirs or to Billy Price.

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