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Week in Review

By Martha Nimmer

The Case of the Missing Degas

The Degas Sculpture Project has claimed in New York federal court that a Tennessee art dealer failed to pay for several pieces of art, including a bronze sculpture, La petite Danseuse de Quatorze Ans ("The Little Dancer, Age Fourteen"), by famed French artist Edgar Degas, and a painting by Dutch abstract expressionist Willem de Kooning. Other pieces included in the sale to the art dealer were 16 "extremely rare and valuable" original oil on paper paintings by de Kooning.

The plaintiff, along with co-plaintiff Modernism Fine Arts, claim that defendant Rose Ramey Long and Rose Long Fine Art planned to sell the pieces in question to a California art collector. Long said that her client intended to display the pieces in a new museum in San Francisco. The defendant, according to the complaint, somehow ended up paying only $110,000 for the pieces, which she resold to a customer other than the one disclosed to the plaintiffs. This customer, the lawsuit states, turned out to be a "recently released from custody, twice-convicted, federal felon with a history of fraudulent conduct and no source of current income or tangible assets." Long also failed to pay the contract price for the pieces that she sold, and neglected to return them to the plaintiffs. The de Koonings were eventually sent to the plaintiffs in early June, but the rare, highly-prized bronze Degas statute remains missing.

The plaintiffs seek damages for negligence and breach of contract.

"True Threats"

The Supreme Court granted cert earlier this week in a case that promises to have long-lasting effects on the free speech rights of Americans. The case, Elonis v. United States, involves the First Amendment rights of individuals who use threatening language in online forums, such as Facebook, but whose intent is not readily apparent. The petitioner, Anthony Elonis, had been "sentenced to nearly four years in federal prison for posting online rants about killing his estranged wife, shooting up a school and slitting the throat of an FBI agent."

At trial, Elonis argued that he had never intended to go through with the threats, adding that he posted them as "rap lyrics" as a way to deal with his anger after his wife had left him. He also argued that his statements were protected by the First Amendment. A federal appeals court rejected Elonis' First Amendment claim. Earlier, at trial, the jury was instructed that Elonis "could be found guilty if an objective person could consider his posts to be threatening." Elonis' attorney argued, however, that the jury should have instead been instructed to use a subjective standard to decide whether Elonis meant the messages to be understood as threats. The reasoning behind the subjective standard, the defense argued, is the "impersonal nature" of online communication, which has the potential for an audience to misinterpret a speaker's message or intent. The federal government, in turn, argued that requiring proof of a subjective threat would, in the words of the Huffington Post, "undermine the purpose of the federal law prohibiting threats."

Under the 54 year old "true threats" doctrine, first touched on in Watts v. United States and later expounded on in Virginia v. Black, true threats of harm to another person are not protected by the First Amendment. Exactly what constitutes a "true threat," however, has grown murkier and more challenging to ascertain as online communication has become more commonplace and has supplanted face-to-face interaction. This change in communication has free speech advocates arguing for a subjective standard when juries are faced with a true threats case. The Supreme Court will hear argument in the case in the fall.


Read the amicus brief here: https://sblog.s3.amazonaws.com/wp-content/uploads/2014/04/13-983tsacTJCElonisvUSA.pdf


The U.S. Patent and Trademark Office (USPTO) announced this week that it would cancel the federal trademark of the Washington Redskins on the grounds that the team name is disparaging to Native Americans. Federal trademark law forbids the registration of marks that "may disparage" individuals or groups, or that may "bring them into contempt or disrepute." The USPTO, through the Trademark Trial and Appeal Board, first canceled the mark in 1999, but that decision was overturned in 2003 on appeal to a federal court. Despite this loss, the team is expected to appeal the current cancellation; while the appeal is being decided, the team would retain federal trademark protection over the Redskins name and mark.

The decision by the USPTO will not force the team to change its name, but adds to the growing list of organizations that have come out against the football team's moniker. Senator Maria Cantwell, a Democrat from Washington State, persuaded 49 members of Congress "to send a letter last month to the National Football League on the issue," and even interrupted a debate on the Senate floor to announce the USPTO decision. Despite mounting anger over the team's name, owner Dan Snyder has remained steadfast in his opposition to changing it, saying the name "Redskins" was chosen as a way to honor Native Americans.

Another effect of trademark cancellation, if the Redskins lose or do not pursue an appeal, is that the team will no longer be able to use federal trademark law to pursue trademark infringers who use the team name or logo without permission. Cancellation also "hinders the team's ability to block counterfeit merchandise" from being made, imported or sold in the country. This lack of federal protection could mean a loss of millions of dollars of merchandise revenue for the team and for the NFL.

All is not lost for Washington, D.C.'s football team, however. Although unlikely, Dan Snyder could come to his senses, change the team name and perhaps get back in the good graces of millions of Americans, all while avoiding a costly, protracted legal fight. As an alternative to federal trademark protection, Snyder could choose to protect the team name and logo under state law, even though this form of protection is less robust and wide-reaching than federal law. As it turns out, the team is headquartered in Virginia, not Washington, D.C.; the team may therefore be able to rely on Virginia law, and on state laws in other localities where the team does business, for protection.

One thing is certain, however: this is not the last of the Washington Redskins controversy.




The Association of Art Museum Directors has sanctioned the Delaware Museum of Art following its sale of various works of art. The museum held the sale as a way to raise money to pay off its debts following costly renovations undertaken in 2005. The Association of Art Museum Directors said that the museum's art sale "violated one of the most basic and important" tenets of a collecting institution. The American Alliance of Museums, another professional organization, also came out against the sale, and voted to withdraw the museum's accreditation.

Museums often sell works in their collections as a way to acquire other pieces. The practice of selling art as a way to pay for operations or property improvements is considered, writes The New York Times, "an ethical violation, a betrayal of a museum's role of holding art in public trust." "With this sale, the museum is treating works from its collection as disposable assets, rather than an irreplaceable cultural heritage that it holds in trust for people now and in the future," the Association of Art Museum Directors said in a statement.

In March, the museum announced that it planned to sell four works, with the goal of raising roughly $30 million, "enough to repay the balance of its $19.8 million bond debt and replenish its endowment." The works sold included "Isabella and the Pot of Basil," by William Holman Hunt. That piece brought in only $4.89 million at a Christie's auction in London on Tuesday; that figure was, sadly, markedly "below the auction house's low estimate of $8.4 million and substantially below its high estimate of $13.5 million," according to The New York Times. The museum has not indicated what other works it plans to sell.


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This page contains a single entry from the blog posted on June 20, 2014 9:36 AM.

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