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Center for Art Law Case Updates

The following case selection first appeared in this week's Center for Art Law newsletter:

Khochinsky v. Republic of Poland, No. 1:18-cv-01532 (D.D.C. filed June 27, 2018). Alexander Khochinsky, the son of a Polish Jew who was forced to flee her land in Przemysl, Poland before the Nazi invasion of the country, has filed a complaint in the U.S. Supreme Court against the Republic of Poland for its efforts to extradite him in 2015 on criminal charges in Poland. In 2010, Khockinsky became aware of the existence of a painting, "Girl with Dove", by Antoine Pesne, that was in his family's possession before the Nazi invasion. The painting appeared on display in a museum in Poznan, Poland, and Khochinsky began efforts to seek restitution of the painting. In 2014, the Polish government filed criminal charges against Khochinsky, claiming that he came into possession of the painting "despite being aware of the fact that the painting originated from a prohibited act--looting of property in 1943 by the then authorities of the German Third Reich." Khochinsky was arrested in 2015 in the United States for a brief period of time but was soon cleared of charges by the Supreme Court.

According to attorney Matthew O'Donnell, this case is no doubt the product of the current Polish government's complicated relationship with the history and memory of the Holocaust (Shoah). The complaint can be found at https://lootedart.com/web_images/pdf2018/Khochinsky%20v.%20Poland(B2298407).pdf?mc_cid=cfa78d44f8&mc_eid=8a2eda70d8.

Zuckerman/Leffman v. Metropolitan Museum of Art, No. 18-0634-c (2nd Cir. filed June 1, 2018). This brief amicus curiae pertains to the subject of "Flight Art" in the case of Zuckerman v. the Metropolitan Museum of Art, in which the court ruled in favor of the Museum's rights to ownership and to display "The Actor", by Pablo Picasso. Paul Leffman, the former owner of the painting in question, was forced to sell the piece to the Nazis at an exceedingly low price in order to escape persecution during the war. This brief is intended to demonstrate to the court the historical nuances of "flight art", such as "The Actor", and better inform its members to make future decisions taking into consideration these nuances. This brief is supported by a number of foundations' experts in the field of Nazi-looted art, including The Simon Wiesenthal Center, Lucille A. Roussin, and Ambassador Stuart E. Eizenstat. The brief can be found at https://docs.wixstatic.com/ugd/4843f4_7e3fafcedffe47d1a0534a2035f700ce.pdf?mc_cid=cfa78d44f8&mc_eid=8a2eda70d8.

The state is petitioning for the lower court to re-hear the case. The museum is claiming to have the petition rejected because the sale was not made under duress.

Close. v. Frieze Sotheby's, Inc., 1:18-cv-05134 (N.Y.S.D. June 8, 2018). A recent decision was made by the 9th Circuit U.S. Court of Appeals in the case brought by artist Chuck Close against Sotheby's Inc. concerning the California Resale Royalties Act (CRRA). Under the CRRA, artists were entitled to 5% of the proceeds of any resales of their works. The plaintiff in this case was seeking resale royalties covered under the CRRA since the statue's effective date of January 1, 1977. The court ruled in two parts; dismissing the plaintiff's claims covered by the 1976 Copyright Act (i.e. those that come after the effective date of this act, January 1, 1978) and reversing the dismissal of claims covered by the 1909 Copyright Act concerning sales that occurred between the CRRA's effective date of January 1, 1977, and that of the 1976 Act. This decision will effectively put an end to the last remaining remnants of droit de suite in American legal code concerning artists rights to profits made from the sale and re-sale of their works.

Davidson v. United States, No. 13-942C, 2018 U.S. Claims Lexis 801 (Fed. Cl. June 29, 2018). In a case involving the USPS putting a Getty Image photo of artist Robert S. Davidson's Las Vegas version of the Statue of Liberty on approximately 3.5 billion stamps (https://gizmodo.com/usps-ordered-to-pay-3-5-million-after-putting-artists-1827305357?mc_cid=cfa78d44f8&mc_eid=8a2eda70d8), Judge Bruggink of the Court of Federal Claims ruled that plaintiff's work was "sufficiently original to be afforded copyright protection" and the USPS's use of the image was not authorized under federal copyright law. The court ordered the Postal Service to pay the artist $3.5 million, plus interest.

Brammer v. Violent Hues Prods., LLC, No. 1-17-cv-01009, 2018 WL 2921089 (E.D. Va. June 11, 2018). In a major blow to photographers, a federal judge in Virginia ruled that a commercial website's re-use of another's photograph found on the internet is fair use and is not subject to copyright infringement (https://www.scribd.com/document/383050982/Brammer-v-Violent-Hues-Productions?mc_cid=cfa78d44f8&mc_eid=8a2eda70d8). The case revolves around plaintiff/photographer Russell Brammer's time-lapse photograph of the Adams-Morgan area of Washington, D.C., which was copyrighted by plaintiff. Defendant Violent Hues found the photo online and used it in an informational section of a website created for its Northern Virginia Film Festival. The judge granted the defendant's motion for summary judgment in a decision that is being challenged by many in the copyright community. https://petapixel.com/2018/07/02/court-rules-copying-photos-found-on-internet-is-fair-use/?mc_cid=cfa78d44f8&mc_eid=8a2eda70d8.

The Center for Art Law strives to create a coherent community for all those interested in law and the arts. Positioned as a centralized resource for art and cultural heritage law, it serves as a portal to connect artists and students, academics and legal practitioners, collectors and dealers, government officials and others in the field. In addition to the weekly newsletter (http://cardozo.us2.list-manage.com/subscribe?u=78692bfa901c588ea1fe5e801&id=022731d685), the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog (http://itsartlaw.com/blog/)and calendar of events (http://itsartlaw.com/events/). The Center for Art Law welcomes inquiries and announcements from firms, universities and student organizations about recent publications, pending cases, upcoming events, current research and job and externship opportunities. To contact the Center for Art Law, visit our website at: www.itsartlaw.com or write to itsartlaw@gmail.com.

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