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Center for Art Law Case Law Updates

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

Silver v. Gagosian Gallery, Inc., No. 652090/2018 (N.Y. Sup. Ct. filed Apr. 12, 2019). In April 2018, Hollywood Producer Joel Silver sued Gagosian, alleging that the gallery failed to deliver a Jeff Koons sculpture, Balloon Venus Hohlen Fels, which Silver purchased for $8 million in 2014 (https://news.artnet.com/art-world/gagosian-sued-over-koons-sculpture-1276028?utm_source=Center%20for%20Art%20Law%20General%20List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8). He sought the return of the $3.2 million he had paid to date, plus interest and fees. In June, the producer dropped his lawsuit after it was revealed that billionaire art collector Ron Perelman - who had previously sued the gallery in 2014 over artwork transactions valued at $45 million - was secretly paying Silver's legal fees (https://news.artnet.com/art-world/joel-silver-drops-gagosian-jeff-koons-lawsuit-1566214?utm_content=from_artnetnews&utm_source=Center%20for%20Art%20Law%20General%20List&utm_medium=email&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8). Gagosian and Silver reportedly reached a settlement in which Silver agreed to move forward with the purchase.

Ciccone v. Gotta Have It! Collectibles, Inc., 2019 Slip Op. 04333 (N.Y. App. Div. June 4, 2019). Last year, Madonna filed for an injunction to prevent Gotta Have It! Collectibles from holding a sale of her personal belongings, which were consigned to the auction house by Madonna's ex-art advisor, Darlene Lutz. While a temporary injunction was granted in July 2017 (https://news.artnet.com/art-world/judge-halts-planned-madonna-auction-1027277?utm_source=Center%20for%20Art%20Law%20General%20List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8), the Manhattan Supreme Court reversed in April 2018 (https://news.artnet.com/art-world/madonna-personal-items-auction-1272692?utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8), lifting the injunction and dismissing the case after finding that Madonna's claims were time-barred due to the passing of the three-year statute of limitations. On June 4th (https://news.artnet.com/art-world/madonna-loses-appeal-art-advisor-1565125?utm_content=from_artnetnews&utm_source=Center%20for%20Art%20Law%20General%20List&utm_medium=email&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8), the Appellate Division affirmed the decision (http://nycourts.gov/reporter/3dseries/2019/2019_04333.htm?utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8). The sale of the contested items is scheduled to begin on July 17, 2019.

Shope v. Frida Kahlo Corporation, No. 1:19-cv-01614 (D. Colo. filed June 5, 2019). On May 27th, a third controversy arose surrounding the Frida Kahlo Corporation's (FKC) assertion of its trademark rights to the artist's name and likeness. FKC submitted a "notice of intellectual property infringement" to online arts and crafts retailer Etsy, against the work of folk artist Nina Shope, who creates dolls using the likeness and name of Kahlo. The artwork listings reported by FKC were removed by Etsy, though many more of Shope's Frida Kahlo dolls remain available for purchase. In response, Shope filed suit in the District of Colorado against FKC on June 5th seeking a declaratory injunction of non-infringement (https://artlawandmore.com/2019/06/10/artist-takes-on-frida-kahlo-corporation-in-copyright-spat/?utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8). Shope maintains that use of Kahlo's name and likeness for creation of dolls is not an infringing use.

Lam v. Mamacha LLC et al, Index No. 653320/2019 (N.Y. Sup. Ct. filed June 6, 2019). On June 6th, Dallas-based artist Dan Lam sued New York gallery The Hole and Mamacha Cafe for allegedly failing to pay the artist for her artworks following a 2018 exhibition. Lam claims that she has been paid only $6,000 out of a total of nearly $36,000 owed for 21 artworks. Eight of the artworks were sold, while the others were lost or damaged. The Hole claims that Mamacha is the only party in a fiscal relationship with Lam, but Lam maintains that her works were consigned with both parties and thus both are properly named as defendants in the suit (https://news.artnet.com/art-world/artist-sues-the-hole-mamacha-1567618?utm_content=from_artnetnews&utm_source=Center%20for%20Art%20Law%20General%20List&utm_medium=email&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8).

Lehmann Maupin LLC v. Yoo, 1:18-cv-11126-AJN (S.D.N.Y. June 10, 2019). Last fall, Lehmann Maupin Gallery filed suit against former employee Bona Yoo for the latter's allegedly stealing trade secrets (https://news.artnet.com/art-world/lehmann-maupin-accuses-former-employee-of-data-theft-in-lawsuit-1443886?utm_source=Center%20for%20Art%20Law%20General%20List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8). The gallery accused Yoo of taking confidential client information when she left to become a Sales Director at Lévy Gorvy. In response, Yoo countersued on the basis that the gallery's suit was filed out of spite and it did not have exclusive rights to the data. On June 10, 2019, the District Court for the Southern District of New York dismissed the case with prejudice (http://www.artnews.com/2019/06/12/lehmann-maupin-bona-yoo-lawsuit-dismissed/?mc_cid=706f521ea9&mc_eid=8a2eda70d8). No comment has been made as to whether the parties reached an out-of-court settlement.

Philipp v. Fed. Republic of Germany, 2019 U.S. App. LEXIS 18188 (D.C. Cir. filed June 18, 2019). Last year, the Court of Appeals for the D.C. Circuit ruled that the heirs of the art dealers who sold the Guelph Treasure may pursue their claims against the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz in U.S. Federal Court (https://law.justia.com/cases/federal/appellate-courts/cadc/17-7064/17-7064-2018-07-10.html?utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625). On June 18th, the court denied the defendants' petition for rehearing en banc (https://law.justia.com/cases/federal/appellate-courts/cadc/17-7064/17-7064-2019-06-18.html?utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625). The claims against Germany and the SPK were filed under the Foreign Sovereign Immunities Act, on the basis that the forced sales were in violation of international law. This decision confirms last year's ruling that claimants do not have to exhaust all remedies abroad before pursuing their claims against sovereign defendants in U.S. courts (https://blog.sullivanlaw.com/artlawreport/guelph-treasure-claims-to-go-forward?utm_campaign=Art&utm_content=94435043&utm_medium=social&utm_source=linkedin&hss_channel=lis-cbH6xaIu5y&utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8).

Moi v. Chihuly Studio, Inc., 2019 U.S. Dist. LEXIS 103576 (W.D. Wash. June 20, 2019). In May 2017, Michael Moi brought suit against Dale Chihuly, claiming that Moi co-authored certain artworks and was thus owed over $20 million dollars from the sales. On June 20th, Chihuly's motion for summary judgment was granted, thereby dismissing all claims brought by Moi (https://news.artnet.com/art-world/dale-chihuly-lawsuit-dismissed-1582921?utm_source=Center%20for%20Art%20Law%20General%20List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8). The District Court for the Western District of Washington held that Moi could not prove joint authorship, independent copyrightable interest, nor did he have a claim under promissory estoppel, and, finally, Moi's claims were time barred by the three-year statute of limitations for copyright claims.

Accent Delight Int'l Ltd. v. Sotheby's, 2019 U.S. Dist. LEXIS 105864 (S.D.N.Y. June 25, 2019). In October 2018, Russian billionaire and art collector Dmitry Rybolovlev brought suit against Sotheby's, alleging that the auction house materially assisted art advisor Yves Bouvier in defrauding Rybolovlev of approximately $1 billion by overcharging the collector on 38 works of art (https://www.theartnewspaper.com/news/russian-billionaire-rybolovlev-sues-sotheby-s-for-usd380m-in-fraud-damages?utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8). Sotheby's was involved in the sales of 14 of the artworks in question, for which Rybolovlev seeks $380 million in damages. Sotheby's filed a motion to dismiss the New York lawsuit and to keep certain records sealed. On June 25th, the district court for the Southern District of New York largely denied the motion to dismiss and denied in part and granted in part the motion to seal, meaning that this suit can proceed despite the fact that the parties also have ongoing litigations internationally (https://www.theartnewspaper.com/news/sotheby-s-denied-dismissal-of-rybolovlev-s-usd380m-lawsuit-by-new-york-judge?utm_source=The+Art+Newspaper+Newsletters&utm_campaign=943935b930-EMAIL_CAMPAIGN_2019_06_26_02_56&utm_medium=email&utm_term=0_c459f924d0-943935b930-61254873&utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8).

Zuckerman v. Metropolitan Museum of Art, 2019 U.S. App. LEXIS 19057 (2d Cir. June 26, 2019). The Metropolitan Museum of Art (the Met) has prevailed against the heirs of German Jewish businessman Paul Leffman in its claim to the painting The Actor by Pablo Picasso. Leffman sold the painting in 1938 for $12,000, in order to fund the family's escape from fascist Italy to Switzerland after they had fled Nazi Germany the prior year. The painting was donated to the Met in 1952, but the family did not bring a claim to the painting until 2010. Previously, the District Court for the Southern District of New York ruled that the family failed to demonstrate that the painting was sold under duress (https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2016cv07665/463416/36/?utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625). On appeal, the Second Circuit again dismissed the case, this time on the basis that the plaintiff's claim was time barred under the equitable defense of laches (https://www.timesofisrael.com/picasso-painting-sold-by-family-escaping-the-nazis-can-remain-at-the-met/?utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8).

The Andy Warhol Foundation For The Visual Arts, Inc. v. Goldsmith et al, No.1:17-cv-02532 (S.D.N.Y. July 1, 2019). The District Court for the Southern District of Manhattan ruled on July 1st that Andy Warhol's use of Lynn Goldsmith's 1981 photograph of iconic pop singer Prince was fair use, based on a finding that Warhol's series was "transformative." The Andy Warhol Foundation's motion for declaratory judgment was granted and Goldsmith's countersuit was denied, concluding the litigation that began in 2017. The case is being appealed. Read our Case Review (https://itsartlaw.org/2018/12/05/case-review-warhol-v-goldsmith/?utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8https://itsartlaw.org/2018/12/05/case-review-warhol-v-goldsmith/?utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8).

Morgan Art Found. Ltd. v. McKenzie, No. 1:18-cv-04438-AT (S.D.N.Y. July 1, 2019). Heated legal action has surrounded the estate of Robert Indiana since the day before his death last May. As we reported, the suit was initiated by the Morgan Art Foundation, Indiana's agent for the past 20 years, against American Image Art, its founder Michael McKenzie, and Indiana's employee Jamie Thomas, alleging copyright and trademark infringement among other claims (https://us2.campaign-archive.com/?e=88512bac9d&u=78692bfa901c588ea1fe5e801&id=1828a75f39&utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&mc_eid=8a2eda70d8). American Image Art and McKenzie filed counterclaims, alleging that the Morgan failed to fully pay Indiana royalties and that it fabricated unauthorized reproductions of his famous sculptures. On July 1, 2019 the District Court for the Southern District of New York largely dismissed the counterclaims against the Morgan. Then, on July 2nd, attorneys for American Image Art and McKenzie filed to withdraw as counsel (https://www.theartnewspaper.com/news/robert-indiana-latest?fbclid=IwAR1fUZQHl_EtgBTi7bRd1nqIOMnaZJ8e7uob1Gfp34RvWJa5cT3ECEqVaKk&utm_source=Center+for+Art+Law+General+List&utm_campaign=706f521ea9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-706f521ea9-346773625&mc_cid=706f521ea9&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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