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September 29, 2009

Google Fairness Hearing Adjourned

Judge Chin has adjourned the fairness hearing scheduled for October 7th. The Judge agreed with many of the Copyright Office and Department of Justice's comments, in that there are many potential positive aspects to a settlement.

Judge Chin ordered the parties to the settlement to appear on October 7th for a status conference in order "to determine how to proceed with the case as expeditiously as possible".

The link to a PDF copy of Judge Chin's order is: here.">app.bronto.com/public/?q=ulink&fn=Link&ssid=896&id=j34eotazvv4nizkodyiqhotu4msq8&id2=4flt8qlr6hbvriss53izj4efwk4g7">here.

October 18, 2009

Shepard Fairey Lied

It appears that Shepard Fairey lied, deliberately destroyed evidence of the actual image used in the Obama Hope poster, and in a cover-up, created false documents to support his fraud. He has now issed the below press release in apology. Fairey's attorneys have given notice to AP that they intend to withdraw upon his acquiring new counsel.

For Immediate Release
Contact: Jay Strell- Sunshine, Sachs & Associates,
(212) 691-2800/ (917) 362-9248 cell
strell@sunshinesachs.com

STATEMENT BY SHEPARD FAIREY ON ASSOCIATED PRESS FAIR USE CASE
OCTOBER 16, 2009

In an effort to keep everyone up to date on my legal battle to uphold the principle of fair use in
copyright laws, I wanted to notify you of a recent development in my case against The
Associated Press (AP).

On October 9, 2009, my lawyers sent a letter to the AP and to the photographer Mannie Garcia,
through their lawyers, notifying them that I intend to amend my court pleadings. Throughout the
case, there has been a question as to which Mannie Garcia photo I used as a reference to
design the HOPE image. The AP claimed it was one photo, and I claimed it was another.
The new filings state for the record that the AP is correct about which photo I used as a
reference and that I was mistaken. While I initially believed that the photo I referenced was a
different one, I discovered early on in the case that I was wrong.

In an attempt to conceal my mistake I submitted false images and deleted other images. I
sincerely apologize for my lapse in judgment and I take full responsibility for my actions which
were mine alone. I am taking every step to correct the information and I regret I did not come
forward sooner.

I am very sorry to have hurt and disappointed colleagues, friends, and family who have
supported me in this difficult case and trying time in my life.

I am also sorry because my actions may distract from what should be the real focus of my
case - the right to fair use so that all artists can create freely. Regardless of which of the two
images was used, the fair use issue should be the same.

October 19, 2009

Shepard Fairey Litigation - The AP's Response

Statement from Srinandan R. Kasi, VP and General Counsel, The Associated Press

Striking at the heart of his fair use case against the AP, Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used to make the Hope and Progress posters. Mr. Fairey has also now admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up his previous lies and omissions.

In his Feb. 9, 2009 complaint for a declaratory judgment against the AP, Fairey falsely claimed to have used an AP photograph of George Clooney sitting next to then-Sen. Barack Obama as the source of the artist’s Hope and Progress posters. However, as the AP correctly alleged in its March 11, 2009 response, Fairey had instead used a close-up photograph of Obama from the same press event, which is an exact match for Fairey’s posters. In its response, the AP also correctly surmised that Fairey had attempted to hide the true identity of the source photo in order to help his case by arguing that he had to make more changes to the source photo than he actually did, i.e., that he at least had to crop it.

After filing the complaint, Fairey went on to make several public statements in which he insisted that the photo with George Clooney was the source image and that “The AP is showing the wrong photo.” It appears that these statements were also false, as were statements that Fairey made describing how he cropped Clooney out of the photo and made other changes to create the posters.

Fairey’s lies about which photo was the source image were discovered after the AP had spent months asking Fairey’s counsel for documents regarding the creation of the posters, including copies of any source images that Fairey used. Fairey’s counsel has now admitted that Fairey tried to destroy documents that would have revealed which image he actually used. Fairey’s counsel has also admitted that he created fake documents as part of his effort to conceal which photo was the source image, including hard copy printouts of an altered version of the Clooney Photo and fake stencil patterns of the Hope and Progress posters. Most recently, on Oct. 15, Fairey’s counsel informed the AP that they intended to seek the Court’s permission to withdraw as counsel for Fairey and his related entities.

The AP intends to vigorously pursue its countersuit alleging that Fairey willfully infringed the AP’s copyright in the close-up photo of then-Sen. Obama by using it without permission to create the Hope and Progress posters and related products, including T-shirts and sweatshirts that have led to substantial revenue. According to the AP’s in-house counsel, Laura Malone, “Fairey has licensed AP photos in the past for similar uses and should have done so in this case. As a not-for-profit news organization, the AP depends on licensing revenue to stay in business.” Proceeds received for past use of the photo will be contributed by the AP to The AP Emergency Relief Fund, which assists staffers and their families around the world who are victims of natural disasters and conflicts.

October 20, 2009

Shepard Fairey Motion to Amend

Anthony T. Falzone (admitted pro hac vice)
Julie A. Ahrens (JA0372)
Stanford Law School
Center for Internet and Society
559 Nathan Abbott Way
Stanford, CA 94305
Telephone: (650) 736-9050
Facsimile: (650) 723-4426
Email: falzone@stanford.edu

Mark Lemley (admitted pro hac vice)
Joseph C. Gratz (admitted pro hac vice)
Durie Tangri LLP
332 Pine Street, Suite 200
San Francisco, CA 94104
Telephone: (415) 362-6666
Email: mlemley@durietangri.com
Attorneys for Plaintiffs and Counterclaim Defendants
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
SHEPARD FAIREY and OBEY GIANT ART, INC., Plaintiffs,
-against-
THE ASSOCIATED PRESS, Defendant and Counterclaim Plaintiff,
-against-
SHEPARD FAIREY, OBEY GIANT ART, INC., OBEY GIANT LLC and STUDIO NUMBER ONE,
INC. Counterclaim Defendants,
And
Case No.: 09-01123 (AKH)
ECF Case
MOTION TO AMEND PLEADINGS

MANNIE GARCIA, Defendant, Counterclaim Plaintiff and Cross-claim Plaintiff/Defendant,
v.
SHEPARD FAIREY AND OBEY GIANT ART, INC., Counterclaim Defendants,
And
THE ASSOCIATED PRESS, Cross-claim Plaintiff/Defendant.

Plaintiffs-Counterclaim Defendants Shepard Fairey (“Fairey”) and Obey Giant Art, Inc. and Counterclaim Defendants Obey Giant LLC and Studio Number One, Inc. by and through their attorneys, respectfully request leave to amend the following pleadings: (A) Plaintiffs Fairey and Obey Giant Art, Inc.’s Complaint; (B) Plaintiffs-Counterclaim Defendants Fairey and Obey Giant Art, Inc. and Counterclaim Defendants Obey Giant LLC and Studio Number One Inc.’s Answer and Affirmative Defenses to the Counterclaims of Defendant The Associated Press (“The AP”); and (C) Plaintiffs-Counterclaim Defendants Fairey and Obey Giant Art, Inc. and Counterclaim Defendants Obey Giant LLC and Studio Number One Inc.’s Answer, Affirmative Defenses, and Counterclaims to the Counterclaims of Defendant Mannie Garcia (“Garcia”). Plaintiffs and Counterclaim Defendants (“Plaintiffs”) move to amend these pleadings to reflect new information Plaintiffs’ counsel first learned on October 2, 2009 relating to the identity of the photograph Mr. Fairey used as a reference to create the Obama Works at issue in this case. The pleadings, with redlining indicating the proposed amendments, are attached to this motion as Exhibits A through C, respectively. The AP stated that it would not oppose this motion as long as Plaintiffs provide the Court with a full explanation as to why the amendment is necessary. Mr. Garcia’s counsel informed Plaintiffs’ counsel that Mr. Garcia does not oppose the motion so long as he is granted an additional 60 days for discovery. In Plaintiffs’ original complaint for declaratory judgment and in their answers to claims alleged against them by The AP and Mannie Garcia, Plaintiffs alleged that Mr. Fairey used a photograph of George Clooney and Barack Obama (identified in the original Complaint as the “Garcia Photograph” and identified by The AP in its Counterclaims as the “Clooney Photograph”) as a photographic reference to create the illustration of Barack Obama that appears in the Obama Works at issue in this case. In addition, Plaintiffs denied that Mr. Fairey used a photograph of Barack Obama alone (identified by The AP in its counterclaims as the “Obama Photograph”) as the photographic reference he used.

On October 2, 2009, counsel for Plaintiffs learned new information revealing that Plaintiffs’ assertions were incorrect. Mr. Fairey was apparently mistaken about the photograph he used when his original complaint for declaratory relief was filed on February 9, 2009. After the original complaint was filed, Mr. Fairey realized his mistake. Instead of acknowledging that mistake, Mr. Fairey attempted to delete the electronic files he had used in creating the illustration at issue. He also created, and delivered to his counsel for production, new documents to make it appear as though he had used the Clooney photograph as his reference.

On October 9, 2009, Plaintiffs’ counsel sent a letter to counsel for The AP and counsel for Mannie Garcia notifying them of the situation and of the need to amend Plaintiffs’ pleadings accordingly. Plaintiffs’ counsel enclosed proposed amendments with that letter, and specifically advised counsel for The AP and Mr. Garcia that Plaintiffs no longer contend Mr. Fairey used the Clooney Photograph in creating the Obama Works at issue in this case and that Plaintiffs do not deny he used the Obama Photograph. In this letter, Plaintiffs’ counsel also informed opposing counsel that Plaintiffs no longer contend that certain documents Plaintiffs produced in discovery (bearing Bates numbers FAIREY00669 through FAIREY00672) were used in the creation of the Obama Works, and that Mr. Fairey had created these documents in 2009, after the original complaint was filed in this matter. Plaintiffs’ counsel also produced additional documents (bearing Bates numbers FAIREY104735 through FAIREY104766) and explained that Mr. Fairey had attempted to delete some or all of these documents at or around the same time he created the documents bearing Bates numbers FAIREY00669 through FAIREY00672, but that he had been unsuccessful in deleting all copies of them. Finally, the letter corrected certain misstatements Plaintiffs’ counsel had previously made (understanding them to have been true at the time) while meeting and conferring on discovery.

Plaintiffs therefore respectfully request that the Court grant their motion to amend their pleadings in light of the information above.

DATED: October 16, 2009 Respectfully Submitted,
/s/
Anthony T. Falzone (admitted pro hac vice)
Julie A. Ahrens (JA0372)
Stanford Law School
Center for Internet and Society
559 Nathan Abbott Way
Stanford, CA 94305
Telephone: (650) 736-9050
Facsimile: (650) 723-4426
Email: falzone@stanford.edu

Mark Lemley (admitted pro hac vice)
Joseph C. Gratz (admitted pro hac vice)
Durie Tangri LLP
332 Pine Street, Suite 200
San Francisco, CA 94104
Telephone: (415) 362-6666
Email: mlemley@durietangri.com
Attorneys for Plaintiffs and Counterclaim
Defendants

Shepard Fairey Motion to Amend Exhibits

The Exhibits to the Motion to Amend may be found at: http://www.ap.org/iprights/fairey.html.

October 21, 2009

AP's Response to Fairey's Motion

AP's Motion to Amend the Pleadings and exhibits thereto are available at: http://www.ap.org/iprights/fairey.html.

January 20, 2010

Back door to fashion copyright protection?

By Marie-Andree Weiss

In a case filed on December 18, 2009 in the New York Southern District Court, Nygård International Partnership claims that the Canadian Broadcasting Company (CBC) copied without authorization plaintiff's copyrighted performance/material.

Here are the facts of the case, as stated in the complaint: Nygård opened a store in Manhattan last November, and organized a fashion show featuring Nygård merchandise as part of the opening celebration. Nygård invited only a limited number of preapproved media members, and had them all sign an agreement limiting their rights to record the show. CBC had not been invited to the show, and thus had not signed the agreement. One of its employees nevertheless allegedly made an unauthorized recording of the event, even after having been asked by a Nygård employee to leave the store. A cameraman who may be a CBC employee also made an unauthorized video recording of it.

Count 1 of the Complaint claims that defendant infringed Nygård's exclusive rights in its copyrighted works. Which works are they, the fashion clothes or the fashion show?

Plaintiff applied for copyright registration for the show. Searching the copyright office database reveals that it holds two copyright registrations for a motion picture of the fashion show, one contained on four DVDs, and one contained on one DVD. Nygård claims that the distribution of images of its fashions prior to their release in the marketplace would give its competitors an unfair advantage, and could cause Nygård to lose control over its intellectual property.

But which intellectual property is it? Nygård's competitors are fashion houses, not media companies. It seems that by claiming copyright protection of the movie picture depicting the fashion show, Nygård is trying to indirectly protect its fashion creations. As we know, clothes, even highly fashionable ones, are not protected by U.S. copyright laws, because they are useful articles

By claiming copyright protection of the recording of a fashion show, featuring fashion clothes not protected by U.S. copyright, could fashion designers protect their creations? If successful, this case could allow protecting fashion clothes using a back door, or perhaps one should say, a stage door.

What could be the outcome of this case? In a similar case, Sarl Louis Féraud Inter v. Viewfinder Inc. (S.D.N.Y 2005), the S.D.N.Y. dismissed French Fashion house plaintiffs Féraud and Balmain's action to enforce two judgments issued by the Tribunal de Grande Instance de Paris against Viewfinder, an American company. Viewfinder's Internet site had reproduced photographs of plaintiff's fashion shows.

One of Viewfinder's arguments had been that the French judgment was repugnant to the New York public policy because it was inconsistent with American intellectual property law. Fashion designs are indeed protected by French copyright law: article L.112- 2 14° of the French Intellectual Property Code (thereafter French IP Code) specifically lists as protected works "creations of the seasonal industries of dress and articles of fashion." Interestingly, fashion shows, although not expressly protected by the French IP Code, are protected under its article L112-1 which grants protection to the "rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose." This rather large definition encompasses fashion shows. Until recently though, French Courts had not explicitly held that fashion shows were protected, even though legal IP scholars, such as Professor Pierre-Yves Gautier, argued that they ought to be. The Criminal Chamber of the Cour de Cassation, France's Supreme Court, finally held in February 2008 that a fashion show is protected by French IP laws, and thus the persons who reproduced it illegally were indeed guilty of the crime of counterfeiting (Cass. Crim. February 5, 20008, number 07-81.387).

Since plaintiffs could not copyright their dress designs in the U.S., Viewfinder's argued that its photographs could thus not be found to violate plaintiffs' property interests under U.S. law. The S.D.N.Y refused to enforce the French judgment, stating that doing so would have been repugnant to the public policy of New York State under C.P.L.R. § 5304 (b)(4). However, it did not decide that enforcing the Paris court's judgment would be repugnant because the French intellectual property laws differ so from those of the United States, but because enforcing it would violate Viewfinder's First Amendment rights. Even if the plaintiffs' designs were copyrightable, U.S. copyright law provides "as a matter of First Amendment necessity, a "fair use" exception for the publication of newsworthy matters (Viewfinder, 406 F.Supp.2d at 284). The Court noted that "fashion shows are a matter of great public interest, for artistic as well as commercial purposes" and that "the extensive coverage given to such events in various mass media makes clear that there is widespread public interest in these matters."

This argument did not fare well with the Court of Appeal for the Second Circuit (Feraud v. Viewfinder, 489 F.3d 474 (2nd Cir. 2007), which vacated the lower court's order for failure to conduct the full analysis necessary to reach the conclusion that Viewfinder's First Amendment rights would be violated. The Second Circuit noted that the First Amendment does not provide a categorical protection, and it must co-exist with intellectual property laws: "the fact that an entity is a news publication engaging in speech activity does not, standing alone, relieve such entities of their obligation to obey intellectual property laws."

As for the 'fair use' argument, the Second Circuit cited Harper & Row, 471 U.S. at 557, 105 S.Ct. 2218, where the Supreme Court had found that publishing "newsworthy matters" is not necessarily fair use. This precedent may be helpful to Nygård, should the defendants invoke fair use as a defense. Regardless, this interesting case should be monitored closely by those interested in finding a way to protect fashion designs in the United States.

Link to Nygard complaint:
http://www.scribd.com/doc/24376395/Complaint-Copyright-Trespass-CBC

Link to French IP Code:
http://195.83.177.9/code/liste.phtml?lang=uk&c=36&r=2494

Link to Sarl Louis Feraud Int'l v. Viewfinder, Inc. (2nd Cir. 2007): http://vlex.com/vid/sarl-louis-feraud-int-l-viewfinder-28797792

February 1, 2010

Christoph Büchel's VARA Victory

By Monica Pa

On January 27, 2010, the First Circuit Court of Appeals issued an important decision protecting the scope of artists’ rights under the Visual Artists Rights Act (“VARA”), 17 U.S.C. § 106A. In this much-publicized lawsuit, the Swiss artist Christoph Büchel was commissioned by the Massachusetts Museum of Contemporary Art Foundation, Inc. (“Mass MOCA”) to construct a mammoth art installation, roughly the size of a football field, entitled “Training Ground for Democracy” (“Training Ground”). The work included several major components, such as a vintage movie theater interior, a house, a variety of vehicles, a burned out 737 aircraft fuselage, and a bomb carousel. Mass MOCA was solely responsible for the cost of acquiring these items for the installation, which ultimately amounted to an upwards of $300,000 (nearly twice its initial budget) for materials and labor. Remarkably, the parties never memorialized the terms of their relationship or their understanding as to the intellectual property rights at issue. Communications between the artist and the museum became so strained that the artist refused to continue working on the unfinished installation. The museum, nevertheless, continued putting together the work in accordance with Büchel’s latest instructions. Unable to convince Büchel to return to the project, on May 21, 2007, Mass MOCA filed a complaint in federal court seeking a declaration that it was entitled to exhibit this unfinished work and a retraining order preventing Büchel from interfering. Büchel responded with a five-count counterclaim, asserting, among other things, that showing his unfinished work would violate his rights under VARA.

In July 2008, Judge Michael A. Ponsor in the District Court of Massachusetts ruled in favor of Mass MOCA, 565 F. Supp. 2d 245 (D. Mass. 2008), holding that VARA did not protect unfinished works of art. As such, the museum was entitled to show the Training Ground work so long as it included an accurate disclaimer. In any event, Büchel’s rights of attribution and integrity under VARA were not implicated by the museum’s conduct. The district court then dismissed Büchel’s copyright claims, finding that the display of “covered components of an unfinished installation” was neither an infringement of Büchel’s exclusive right to publicly display his work or to create derivative copies. Accordingly, the district court entered judgment in favor of the museum and dismissed all five of Büchel’s counterclaims.

In a substantial victory for artist rights advocates, the First Circuit reversed. Most important, Judge Lipez, writing for the unanimous panel, held that the “statute’s plain language extends its coverage to unfinished works”, as well as the statute’s history and purpose. The court concluded that Büchel’s rights in his Training Ground work “were protected under VARA, notwithstanding its unfinished state.” VARA protects an artists “right of integrity” which allows the artists to prevent distortions, mutilations or modifications of their works that are prejudicial to their reputation or honor. The record contained “sufficient evidence to allow a jury to find that Mass MOCA’s actions [namely modifying the “Training Ground” work over his objections] caused prejudice to Büchel’s honor or reputation.” The court, however, dismissed Büchel’s right of attribution claim. Since VARA’s protection for a right of attribution is only enforceable through injunctive relief, this claim was moot because the Training Ground work no longer existed after the museum dismantled it.

This decision is also notable for its copyright holding. Acknowledging the intersect between VARA and the Copyright Act, the First Circuit held that the record revealed a factual dispute as to whether Mass MOCA violated Büchel’s exclusive right to publicly display his work when it repeatedly and deliberately showed Büchel’s unfinished works on numerous occasions to various individuals without his permission. The court, however, held that because Büchel’s counsel did not adequately develop the claim that the museum’s modification of the Training Ground work constituted the creation of an unauthorized derivative work, this copyright right was waived on appeal. This case was remanded for further proceedings on Büchel’s reinstated VARA and copyright claims. In a recent statement to the press, Büchel’s counsel has indicated that Büchel, now represented by the Volunteer Lawyers for the Arts, Wachtell, Lipton, Rosen & Katz in New York City, and K&L Gates LLP in Boston, intends to litigate this case “to the fullest extent possible.”

This litigious debacle has, interestingly, reemerged in Büchel's other works. At the latest Art Basel Miami Beach show in December 2007, he presented a smaller version of the Training Ground work, which featured litigation papers and correspondence about the failed show. Reportedly, this work was purchased by a collector for $250,000, and donated to the Hamburger Bahnhof museum in Berlin.

February 9, 2010

Rescheduled - Seton Hall University School of Law, Sports and Entertainment Law Journal 2010 Sports & Entertainment Law Symposium

Seton Hall University School of Law, Sports and Entertainment Law Journal

Presents: 2010 Sports & Entertainment Law Symposium
Newark, New Jersey

The SHU Law Journal of Sports and Entertainment Law Symposium has been rescheduled from its original date, which had to be cancelled due to inclement weather.

New Date: April 12, 2010

Time: 8am-3:45pm

Registration: is required and can be completed at: http://law.shu.edu/Students/academics/journals/sports-entertainment/symposium/registration.cfm.

Panels will remain the same, with the exception of a few speakers.

Keynote: Lou Lamoriello, CEO and GM of the New Jersey Devils

5 NYCLE Credits (full day attendance required) $100

General Public $25

Free Admission for Students

Breakfast & Lunch will be provided to all attendees

More details to follow along with the official list of panelists.

If you have any questions, please contact Brett Theisen at brett.theisen@gmail.com

February 15, 2010

Justice Department's Statement of Interest - Google Books Case

By Mary Rasenberger


A careful reading of the Statement of Interest filed in the Google Books case by the Justice Department last week shows a harsher assessment than was evident in its earlier filing. The government’s brief rejects the amended settlement agreement (“ASA”), finding that the parties’ attempts to cure the issues the government identified in its earlier brief do not go nearly far enough: “Despite this worthy goal [trying to create a mechanism to allow for lawful large-scale book digitization], the United States has reluctantly concluded that the use of the class action mechanism in the manner proposed by the ASA is a bridge too far.”

Given the stakes and pressures that were likely put to bear on the government, it is an incredibly strong document. It will be remarkable if Judge Chin (or his successor in the case, if he is moved up to the Second Circuit soon) approves the ASA as-is, even after the substantial responses filed by the parties.

The government’s main issue with the ASA is that it uses the class action suit to create a far-reaching commercial arrangement that looks far into the future (indeed in perpetuity) and far beyond the claims off the suit. It does this by granting Google legal rights that it never could have obtained through a private arrangement or through a judicial resolution of the suit – and these legal rights fly in the face of “the core principle of the Copyright Act that copyright owners generally control whether and how to exploit their works during the term of copyright.” Secondarily, providing these rights, the government argues, confers significant, possibly anti-competitive advantages to Google.

The government’s September 18th brief focused on the anti-competitive concerns and more technical class action issues, and did so in an equivocal enough way that it left room for the parties to make the minor changes they did in the ASA and be able to wipe their hands with a straight face. The recent brief, in contrast, does not mince words and hits hard on the underlying problem many objectors have with the ASA - it attempts to use the class action process to get around the existing legal system rather than to support it. As Marybeth Peters, the Register of Copyright, has said, and many have repeated: the settlement turns copyright on its head. It creates a whole new legal system of opt-out regime for the benefit of a single entity, which is totally at odds with copyright’s grant of exclusive rights to authors.

To summarize the government’s brief at a very high level, there are three key objections to the ASA:

1. Class action law does not permit settlements to replace commercial transactions that go far beyond the claims at issue in the case or restructure the law;

2. The settlement turns copyright on its head by creating an opt-out regime for the vast majority of works at issue; and

3. Granting an across-the-board license to Google for non-commercial works on an opt-out basis creates potential anti-competitive advantages, as no competitor will be able to obtain those rights, especially in the case of unclaimed works.

At the same time, the government is rightly sympathetic with the parties’ attempt to use the class action process in this way. The current law and practice is arguably defective, and makes mass-digitization, even when it serves a good public purpose, impossible to do legally. Orphan works legislation might help some, as would collective licensing arrangements or perhaps a statutory license for libraries. But you don’t have to be a class action lawyer to know that Rule 23 (the civil procedure rule allowing for class action lawsuits) is not intended to be used to create new law. We have one mechanism for fixing the law in this country – legislation. As judges in countless cases have said: you have a problem with the law, take it to Congress.

Sure, it’s been impossible in recent years to pass copyright legislation, but that doesn’t mean we get to amend the law ourselves in class action lawsuits.

For those interested in more detail, I’ve summarized some of the specific arguments in the government’s February 4th Statement of Interest below. The arguments are made in the context of two separate sets of laws: class action law and antitrust law.

Class Action Law Related Issues

The Government’s brief states: “The Supreme Court has cautioned that 'Rule 23… applied with the interests of absent class members in close view, cannot carry the large load of restructuring legal regimes in the absence of congressional action – however sensible that restructuring might be.'”

The arguments regarding non-compliance with the Rule 23 class action rules are some of the more interesting and compelling ones raised in the case. The Rule 23 law gets at some of the smell test issues in this case, described above – i.e., even though it sounds good, it looks good, it doesn’t smell quite right. It seems at odds with some of our underlying basic legal principles to allow a class action law suit filed by a small group of associations and individuals, who admittedly do not represent all author and publisher class members throughout the world or even the U.S., to take away hundreds of thousands (if not millions) of individuals’ rights without their consent. It’s even odder when you consider that the law suit was brought to enforce those very rights.

It turns out, according to one Justice (and certain other objectors, e.g., Microsoft, Amazon, Scott Gant) that the class action law does have standards, if not crystal clear ones, that don’t necessarily promote this kind of sweeping conversion of rights.

Both the parties’ and the government’s briefs discuss the standards set forth in the Supreme Court’s Firefighters case (Local Number 93, Int’l Assoc. of Firefighters v. City of Cleveland, 478 U.S. 501 (1986)). Under Firefighters and its progeny, the Court may approve a settlement that meets the following three-prong test: (1) the settlement springs from and serves to resolve a dispute with the Court’s subject matter jurisdiction, (2) the settlement comes within the general scope of the case made in the pleadings, and (3) it furthers the objectives of the law on which the complaint was based. The government concludes that:

1. It’s difficult to see how this settlement meets the first prong in that it resolves future claims by absent class members for activities well beyond the facts underlying the complaint;

2. The ASA does not meet the second prong because it creates a business relationship that covers future conduct that goes way beyond the claims in the complaint and provides Google with benefits that it never could have obtained through the litigation itself or even through a privately negotiated deal (i.e., the opt-out for non-commercial works); and

3. The ASA does not further the objectives of copyright law, but is inconsistent with the policy of Copyright Act, which provides for exclusive rights and not opt-outs.

The government concedes that a settlement of a class action may go “somewhat” beyond the conduct complained of in the complaint, but can’t go so far as “to abridge or enlarge substantive rights” and “usurp the legislative function.”

The government further states that the ASA does not remedy the lack of adequate representation of the interests of a large number of members (namely, unclaimed work owners, foreign rightsholders) in the settlement negotiations, and that appointing a fiduciary with limited powers for unclaimed works at the Registry does not solve the problem. It also exhorts the Court to look more closely at the notice provided to potential class members to determine if it was adequate, specifically requesting that the Court “undertake a searching inquiry to ensure both that a sufficient number of class members have been or will be reached and that the notice provided fives a complete picture of the broad scope of the ASA…”

Last, the government raises concerns about Attachment A of the ASA. Attachment A is a sub-agreement that controls potential disputes between authors and publishers, mainly regarding possession of rights and splits, and supersedes all agreements between publishers and authors, even foreign ones. The government notes that there may be a conflict of interest between subclasses of authors and publishers, which raises “serious questions” regarding adequacy of representation under Rule 23.

Antitrust Issues

The antitrust issues discussed in the brief are essentially the same ones addressed in the government’s September 18th brief; and they are the primary issues that the parties attempted to address in the ASA’s amendments. The government states that the parties made “constructive revisions” to address these potential anti-competitive problems, but that the amendments do not go far enough to remedy:

1. The creation of an industry-wide revenue-sharing formula at the wholesale level applicable to all works;

2. The setting of default prices and the effective prohibition on discounting by Google at the retail level; and

3. The control of prices for orphan books by the known publishers and authors with whose books the orphan books likely will compete.

With respect to the first issue, the government notes that the ASA gives Google the right to renegotiate the wholesale revenue split with rights holders, but only for commercially available works. The government believes that the carve-out for non-commercial works may render the amendment somewhat meaningless, given the fact that the vast majority of works at issue are not commercially available under the ASA’s definition and that this will be especially true if the publishers take commercially available books out of the settlement, as many have suggested they will do.

The government also does not believe that the “fixes” regarding the use of pricing algorithms go far enough to prevent a de facto horizontal agreement. It analogizes the publishers’ and authors’ agreement to allow Google to price the works (using its algorithms) to the delegation of pricing to a common agent - a practice found to be unlawful. Far preferable would be actual bilateral negations than the ability to opt-out of the default use of algorithms.

The government’s biggest concern, however, relates to the pricing of orphan works, since the Registry’s board, consisting primarily of commercial publishers and authors, would have the ability and incentive to limit competition from unclaimed works. The parties have responded to this criticism (also in the government’s September brief) by providing in the ASA for an “Unclaimed Works Fiduciary,” but this fiduciary’s powers are limited – for instance, he or she will not have the ability to set prices for works, or renegotiate splits. As such, the government does not believe the appointment of fiduciary cures the underlying problem.
Last and most importantly perhaps, the government finds that the amendments do not address Google’s de facto exclusive rights to use orphan and rights-uncertain works. The government states that no other entity will have the ability to offer these works legally. Although the ASA attempted to address this concern by expressly allowing resellers to provide access to these works, the government does not equate these reseller rights with the right Google has to freely exploit orphan and other unclaimed works. It concludes: “the reseller clause cannot create new competitors to Google.”

So now what?

The government’s brief advises the Court that the public interest would best be served by direction from the Court encouraging the continuation of settlement discussions between the parties. But if we can be realistic for a moment – what are the chances of Google agreeing to all of the concessions that Justice’s analysis would require to make the settlement copasetic? Google has made it clear that, from its perspective, the opt-out for out-of-print works, and especially the orphans, is essential to the deal. If you read the government’s brief carefully, it does not appear that its cumulative objections all could be adequately addressed without getting rid of the opt-out for non-commercial works. The government does state, however, that if the opt-out is retained, Google should be required, among other things, to conduct a search for unclaimed work prior to their use, similar to the reasonable search requirement in the last iterations of the orphan works bill. Google has publicly stated that, although it supports orphan works legislation, that legislation would not provide it with the flexibility it would need to create the inclusive database envisioned.

Briefs Filed in Support of the Amended Settlement Agreement in the Google Books Case

By Mary Rasenberger

An impressive number of pages were filed this past Thursday (February 11, 2010) by the parties in the Google Books Search case in support of the amended settlement agreement (“ASA”). Only a week after the Justice Department filed its brief, both Google and the named Plaintiffs (publishers and authors collectively) filed briefs worthy of fat binder clips. The Plaintiffs' briefs alone comprise nearly 250 pages, including a 170 page Supplemental Memorandum Objecting to Specific Objections (and with the numerous declarations and exhibits the parties' papers amount to over 2,500 pages altogether).

The briefs remind the Court of the benefits of and support for the settlement, and as would be expected, address the government’s concerns set out in its February 4th Statement of Interest. Google’s brief addresses the government’s objections in great detail supported by substantial case law; the brief also discusses a somewhat random, handful of objections filed by others (fairness to third parties, burden of determining whether a book was registered, inaccuracies in the database, security, and time limit on removal).

The Plaintiffs’ principal brief makes some compelling arguments as to why the ASA is preferable to the alternative outcomes in this case (e.g., protracted litigation, the risk of an on/off decision) and why the settlement is reasonable in light of the case. It summarizes the ASA and its benefits and takes on some of the Rule 23 and other concerns raised by the government. The Plaintiffs’ supplemental brief appears to take on the entire catalog of objections filed by all objectors with standing. Impressive as it is, the supplemental brief may have bit off more than it could chew. Some of the responses, some even to significant objections, come off as non-responsive or conclusory. Moreover, the same objections in some cases are addressed separately in the two briefs, not always completely consistently. They don’t always cross-reference arguments made in the other brief (e.g., the discussion of adequacy of notice in the supplemental brief seems very conclusory if not read alongside the discussion in the principal brief, which is not referenced).

For instance, in response to arguments that the ASA cannot bind foreign members of the class because (1) the law is at odds with that of other countries and (2) the Court lacks personal jurisdiction, the Plaintiffs state in the supplemental brief (pp. 61-63) that members of the class can be bound so long as notice meets the Rule 23 requirements, and that notice was compliant (here referencing their arguments as to why it was compliant). Admittedly, I have not read the cases they cite, but maybe they could explain why compliant notice would address these concerns.

In response to Justice’s and others’ concerns about the fact that Google alone will have the right to offer orphan works (i.e., books for which a copyright owner cannot be located) and the impossibility for others to obtain the rights to the orphans and enter that market, in the Supplemental Motion (pp 149-150), the Plaintiffs summarily respond: "This argument relies on unsupported and illogical speculation that the subset of out of print [orphan] books is so uniquely valuable and desired that other subscription products will be unable to compete with the Institutional Subscription."

Considering that the government and many others viewed this as a significant issue, the response seems flippant. Of course, a subscription database that includes all books, including out-of-print books for which no owner has come forward, is much more valuable than one that is created on an opt-in basis and so would not include orphans. As a library, which one would you chose? And if these works don’t increase the value of the database, then why is the opt-out so crucial to the settlement? Why does Google insist it needs these out-of-print works (a huge portion of the books at issue in the settlement)? If the out-of-print, unclaimed works really are so valueless, then make them available to Google on an opt-in basis and 95% of the objections go away.

Some odd responses aside, the parties’ recent briefs keep the ball in play. Perhaps most interestingly, filing these briefs indicates that the parties do not intend to go back to the negotiating table again as the government recommended. Moreover, the briefs contain some solid, convincing arguments. They are worth a thorough read for the interested – who have a lot of free time. (It does feel like reading the original settlement agreement all over again.) Most importantly, one hopes that Judge Chin will have the time to read it all. He may just want to run for the hills when he sees all that paper. I mean the Second Circuit.

The briefs have good table of contents, as you’d expect. One approach to reading the briefs is to do so on a topic by topic using the table of contents, rather than try to read them in linear fashion. And for those of us who’d love to see a list of all objections filed in the case, the supplemental brief serves as a pretty good proxy.

August 15, 2010

Report on the ABA Forum on the Entertainment and Sports Industries –Part I: “From Music, Film and Art to Motorcycles and Other Sports: Hot Issues and Disputes in Entertainment, Art and Sports Licensing Deals”

By Monica Pa

This panel was held on Friday, August 6, 2010 at the InterContinental Hotel in San Francisco.

The panel included Richard J. Idell, Idell & Seitel; Jessica Darraby, the Art Law Firm; Samuel Lew, Feldman Gale PA; Jann Moorhead; and Rob Rieders, Pixar Animations Studios. This blog entry only discusses Rob’s presentation, which I thought raised excellent points about entertainment licensing by a content creator.

Pixar has been involved in numerous award-winning animated movies, including Toy Story, Up, Cars, etc. Rob’s presentation provided practice tips for how to negotiate and work with content owners, licensors, creative executives and the marketing team in setting forth the parameters of the licensing agreements and the scope of permissible use for creative works.

He used the movie Toy Story as an example of various entertainment licensing issues that come up in a movie. Toy Story licensed a tremendous number of characters (e.g., Ken and Barbie, Mr. Potato Head, Slinky the dog, lots of Fisher Price toys, etc.). When you are licensing a character, you want to consider all the artistic interpretations of the licensed elements and potential changes to the brand identity from these interpretations. For example, if you are licensing Mr. Potato Head, you want to think about what happens when a toy becomes a “living character,” animated with a voice, personality and 3D design. Similarly, if you are licensing a historic character like Kasper the Ghost, and the licensee intends to update this character, are these updates going to be appropriate for the character? Will it be positive for the brand and/or the overall line of business?

For example the movie Cars animated several iconic cars and gave them distinct personalities. Pixar depicted the 1960 VW Bus as an old hippie van narrated by George Carlin. The 1959 Chevrolet Impala was updated as a snazzy slick Hispanic car narrated by Cheech Marin. In Toy Story, Barbie and Ken were primary characters. Pixar was unsure whether Mattel would be comfortable with the depiction of Ken as a fashionista metrosexual. Barbie, on the other hand, was depicted as very intelligent, which Mattel liked. Similarly, Mr. Potato Head is an important brand for Hasbro (it's the company's Mickey Mouse), so it is protective of this character. In Toy Story, Mr. Potato Head was depicted as a folksy character narrated by Don Rickles. Pixar queried whether Hasbro would be comfortable with the fact that Mrs. Potato Head was depicted walking around for half the film without an eye. Notably, Mr. Potato Head was depicted with a bowler hat and mustache, which was not original to the toy. By doing this, Pixar added to the Mr. Potato Head character, thereby creating new intellectual property that Pixar now has some ownership interest.

In entertainment licensing, you want to continually consult with the licensor along the way. Even if you have a broad license, you do not want to have the licensor unhappy with the resulting product or be surprised about how its character was depicted. Once a film is made (which can take up to five years), it is extremely difficult and expensive to extract elements from the animated work if a dispute arises.

In licensing a character or toy, you’ll also want to consider unexpected uses of the licensed element. For example, Pixar created a Mr. Tortilla Head (which took Mr. Potato Head’s features and put it on a tortilla because at one point the toys needed to slide under a closed door.) Make sure the license provides for whether the elements of the intellectual property can be disembodied and whether it governs the “whole” work. Remember, people love mash ups.
In seeking to obtain a license for a character, as a preliminary consideration, analyze whether a license is even obtainable given the intended use. For example, in the current Toy Story, the nemesis was an evil teddy bear. There is no famous teddy bear brand (such as Paddington Bear) that would be willing to license their character for this use because this would be so detrimental to the brand. Accordingly, Pixar created its own teddy bear character that is pink, bitter and walks with a cane. Indeed, it’s sometimes better to create your own content rather than operate under a restrictive license where the licensor is uncomfortable with the intended use.

However, if you are going to license a character as a nemesis, e.g., a “Bad Guy”, make sure you fully and accurately disclose your intended use because, again, you do not want the licensor to be unhappy later. Put a full disclosure in writing setting forth the intended use (e.g., this character is going to be depicted as a homicidal maniac). Regardless of how the character is going to be used, the licensee should never agree to a “positive light” provision, which provides that the character will be portrayed positively; at most, agree to a “neutral light” provision. Also pay attention to the precatory language in the agreement, and be careful about boiler-plate provisions, including provisions for injunctive relief, venue, choice of law, and publicity rights the content creator should control the publicity of the film and not the licensor).
A content creator also wants to avoid giving the licensor script approval or final product approval. This, however, depends on the bargaining power of the respective parties, and on the reputation of the content creator. Pixar does not give story approvals, but they have good relationships with their licensors. They work closely with those companies to keep people on board all along the way. With smaller content creators, a licensor may want to be more careful and protective of their brand. In these instances, the licensor may want to push for some level of script approval.

Rob pointed out the challenges that arise when the creative team insists that an element is a “must have.” This results in the loss of negotiation leverage (e.g., the licensor know that you need them more than they need you). If the content creator has an unequal bargaining position (desperation can be obvious), the resulting license will not only be more expensive, it can be limited in the scope of granted rights, and other provisions (e.g., the representations and warranties, indemnification) may be compromised. The in-house lawyer should be willing to push back on the creative team. Try exploring available alternatives with them, such as creating a new character instead.

Another practice point is to make sure that the in-house lawyer is consistent with licensing methods and practices. If the company has a best practices policy, these should be consistently followed. For example, if Pixar is licensing several characters from various toy companies, all of the companies should be treated fairly and subject to similar deal terms. For example, do not give one company script approval when no other company go this and/or there is a company practice against this. Try not to make exceptions, even if the licensed elements is a “must have.” Bear in mind that the licensing community is tight knit and people talk.
In drafting, make sure the license contains contingent obligations. Obligations for payment and screen credit should be contingent on actual use. Without this provision, if the product or character does not actually appear in the film, there is a chance that the content creator will still need to pay the licensor.

License agreements should also contain certain non-contingent obligations, such as a strict confidentiality clause. If the creator discloses preliminary drafts of its film and marketing campaign with its licensing partners, this needs to remain confidential. Another non-contingent obligation should be that the creator reserves the right to use or not use any licensed element. The content creator wants to make sure that no one is shoving their product into a film or marketing campaign.

Finally, Rob pointed out that, in entering into a license, the content creator should assume success; meaning, the film is going to have sequels, toys, books, games, theme parks, etc. For example, there is a “Cars Land” theme park now based on the Cars movie. Try not to give away toy merchandising rights, book rights, and other derivative rights. The creative team may not think this far ahead and, if this is a “must have,” may be willing to forgo these rights in order to get the deal done.

August 24, 2010

Update in Fairey v. AP (Obama Hope Poster Case)

By Joel L. Hecker

This copyright infringement proceeding in the U.S. District Court for the Southern District of New York case became a little simpler on August 20, 2010, when the parties filed a stipulation with the court dismissing AP photographer Mannie Garcia from the case. As you may recall, Garcia was the photographer who took the photograph which was used as the basis for Shepard Fairey's poster. Although Fairey initially claimed that he relied upon a different photo, he later recanted, admitting that he had lied, thereby removing the question of which photo was copied.

Garcia dropped his claim that he owns the copyright to the photo and AP dropped its counterclaim against him. This is not surprising since the documentary evidence filed in the case appeared to clearly establish that the copyright did in fact belong to AP.

Judge Hellerstein, who has in the past pushed for a resolution to the case, has now scheduled what he anticipates to be a three week trial for March 21, 2011, at which time the selection of an eight person jury will commence.

Joel L. Hecker, Of Counsel to Russo & Burke, 600 Third Avenue, New York, NY 10016, practices in every aspect of photography and visual arts law, including copyright, licensing, publishing, contracts, privacy rights, and other intellectual property issues. He can be reached at (212) 557-9600, website www.RussoandBurke.com, or via email: HeckerEsq@aol.com.

October 21, 2010

Photographer Wins Lawsuit against Homeland Security to Photograph Outside of Federal Courthouses

By Joel L. Hecker

Antonio Musemeci, a software developer who works with the radio show Free Talk Live, and is a member of the Manhattan (New York) Libertarian Party, was arrested by an officer of the United States Department of Homeland Security's Federal Protective Service on November 9, 2009 while taking photographs of another Libertarian party member who had been handing out pamphlets in front of the Daniel Moynihan United States Courthouse at 500 Pearl Street in Manhattan.

The arresting officer took his camera and memory card and charged him with violating 41 CFR Section 102-74.420, which places restrictions upon photographing certain federal property. The criminal charge was eventually dismissed and on April 22, 2010 Musemeci filed a lawsuit in the United States District Court for the Southern District of New York. The case, Musemeci v. US Department of Homeland Security, Docket No. 10 Civ. 3370 (RJH), sought to enjoin government officials from restricting non-commercial photography in outdoor public areas where pedestrians have an unrestricted right of access. He was represented by the New York Civil Liberties Union.

That case has now been settled with a complete victory to Mr. Musemeci, other photographers and the public at large. In the settlement agreement filed on October 15, 2010 FPS agreed to provide a written instruction to its officers and employees engaged in law enforcement, stating that for federal courthouses under its protective jurisdiction, there are generally no security regulations prohibiting exterior photography by individuals from publicly accessible spaces, absent a written local rule, regulation or order. The instruction will also inform FPS officers and employees that the public has a general right to photograph the exterior of federal courthouses from publicly accessible spaces.

The settlement does not preclude FPS or any other government agency from taking any legally permissible law-enforcement action, including but not limited to approaching any individual taking photographs and asking for the voluntary provision of information such as the purpose of taking the photographs or the identity of the individual, or taking lawful steps to ascertain whether unlawful activity or reconnaissance for the purpose of a terrorist, or unlawful, act is being undertaken.

FPS also agreed to release Musemeci's memory card which it had seized for use as possible evidence in the initial criminal matter. In addition, FPS will pay Musemeci the sum of $1,500 in damages and $3,350 for his attorney's fees and costs. The stipulation also included mutual general releases.

This settlement and directive would appear to clarify what professional and amateur photographers may do when taking photographs of certain federal courthouses, subject to the specified permissible security measures. Such photographers however, need to be aware of local laws or regulations which might apply to taking photographs in public places.

This settlement is obviously a welcome and long-coming clarification of this federal statute, and what photographers as well as the public at large may do in these situations.

Joel L. Hecker, Of Counsel to Russo & Burke, 600 Third Avenue, New York, NY 10016, practices in every aspect of photography and visual arts law, including copyright, licensing, publishing, contracts, privacy rights, and other intellectual property issues. He can be reached at (212) 557-9600, website www.heckeresq.com, or via email: HeckerEsq@aol.com.

October 25, 2010

VALUABLE ART LAW LECTURE AND NETWORKING OPPORTUNITY

By Leila Amineddoleh

For EASL members interested in attending a fabulous event related to art and antiquities law, SAFE (Saving Antiquities For Everyone) is hosting its annual Beacon Awards this Friday evening. The Beacon Awards promises to be a valuable event and fascinating look into art and antiquities law.

Learn more about the event by visiting http://www.savingantiquities.org/event.php?eventID=235.

Please do not hesitate to contact Leila Amineddoleh (Co-Chair of EASL's Lawyers-in-Transition Committee and Legal Chair of SAFE) at Leila.Alexandra@gmail.com for more information.

December 3, 2010

Application for Masters Program

The Association for Research into Crimes against Art (ARCA) warmly invites applications to its third Masters program in the study of art crime and cultural heritage protection. This program provides in-depth, Masters level instruction in a wide variety of theoretical and practical elements of art and heritage crime: its history, its nature, its impact, and what can be done to curb it. Courses are taught by international experts, in the beautiful setting of Umbria, Italy. This interdisciplinary program offers substantive study for art police and security professionals, lawyers, insurers, curators, conservators, members of the art trade, and post-graduate students of criminology, law, security studies, sociology, art history, archaeology, and history.

For additional information (including a link for the 2011 Masters program application), visit http://artcrime.info/education.htm.



May 20, 2011

Museum Deaccessioning in NY State

By Amy Goldrich

There is real risk in writing an article for a hard-copy publication on a topic in which things are in flux. Something new, and even dispositive, can happen between when one submits the piece for publication and when the printed journal actually appears. It must be another corollary to Murphy's Law.

Naturally, on the eve of the publication of an article on New York museum deaccessioning that was locked at the end of January, the New York Board of Regents approved new rules to govern the deaccessioning of artworks and the treatment of funds generated as a result. Effective June 8, 2011, the new rules (such as they are) will apply to all museums and historical societies charted by the Board of Regents. A copy of the rules may be found here: http://www.regents.nysed.gov/meetings/2011Meetings/May2011/511brca3revised.pdfwww.regents.nysed.gov/meetings/2011Meetings/May2011/511brca3revised.pdf">http://www.regents.nysed.gov/meetings/2011Meetings/May2011/511brca3revised.pdf>.

So what do the new rules do?

1. They list 10 specific criteria, and at least one criterion must be present to support the deaccession of an item from a museum's collection. This is a step beyond AAMD and AAM guidelines, which do not require that any particular factor be present, but rather that the factors be considered.

The 10 criteria in the new regulation are:
• The item is inconsistent with the mission of the institution as set forth in its mission statement.
• The item has failed to retain its identity.
• The item is redundant.
• The item's preservation and conservation needs are beyond the capacity of the institution to provide.
• The item is deaccessioned to accomplish refinement of collections.
• It has been established that the item is inauthentic.
• The institution is repatriating the item or returning the item to its rightful owner.
• The institution is returning the item to the donor, or the donor's heirs or assigns, to fulfill donor restrictions relating to the item which the institution is no longer able to meet.
• The item presents a hazard to people or other collection items.
• The item has been lost or stolen and has not been recovered.

2. They leave unchanged the prohibitions on the use of funds raised through deaccessions: such funds must be used only to accession new items or for the preservation, conservation or direct care of collections.

3. Finally, they require that regulated institutions file an annual report of deaccessions.

This is certainly narrower than the Brodsky Bill, which was far more prescriptive across the board, and broader than AAMD and AAM guidelines, which do not mandate that any particular criterion must exist in order to support deaccession. On the flip side, although the new rules appear to require a more carefully justified decision to deaccession, at least one criterion -- accomplishing refinement of collections - could end up being a virtual "get out of jail free" card. What curator worth his or her salt couldn't come up with a plausible argument that the deaccession of any item or group of items would not refine a collection? However, the requirement to file an annual report of deaccessions would appear to add at least a little more transparency than was previously required. Other than that, we'll just have to wait and see if any of this makes any real difference in how regulated institutions conduct themselves.

June 16, 2011

SNAPSHOT OF CULTURAL HERITAGE LAW

Tuesday, June 28, 2011

-Location-
Sotheby's Institute of Art
570 Lexington Avenue, 6th Floor
(Between 50th & 51st Streets)
New York, NY 10021

-Time-
11:30 a.m. to 1:30 p.m. (Lunch will be served at 11:30 a.m--Program starts at 11:45 a.m.)

2.0 MCLE Credits in Professional Practice

Co-Sponsored by the Fine Arts and Lawyers in Transition Committees of the Entertainment, Arts and Sports Law Section of the New York State Bar Association

Speakers: Evan Barr, Esq., Darlene Fairman, Esq., Jane Levine, Esq. and Jim McAndrew

Program Committee Chairs:
Judith Prowda, Fine Arts Committee
Leila Amineddoleh and Stephanie Khalifa, Lawyers in Transition Committee

Description: The New York State Bar Association's Entertainment Art & Sports Law Section invites you to a panel discussion on the topic of Cultural Heritage Law. Our panel includes distinguished attorneys and art law experts Evan Barr (successful cultural heritage property litigator, and lead attorney on the landmark case United States v. An Antique Platter of Gold), Darlene Fairman (attorney at Herrick Feinstein who litigated the repatriation of antiquities to the Republic of Turkey), Jane Levine (in-house counsel at Sotheby's), and Jim McAndrew (former Senior Special Agent with U.S. Customs Services and U.S. Department of Homeland Security, and currently a forensic specialist at the law firm of Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt).

Take advantage of this rare opportunity to hear these well-known experts discuss and answer your questions related to cultural heritage law.

Registration:
$25 for members
$35 for non-members
$15 for students

PLEASE REGISTER AT www.nysba.org/EASL062811 by June 27, 2011.

If you prefer to register in by telephone, please call our toll-free number at 1-800-582-2452.

For more information, contact Leslie Scully at lscully@nysba.org

July 5, 2011

DANCING AROUND THE ISSUE OF COPYRIGHT OF CHOREOGRAPHIC WORKS

By Merlyne Jean-Louis

Identical twins Laurent and Larry Bourgeois (known professionally as Les Twins), who are currently touring with Beyonce Knowles, are two of new style/studio hip-hop dance's rising stars. In 2010, on the San Diego leg of the World of Dance Tour, the brothers performed an eight minute self-choreographed routine that displayed their remarkable technical ability and quirky personalities. (See http://www.youtube.com/watch?v=_XLGYxeL1iQ.) In June 2011, Fox broadcasted a portion of the audition piece of D*Day, an Atlanta hip-hop dance duo, on the dance competition "So You Think You Can Dance." For one minute, practically step for step, D*Day performed a sequence from Les Twin's routine. As a result, judges allowed D*Day to proceed to the next stage of the competition. Some of Les Twins' outraged fans posted on YouTube videos that compared both routines to ensure that the "biters" did not become finalists on the show. (See http://www.youtube.com/watch?v=3s1doSilyQc.) If Les Twins desired to do something about this controversy, they would have a powerful weapon in their artillery: copyright.

Note: Because the twins are from France, they would probably choose to enforce their copyright under French Law or the Berne Convention. To simplify the legal analysis, I use American law.


Requirements of Copyright Protection for Choreographic Works

To qualify for copyright protection under the Copyright Act of 1976, a choreographer must satisfy three requirements. First, a choreographer must create a choreographic work. Although the 1976 Act defines the majority of copyrightable subject matter, the statute does not define the term choreographic works. However, the U.S. Copyright Office provides a standard definition for the term choreography ("the composition and arrangement of dance movements and patterns, and is usually intended to be accompanied by music") and dance ("static and kinetic successions of bodily movement in certain rhythmic and spatial relationships"). (Compendium of Copyright Practices ("Compendium II") §§ 450, 450.01 (1984).) Although Compendium II prohibits the copyrighting of dance steps and simple routines, such as the basic waltz step, the manual permits copyright registration of dances that incorporate of improvisation, which is relevant to many forms of hip-hop dance. Given these provisions, even though it contains improvised moves, the Les Twins' piece does constitute a choreographic work.

Second, the choreographic work must also qualify as an "original work[] of authorship." (Copyright Act of 1976, 17 U.S.C. § 102(a) (2010).) Today, a work is deemed to be original if it is "independently created by the author [and if] it possesses at least some minimal degree of creativity." (Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).) A choreographic work can be deemed to be original if similarity to another piece is "fortuitous [and] not the result of [deliberate] copying." (Id.) Thus, because the twins created the work and it is creative, the Les Twins piece is original.

Third, the choreographic work must be "fixed in any tangible medium of expression" in a manner that it "can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." (17 U.S.C. § 102(a).) Currently three forms of fixation for choreography satisfy the Act's requirement: video recording, notation, and computer technology. As the Les Twins' piece was recorded and posted on YouTube by Yak Films, the work was fixated. Thus, assuming that the Bourgeois brothers 1) jointly claim copyright of the piece and 2) do not encounter work for hire issues, Les Twins own the copyright of the World of Tour piece under American law.

Potential Claims of Les Twins

As copyright protection provides the holder with a bundle of exclusive rights, Les Twins could have three major claims. First, the brothers could sue D*Day for infringing upon their right to perform, because D*Day performed most of Les Twins' piece in front of judges and other dancers in Atlanta's Fox Theater. (See 17 U.S.C. §§ 101 (defining public performance), 106(4) (enumerating exclusive right).) Second, because D*Day used dance moves that differed from those used in the Les Twins' piece, the Bourgeois brothers could claim that D*Day created a derivative work of their piece. (See 17 U.S.C. § 106(2).) Finally, Les Twins could sue Fox Television for transmitting the infringing D*Day piece to the American audiences via television and the Internet. (See 17 U.S.C. § 101.)

Potential Defenses of D*Day and Fox

D*Day and Fox could have some potential defenses to such a lawsuit. D*Day could claim that use of the Les Twins piece constituted fair use, because the members were somehow commenting on the piece or teaching the judges about new style/studio hip-hop dance. Balancing the four factor test of fair use, this defense would probably fail, however, because D*Day used a substantial portion of the Les Twin piece and used it for a commercial purpose (to audition for a show on which they could ultimately win $250,000). (See 17 U.S.C. 107.) With respect to the second claim, although D*Day could claim that the piece was sufficiently original and unlike that of Les Twins', this claim would also probably fail because D*Day stated that the piece was a tribute to and inspired by Les Twins. Finally, with respect to Les Twins' third claim, Fox could state that the piece was not transmitted over the Internet, because a viewer would have to take proactive steps to download and view the video of the show that displayed the D*Day audition piece. This defense could survive.

The Implications of a Suit by Les Twins

Although Les Twins can benefit from copyright protection of their works, they have chosen not to enforce their exclusive rights. This is most likely because of the dance culture: choreographers are honored and feel respected when others perform their pieces. According to D*Day, Les Twins told the group not to worry about the negative feedback from Les Twins' fans and wished them luck in the next stage of the dance competition. When Les Twins were asked about the D*Day incident by a dance magazine, Les Twins avoided answering the question. They do not even realize that Fox Television, whose legal department ensures that it secures all licenses for the music used on "So You Think You Can Dance" to avoid lawsuits, is not concerned about a suit from choreographers whose works they transmit on television.

Thus, my hypothetical suit will not occur. As evidenced by the action of the fans, most members of the hip-hop dance community may not even know about copyright protection. Until dance's most recognized choreographers start to enforce their copyright, all choreographers (especially the average, less known choreographers) will not be able to fulfill their earning potential.

The State of Copyright Protection for Choreographic Works in General

Using copyright law is an excellent tool because it assists most who devote their time to creating art to reap the financial benefits of their works. While copyright protection can serve well other artistic industries, the law as it stands does not help most choreographers. In essence, average choreographers encounter hurdles from the moment they attempt to secure copyright protection to when they file infringement suits because of the lack of clear standards from the judiciary as to the boundaries of their copyrights.

How is the state of copyright protection and choreography? Currently, the two are not dancing in unison.

November 11, 2011

California Resale Royalties Act

By Stacy Lefkowitz Brown

On October 18th artists Chuck Close, Laddie John Dill and the estate of Sculptor Robert Graham sued Sotheby's, Christies and Ebay seeking damages for the nonpayment of royalties under the California Resale Royalties Act (CRRA). The complaint also seeks punitive damages and appropriate injunctive and declaratory relief to ensure compliance with the CRRA in the future.

The California Resale Royalties Act and Caselaw

The CRRA effectively codifies the French concept of droit de suite, in which an artist retains the right to an economic interest in the sale proceeds of an artwork for transactions after the initial sale. It requires that a seller pay a 5% royalty to an artist for the resale of a work of fine art defined as a painting, drawing, sculpture or an original work of art in glass, where the seller resides in California or the sale takes place in California, and the artist is a U.S. citizen, or has been a California resident for at least 2 years at the time of the sale. (Ca. Civil Code § 986.) The royalty is to be paid within 90 days of the sale if the sale occurs during the artist's lifetime, or to an artist's legal heirs up to 20 years after the artist's death. (Id.) If the seller cannot locate the artist, the royalty fee goes to the California Arts Council. (Id.)

The CRRA does not apply to the initial sale of the work of art by the artist where the artist holds the legal title to the work at the time of the sale. (Id.) It also does not require a royalty where the initial purchaser is an art dealer who then resells the work of art to another art dealer within 10 years of the initial purchase. (Id.) Finally, the CRRA does not apply to stained glass attached to real property upon the sale or transfer of the property to which it is attached. (Id.)

The CRRA has been the focus of legal controversy in the past, withstanding Constitutional challenges on the grounds of Preemption and violations of Due Process and the Contracts Clause. The preemption issue was addressed most recently in Baby Moose Drawings v. Dean Valentine. There, the assignees of artist Mark Grothjahn's royalty rights sued a dealer to collect the 5% royalty due under the CRRA. (Baby Moose Drawings, Inc. v. Dean Valentine et al., 2011 U.S. Dist. LEXIS 72583.) The California District Court addressed the issue of preemption when the plaintiff moved to remand the case to the California State Court in response to the defendant's removal of the case to federal court. (Id.) The District Court held that the California state court was the appropriate venue as the federal court did not have original jurisdiction. (Id at 12.) A federal court has original jurisdiction over ". . .any civil action arising under any Act of Congress related to . . . copyrights." (Id at 1.) The defendant claimed that removal to federal court was justified because the Copyright Act preempted the CRRA. (Id at 6.) The court disagreed, stating that the Copyright Act did not preempt the CRRA, because the 5% royalty added an extra element of protection to artists. (Id at 8.) This extra element did not "infringe upon the exclusive rights provided by the Copy right Act." (Id.) Similarly, the "royalty right on resale amounts to artists is qualitatively different from the rights granted to copyright holders under the Copyright Act." (Id at 9.) Further, the court looked to Congressional intent to determine that the CRRA did not interfere with the federal law. Specifically, the court noted a Judiciary Committee report on Amendments to the Copyright Act in 1990, which stated:

[s]tate artists' rights laws that grant rights not equivalent to those accorded under the proposed law are not preempted, even when they relate to works covered by [the Copyright Act]. For example, the law will not preempt a cause of action for . . . a violation of a right to a resale royalty." (Id at 10. Emphasis added.)

Preemption was also at issue in Morseburg v. Babylon, which was brought as a test case for the CRRA. (Morseburg v. Babylon, 621 F.2d 972 (1980).) There, an art dealer sued the California Council for the Arts claiming that the 1909 Copyright Act preempted the CRRA. (Id at 975.) He argued that the CRRA interfered with federal law because it "impaired" his ability to "vend" a work of art and restricted the transfer of a work of art under the 1909 Act. (Id.) Morseburg relied on Sections 1 and 27 of the 1909 Act, which provided in Section 1 that "Any person entitled thereto . . . shall have the exclusive right: (1) to print, reprint, publish, copy and vend the copyrighted work." Section 27 stated, "Nothing in this title shall be deemed to forbid, prevent or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained." (Id.) The Ninth Circuit held that the CRRA was not preempted by the 1909 Act because Congress had not intended to occupy the field, inasmuch as "Congress had evidenced no intent, either expressly, or impliedly, to bar the states from exercising their power." (Id at 977.) Notably, the Court opined that CRRA did not occupy the area of the 1909 Act and that CRRA could coexist and "function harmoniously rather than discordantly" with the 1909 Act. (Id). Neither did the Court view the CRRA as conflicting with the federal law, because nothing in the CRRA technically restricted the transfer of the works. (Id at 978). The Court reasoned that the CRRA did not require a lien on the work of art to secure the royalty, "nor is the buyer made secondarily liable for the royalty." (Id.) However, the Court acknowledged that the CRRA may have the effect of slowing down the marketplace, as it surmised that dealers and collectors may be more inclined to hold onto artworks for a longer period of time before resale. (Id.)

The Court then addressed the Contracts Clause issue. It stated that not all impairments of contracts are improper when serving a public need for the impairment. (Id at 979.) The Court then ruled that the CCRA did not violate the Contracts Clause because the impairment it caused to Morseburg's contract was not severe and served a "broad, generalized economic or social purpose." (Id.) Morseburg similarly fell short on his Due Process Argument in which he argued that the royalty required by the CRRA deprived him of property without due process. (Id.) The Court was not moved, as it did not find the acts of the legislature which adjusted the "burdens and benefits of economic life" to be arbitrary or capricious. (Id.)

A Federal Law's Time Has Come?

All the media attention these suits have garnered begs the question, is a federal law conferring resale royalty rights to artists an idea whose time has come? Although Senator Kennedy tried and failed to incorporate such a right into the Visual Artists Rights Act in 1987, there is new life for resale royalties in the form of a Bill sponsored by Senator Cole of Wisconsin. This Bill has the backing of The Artist Rights Society (ARS), an organization that monitors copyrights and licensing for over 50,000 artists worldwide, which has been lobbying for a federal version of the CRRA over the past year. The Bill is also championed by Bruce Lehman, former Commissioner of the United States Patent and Trademarks Office, and has the support of numerous artists, including Frank Stella, an ARS member. Federal resale royalty legislation on artworks would effectively level the playing field of visual artists with other artists who enjoy Copyright status; for example, authors, performers and musicians who receive royalties for each successive use of their work. However, such legislation may be viewed as more of a tax on artworks and may even work to the detriment of up and coming (read -- starving and/or struggling) artists, because collectors, curators, auction houses and dealers who make the market for these artists may be more likely to hold onto works for longer periods of time. Already established or famous artists are not likely to suffer from this, and in fact, may be the primary beneficiaries of any federal resale royalty law, since their works are already sought after and highly desirable in the marketplace. A federal resale royalty would also have administrative costs attached to it (unless built into the royalty) that dealers and auctions houses would most likely pass onto either the purchaser or seller of the art, creating another layer of cost to do business in the art world.

The Europeans Are Doing It

If the time for a federal resale royalty has indeed arrived, then Legislators may look to some of the European models to help determine what might be appropriate in the United States. As of 2006, the European Union required member states to implement an artist resale royalty (ARR) on artwork sold after the initial sale. Different member states treat this tax differently. The UK, in particular, uses a sliding scale, starting at 4% of the resale price to .25% for prices over € 500,000. In addition, when the ARR came into effect in 2006 in the UK, it only benefitted living artists. However, in January 2012, the ARR will go into effect there for deceased artists as well. In France, the ARR is 3% and in Germany 5%. Auction houses are aware of the ARR, and currently demarcate works which are subject to ARR in auction catalogues. This may not bode well for Sotheby's and Christies, if the allegations in the complaint are true, that they do not make the same or similar demarcation for works in their catalogues subject to CRRA, especially since the complaint accuses the auction houses of "an intentional election to flout" the law. (2011 WL 4947397 (C.D.Cal) (Trial Pleading).)

Stacy Lefkowitz Brown is a portrait artist and an attorney admitted to practice in the State of New York. She can be reached via email at stacylefkowitz@gmail.com.


January 21, 2012

Is It Just Me? Federal Magistrate Invalidates Federal Registration for "We Not Me" Trademark

By Gordon M. Daniell

Giving designers and practitioners alike an example of the phrase "say what you mean, and mean what you say," a Federal Magistrate in the Southern District of Oregon granted summary judgment for the Defendants (Adidas, The NBA, The Boston Celtics Basketball Team and Kevin Garnet); voiding an attorney's registered trademark for the phrase "We Not Me" for use on clothing, because the attorney failed to demonstrate a bona fide intent to use the phrase on the all of the goods listed on his application for federal trademark registration. Yet all was not lost for the Plaintiff, as Judge Paul Papak found that the Plaintiff had used the phrase in a trademark sense on hats and t-shirts, and could proceed on this ground.

For those in the Fashion, Apparel and Trademark worlds, the case is useful for two reasons: 1)It serves as a reminder to Trademark practitioners to ask clients about what their intentions are with the marks, and 2) to make clients aware of the dangers of failing to properly account for intended uses. For designers, it gives an excellent guide for claiming rights through use of a company's trademark outside of the garment's label or hang tag.

For Practitioners, a Cautionary Tale

As initially reported in the New York Law Journal (http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202537395046), the case revolves around "Naperville's Idea Man" W. Brand Bobsky, an attorney, real estate broker, and philanthropist in Naperville, IL. (http://www.brandrealtyco.com/about.cfm) Bobsky first developed the phrase "We Not Me" in 2000, and throughout the next several years, took steps to bring the concept to a wide audience. He printed the phrase on lapel pins, key chains, beer cups, and encouraged its use by celebrities, including Regis Philbin and Oprah Winfrey. Bobsky filed for Federal Trademark registration in 2004, under the "INTENT TO USE" ("ITU") section of the Lanham Act, which allows applicants with a bona fide intent to use the mark in commerce on goods or services to file for protection based on that intent. The application claimed an ITU on several types of products initially, but was amended after Bobsky, seeking to enforce his rights in "WE NOT ME", was threatened with a fraud claim by Adidas' Inhouse Counsel. Amended, the claim extended only to hats. He filed a second ITU application, this time including "hats, clothing namely shirts and sandals." He continued to use the mark on hats, as well as on the sleeve of shirts and on sandals.

Judge Papak voided Bobsky's claims to the first application, ab initio because Bobsky could not provide or show through testimony that he intended to use the mark in commerce on all of the goods listed in either of the applications. Citing case-law as well as McCarthy on Trademarks, the court noted that proving intent to use a mark in commerce commonly requires a written "plan of action", and that statements of subjective intent are not sufficient in themselves to prove intent. The court noted further that, without that documentation, the burden shifts to the applicant to show why those documents do not exist. Bobsky could not produce a plan of action, and testified that he thought the list of goods in the first application "came with the territory." The court found further that even though Bobsky had used the mark on hats in the second registration, he could not show that he had intended to use the mark on all of the goods listed. Again turning to Bobsky's testimony, Judge Papak ruled that because the applicant must have a bona fide intent to use the goods on all of the goods or services listed in the application, and Bobsky could not show that he did (and testified even that he did not), the second application was also ruled void ab initio.

This creates a red flag for practitioners filing trademarks on behalf of their clients. Taking the time to consult with qualified Trademark counsel regarding the client's marks and mark strategy will pay dividends should the mark come to litigation. Practitioners should ask the hard questions about whether, how, and on what the client intends to use the mark, and should make sure to counsel the client that he/she/it should retain all business plans, minutes of meetings, and emails, which could later be used to prove intent.

For Designers, the Gift that Keeps on Giving

Clearly, Judge Papak meant his December 29th opinion to be a holiday gift to those in the world of Design and Apparel. The second half of his opinion provides an easy to understand discussion of how a designer may use its logo on clothing as a mark, without its becoming a merely "ornamental design."

Despite the registrations for "We Not Me" having been found void ab initio, the phrase does appear on hats as well as shirts and sandals. Thus, assuming the phrase is used as a trademark on those goods, Bobsky would be able to continue in his claim against Adidas et. al. under the Lanham Act.

The court turned its analysis to whether Bobsky had engaged in "trademark use." Unfortunately, not everything that appears on a label may receive trademark protection. Those rights come from its use to identify the product, as something exclusive of all other products in the market. This type of use must exist in order to find trademark infringement. To make things more complicated, designs may serve as ornamentation, but also as a trademark. Putting a mark or logo on garments that someone else produces can constitute trademark use; and the question of whether or not the mark/logo/design is used as a trademark will be one of fact. There is no specific place where one must put one's logo, and even putting the logo across the front of the garment (see NFL, NCAA, NASCAR, or the U.S. Army, for example) can still create trademark use as long as it identifies the logo's owner. Citing the Trademark Manual of Examining Procedure, Judge Papak noted that "the size, location, dominance and significance of the alleged mark as applied to the goods are all factors which figure prominently in the determination of whether it also serves as an indication of origin".

Bobsky used the phrase in one small spot on the sleeve of his shirts bearing the ® symbol of a registered trademark, and another medium sized logo over the breast. His use on hats was a similar, slightly larger logo relative to the overall size on the rear of the hat, with the logo on the front. Judge Papak found an issue of fact existed as to whether the use in question was enough to constitute "trademark use." The sandals found less success, as the logo was the only ornamentation, and was much larger relative to the size of the sandals, and possessed no ® symbol.

For Designers, this case offers some guidelines of using a logo outside of its common place on a tag buried at the back of a garment. Trademark rights may be had, even if the logo serves a decoration, as long as it also serves to identify the designer's brand. To suggest source, rather than be a nice design, the mark must be kept relatively small, should have an ® or "TM" symbol, and should not be intertwined with a design, or included in a pattern that covers the entire garment. Think of it as putting the tag on the outside or using it like a corporate polo-style shirt. The logo is there, but isn't there for its design qualities.

The case number is CV IO-630-PK.

January 30, 2012

Arts Day in Albany - February 14th

On Tuesday, February 14, New York arts groups statewide will join together for Arts Day in Albany.

This is an important opportunity for artists, managers, and counsel to meet NYS representatives and help make the case for State funding. The 2012-2013 executive budget released last week recommends $37.7 million in total funding for the New York State Council on the Arts (NYSCA), a $1.2 million decrease from the budget for 2011-2012.

For more information, including registration, please visit http://www.dancenyc.org/advocacy/id=108.

February 1, 2012

Use of Art Images in Gallery and Auction Catalogues: Copyright Minefield and Practical Advice

By Barry Werbin

A prominent NYC art gallery is preparing for a show highlighting a new exhibition of known and upcoming artists, some of whom are alive and others recently deceased. In preparing the show's catalogue, which will not be sold publicly, the gallery intends, as is long-standing custom, to include high-quality photographs of all the works in the exhibition. Most photos are obtained from the living artists themselves, or from the estates or trusts that control the underlying copyrights and reproduction rights of the deceased artists' works. In a few cases, however, the gallery will need to take its own photos. As a courtesy gesture, it intends to ask for approvals to do so from these few artists or their representatives.

A problem arises, however, when a deceased artist's administering trust questions the provenance of one of that artist's pieces in the exhibition and refuses to grant permission for the gallery to photograph any of the works for use in the catalogue or for any other purpose in connection with the exhibition. Can the gallery nevertheless take photos of these works and use them in its catalogue, which will not be sold or posted online but only given to attendees at the exhibition? Does it a make a difference if the catalogues will be sold or made available digitally on the gallery's website?

As the issue revolves around copying and displaying images of the original pieces of art, the answer should lie in several provisions of the U.S. Copyright Act of 1976 (the "Act"). But while providing critical guidance, the Act may not entirely provide a clear-cut answer.

Copyright Protection of Artworks

Copyright protects original works of authorship from the moment of their creation. In the case of an individual artist, the artist owns the copyrights of his or her original artworks, and the copyright term lasts for the life of the artist (the "author") plus another 70 years after his or her death. Section 106 of the Act reserves to the copyright owner specifically enumerated "exclusive" rights, which include (as relates to art) the rights of reproduction (copying), public display and distribution (by sale/assignment, rental, lease/license or lending), and the right to prepare derivative works based on the original. Notwithstanding these exclusive rights granted to the copyright owner, the Act carves out two important exceptions related to what is referred to as the "first sale doctrine" and, particularly germane to artworks, a limited display right granted to an "owner" of an original work. Before discussing these exceptions, however, it is important to recognize the significant difference between ownership of legal title and ownership of copyright.

Legal Title vs. Copyright

The purchaser of an original work of art only acquires legal title to that one original work; the underlying copyright is not transferred. Instead, copyright remains with the artist or his or her successor in interest. Thus, a consignor seller who owns an original work of art cannot grant to a gallery or auction house any rights greater than what that owner has (bare legal title) with no right to exercise any of the exclusive rights reserved to the copyright owner under Section 106 of the Act.

First Sale Doctrine

Without the statutory exceptions, there could never be a legal art exhibition or sale, as either would invoke the exclusively reserved "display" and "distribution" rights of the copyright holder. In its wisdom, however, Congress included two key exceptions in the Act that facilitate the resale of copyrighted works and grant a limited "display" right. These two exceptions are largely responsible for the legal existence of galleries, auction houses, and museums that display and sell works still under copyright.

First, Section 109, or the "first sale doctrine," provides that:

Notwithstanding the provisions of section 106(3) [the exclusive distribution right], the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Thus, someone who owns an original work of authorship protected by copyright (referred to as a "particular copy" in Section 109) is free to sell it. That particular single work may then be resold innumerable times, without limitation, including by a gallery or auction house that is "authorized" by that owner to conduct a sale. The first sale doctrine is responsible for all aftermarket sales of copyrighted materials, including art, used records, music CDs, and books.

But what about the display right that also is exclusive to the copyright owner? Section 101 of the Act defines "display" as follows: "To 'display' a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process...."

While Section 106 reserves to the copyright owner the exclusive right to display a work publicly and the right of reproduction, Section 109(c) carves out a special limited exception (tied to the first sale doctrine) for the display of a copy of a work rightfully owned:

(c) Notwithstanding the provisions of section 106(5) [the exclusive display right], the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located."

This Section is responsible for permitting all "displays" of copyright-protected art by galleries, auction houses, and museums. But Section 109(c) does not on its face permit any copying of a "particular" work, including the taking of any photographs and publishing them in a catalogue or on a website. This exception is further limited to a display only to "viewers present at the place where the copy is located."

The limited scope of the Section 109(c) exception seems pretty clear on its face. Nothing in Section 109(c) expressly permits our hypothetical gallery to take its own photos and use them in a catalogue in connection with an exhibition. Thus, the gallery's legal fallback becomes the complex and frequently litigated concept of "fair use" under Section 107 of the Act.

Fair Use Doctrine

The "fair use doctrine" has a long, complex, and tumultuous history in the courts that is beyond the scope of this article. In brief, the doctrine is intended to permit certain uses of copyright-protected materials as exceptions to what otherwise would be infringing activity. Section 107, which codifies the doctrine, provides a non-exclusive list of such permissible uses that are then subject to a non-exhaustive list of four specific criteria courts are required to address to determine whether "fair use" exists. The relevant text of Section 107 is rather brief:

[T]he fair use of a copyrighted work, including such use by reproduction in copies ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.


Taking photos of artworks for use in an exhibition or auction catalogue does not fall squarely within the above-enumerated fair use examples, as such copying and display do not facially qualify as criticism, comment, news, teaching, research, or parody. (Although catalogues ultimately may be used for reference and research that is typically not the original reason a catalogue is created.) Section 107 does not make express exception for making copies for "descriptive" or "display" uses (i.e., to simply describe and display images of what is in an exhibition). This contrasts with U.S. trademark law, which does accept a "descriptiveness" defense where a third party's trademark is used merely descriptively and not in a trademark sense. The delineated statutory examples, however, are just that--examples--as the statute's preamble refers to "the fair use of a copyrighted work, including such use by reproduction in copies ... for purposes such as...." Thus, there is room for courts to find that copying for other purposes that are consistent with the policies underlying Sections 107 and 109(c) also qualifies as fair use. Arguably, such use is also commercial in nature if the catalogue will be sold or otherwise used to market an exhibition or auction at which the art will be offered for sale; but the existence of some commercial aspect of a work has not precluded a fair use finding in all cases because it is just one of the primary factors to be considered by a court.

The fourth fair use factor is particularly significant because taking photos of art for use in a catalogue will likely not have any negative effect "upon the potential market for or value of the copyrighted work." But the four listed factors also must be balanced by the courts. Even where one factor might win the day, the others may be more weighted either against or in favor of fair use, and courts must not lose sight of the fundamental principles underlying the fair use doctrine.

To complicate matters, in recent years courts have also read into the fair use statute a requirement that under the first factor ("purpose and character of the use"), to be "fair" and thus not infringing, a use must also be "transformative." This concept has become controversial as courts have disagreed over what that term means. Essentially, the "transformative" concept looks at the use made of the copy and whether it is for a purpose different from that of the original work. As the U.S. Supreme Court noted in Campbell v. Acuff-Rose Music, Inc. (510 U.S. 569, 579 (1994)), a work is generally deemed "transformative" when the new work does not "merely supersede the objects of the original creation," but rather "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." The non-exclusive permissible uses listed in Section 107, such as for commentary on or criticism of a copyrighted work (which includes parody), are themselves "transformative" uses.

As another example, Google has successfully defended its image search feature under a fair use argument. Google's image search results display digital thumbnail images, which are reduced, lower-resolution versions of full-sized images stored on third-party computers. The image search results are generated in response to end users' search queries for artwork, photos, and other graphical works on the Internet, thereby transforming the thumbnail copies displayed in the search results into a research tool. Google also generates advertising revenues by tying sponsored third-party ads to certain search results. The Ninth Circuit Court of Appeals ruled on this issue in a key 2007 decision, where it found that "the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumbnails in this case." (Perfect 10, Inc. v. Amazon.com and Google (amended opinion), 508 F.3d 1146 (9th Cir. 2007)).

Applying the Law

Back, then, to our hypothetical exhibition catalogue. Is photographing artwork to display in an exhibition or auction catalogue "transformative"? Does it satisfy the statutory fair use factors? Can an analogy be drawn to the Google image "search" service? Under a fair use paradigm, should the first sale doctrine and the "display" exception contained in Section 109 of the Act, by implication to carry out their intended purposes, permit a "descriptive" use of art photographs simply to describe the works in an auction or gallery exhibition catalogue? Denying such limited copying and display right arguably undermines the purpose of the display exception in Section 109(c), which facilitates auctions and exhibitions, because without it the ability to promote such sales and exhibitions is severely compromised. After all, this is visual art.

These are as of yet undecided legal questions, but there are cogent arguments that such use does not meet the fair use criteria under Section 107 as it is written, because such use is essentially "commercial," the entire image i s copied (photographed), and the copy is not being used for a "transformative" purpose. On the other hand, an enticing argument can be made that, while it may not truly be "transformative," when a photo is being used solely to identify the art in an auction or exhibition (where such display is authorized by Section 109(c) of the Act), the use of the photo in a catalogue for such limited purpose is merely incidental to a permissible use, and only improves the potential market for the work. It should therefore be considered fair use. But being the test case in the courts would be protracted and expensive.

Galleries and auction houses have always printed beautiful high-resolution catalogues with images of art not in the public domain. But the issue of seeking advance permissions rears its ugly head when an artist's representative objects to such photographic copying because, for example, the representative does not accept the provenance. Moreover, because the owner of an artwork seeking to sell it (unless it's the actual artist or his or her legal representative) owns only that "copy," and does not own the underlying copyright rights, the owner cannot legally grant a gallery or auction house permission to photograph the work from a copyright standpoint.

With all this in mind, the conservative approach would be to seek permission to photograph from the rights owner, his or her agent, or a clearinghouse, and to always do so if the image will be used on the cover of a catalogue or prominently in advertisements or marketing materials to promote an auction or exhibition. In most cases, this should not be an issue because, as a practical matter, most artists or their representatives are happy with this practice as it promotes the works and creates and maintains underlying markets for the art. But in the case of a deceased artist without an estate representative or non-U.S. works under copyright, for example, licensors or clearinghouses will need to be contacted for permission, which likely will require payment of some license fee tied to the notoriety of the artist, scope of use, and number of catalogues to be printed.

Real-World Examples

Gagosian Gallery, for example, always asks living artists for permission to photograph works going into its exhibitions for use in its catalogues. Andrea Crane, a Director at Gagosian Gallery in New York, says that doing shows with living artists requires a "close collaboration with the artists," who are pleased to cooperate. "The catalogues tend to benefit the artist by complementing the artwork," notes Alison McDonald, Gagosian's Director of Publications.
According to Ms. McDonald, Gagosian often deals with deceased artists' estates, which typically grant rights to photograph their artists' works for use in catalogues. In cases where estates cannot be contacted or don't exist, says Ms. McDonald, permissions are sought, typically for a fee, from artists' publishers and clearinghouses, such as Visual Artists and Galleries Association (VAGA), Artists Rights Society (ARS), and the Design and Artists Copyright Society (DACS). If consent cannot be obtained, an image of the artwork is not used.

Likewise, Christies auction house "always obtains permissions or licenses to use art images on the covers of its catalogues and in advertising collateral," says Karen Gray, Christies' General Counsel. Ms. Gray notes, however, that "there is a compelling fair use argument for using smaller photos of art tied to the applicable lot description within a particular catalogue, as this is consistent with the policy under Section 109(c), which permits display of the art without the copyright owner's permission, and principles of fair use." Catalogues retained for archival purposes (both in hard copy and digitally on Christies' website) serve a research and reference purpose, which falls more squarely within the traditional scope of fair use.

Conclusion

What guidance should gallery owners and auction house directors take away from all this? Apart from consulting with intellectual property legal counsel, prudence dictates taking a conservative and practical approach, especially in these litigious days in the art world. Some well-funded gallery or auction house may one day pick the fair use catalogue fight, but it will be expensive and protracted, and the outcome will be uncertain.

Barry Werbin is a partner and Chair of the Intellectual Property Practice at Herrick, Feinstein, LLP. This article was originally published in his firm's Art & Advocacy newsletter, Fall 2011, Vol.10.

Use of Art Images in Gallery and Auction Catalogues: Copyright Minefield and Practical Advice

By Barry Werbin

A prominent NYC art gallery is preparing for a show highlighting a new exhibition of known and upcoming artists, some of whom are alive and others recently deceased. In preparing the show's catalogue, which will not be sold publicly, the gallery intends, as is long-standing custom, to include high-quality photographs of all the works in the exhibition. Most photos are obtained from the living artists themselves, or from the estates or trusts that control the underlying copyrights and reproduction rights of the deceased artists' works. In a few cases, however, the gallery will need to take its own photos. As a courtesy gesture, it intends to ask for approvals to do so from these few artists or their representatives.

A problem arises, however, when a deceased artist's administering trust questions the provenance of one of that artist's pieces in the exhibition and refuses to grant permission for the gallery to photograph any of the works for use in the catalogue or for any other purpose in connection with the exhibition. Can the gallery nevertheless take photos of these works and use them in its catalogue, which will not be sold or posted online but only given to attendees at the exhibition? Does it a make a difference if the catalogues will be sold or made available digitally on the gallery's website?

As the issue revolves around copying and displaying images of the original pieces of art, the answer should lie in several provisions of the U.S. Copyright Act of 1976 (the "Act"). But while providing critical guidance, the Act may not entirely provide a clear-cut answer.

Copyright Protection of Artworks

Copyright protects original works of authorship from the moment of their creation. In the case of an individual artist, the artist owns the copyrights of his or her original artworks, and the copyright term lasts for the life of the artist (the "author") plus another 70 years after his or her death. Section 106 of the Act reserves to the copyright owner specifically enumerated "exclusive" rights, which include (as relates to art) the rights of reproduction (copying), public display and distribution (by sale/assignment, rental, lease/license or lending), and the right to prepare derivative works based on the original. Notwithstanding these exclusive rights granted to the copyright owner, the Act carves out two important exceptions related to what is referred to as the "first sale doctrine" and, particularly germane to artworks, a limited display right granted to an "owner" of an original work. Before discussing these exceptions, however, it is important to recognize the significant difference between ownership of legal title and ownership of copyright.

Legal Title vs. Copyright

The purchaser of an original work of art only acquires legal title to that one original work; the underlying copyright is not transferred. Instead, copyright remains with the artist or his or her successor in interest. Thus, a consignor seller who owns an original work of art cannot grant to a gallery or auction house any rights greater than what that owner has (bare legal title) with no right to exercise any of the exclusive rights reserved to the copyright owner under Section 106 of the Act.

First Sale Doctrine

Without the statutory exceptions, there could never be a legal art exhibition or sale, as either would invoke the exclusively reserved "display" and "distribution" rights of the copyright holder. In its wisdom, however, Congress included two key exceptions in the Act that facilitate the resale of copyrighted works and grant a limited "display" right. These two exceptions are largely responsible for the legal existence of galleries, auction houses, and museums that display and sell works still under copyright.

First, Section 109, or the "first sale doctrine," provides that:

Notwithstanding the provisions of section 106(3) [the exclusive distribution right], the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Thus, someone who owns an original work of authorship protected by copyright (referred to as a "particular copy" in Section 109) is free to sell it. That particular single work may then be resold innumerable times, without limitation, including by a gallery or auction house that is "authorized" by that owner to conduct a sale. The first sale doctrine is responsible for all aftermarket sales of copyrighted materials, including art, used records, music CDs, and books.

But what about the display right that also is exclusive to the copyright owner? Section 101 of the Act defines "display" as follows: "To 'display' a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process...."

While Section 106 reserves to the copyright owner the exclusive right to display a work publicly and the right of reproduction, Section 109(c) carves out a special limited exception (tied to the first sale doctrine) for the display of a copy of a work rightfully owned:

(c) Notwithstanding the provisions of section 106(5) [the exclusive display right], the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located."

This Section is responsible for permitting all "displays" of copyright-protected art by galleries, auction houses, and museums. But Section 109(c) does not on its face permit any copying of a "particular" work, including the taking of any photographs and publishing them in a catalogue or on a website. This exception is further limited to a display only to "viewers present at the place where the copy is located."

The limited scope of the Section 109(c) exception seems pretty clear on its face. Nothing in Section 109(c) expressly permits our hypothetical gallery to take its own photos and use them in a catalogue in connection with an exhibition. Thus, the gallery's legal fallback becomes the complex and frequently litigated concept of "fair use" under Section 107 of the Act.

Fair Use Doctrine

The "fair use doctrine" has a long, complex, and tumultuous history in the courts that is beyond the scope of this article. In brief, the doctrine is intended to permit certain uses of copyright-protected materials as exceptions to what otherwise would be infringing activity. Section 107, which codifies the doctrine, provides a non-exclusive list of such permissible uses that are then subject to a non-exhaustive list of four specific criteria courts are required to address to determine whether "fair use" exists. The relevant text of Section 107 is rather brief:

[T]he fair use of a copyrighted work, including such use by reproduction in copies ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Taking photos of artworks for use in an exhibition or auction catalogue does not fall squarely within the above-enumerated fair use examples, as such copying and display do not facially qualify as criticism, comment, news, teaching, research, or parody. (Although catalogues ultimately may be used for reference and research that is typically not the original reason a catalogue is created.) Section 107 does not make express exception for making copies for "descriptive" or "display" uses (i.e., to simply describe and display images of what is in an exhibition). This contrasts with U.S. trademark law, which does accept a "descriptiveness" defense where a third party's trademark is used merely descriptively and not in a trademark sense. The delineated statutory examples, however, are just that--examples--as the statute's preamble refers to "the fair use of a copyrighted work, including such use by reproduction in copies ... for purposes such as...." Thus, there is room for courts to find that copying for other purposes that are consistent with the policies underlying Sections 107 and 109(c) also qualifies as fair use. Arguably, such use is also commercial in nature if the catalogue will be sold or otherwise used to market an exhibition or auction at which the art will be offered for sale; but the existence of some commercial aspect of a work has not precluded a fair use finding in all cases because it is just one of the primary factors to be considered by a court.

The fourth fair use factor is particularly significant because taking photos of art for use in a catalogue will likely not have any negative effect "upon the potential market for or value of the copyrighted work." But the four listed factors also must be balanced by the courts. Even where one factor might win the day, the others may be more weighted either against or in favor of fair use, and courts must not lose sight of the fundamental principles underlying the fair use doctrine.

To complicate matters, in recent years courts have also read into the fair use statute a requirement that under the first factor ("purpose and character of the use"), to be "fair" and thus not infringing, a use must also be "transformative." This concept has become controversial as courts have disagreed over what that term means. Essentially, the "transformative" concept looks at the use made of the copy and whether it is for a purpose different from that of the original work. As the U.S. Supreme Court noted in Campbell v. Acuff-Rose Music, Inc. (510 U.S. 569, 579 (1994)), a work is generally deemed "transformative" when the new work does not "merely supersede the objects of the original creation," but rather "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." The non-exclusive permissible uses listed in Section 107, such as for commentary on or criticism of a copyrighted work (which includes parody), are themselves "transformative" uses.

As another example, Google has successfully defended its image search feature under a fair use argument. Google's image search results display digital thumbnail images, which are reduced, lower-resolution versions of full-sized images stored on third-party computers. The image search results are generated in response to end users' search queries for artwork, photos, and other graphical works on the Internet, thereby transforming the thumbnail copies displayed in the search results into a research tool. Google also generates advertising revenues by tying sponsored third-party ads to certain search results. The Ninth Circuit Court of Appeals ruled on this issue in a key 2007 decision, where it found that "the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumbnails in this case." (Perfect 10, Inc. v. Amazon.com and Google (amended opinion), 508 F.3d 1146 (9th Cir. 2007)).

Applying the Law

Back, then, to our hypothetical exhibition catalogue. Is photographing artwork to display in an exhibition or auction catalogue "transformative"? Does it satisfy the statutory fair use factors? Can an analogy be drawn to the Google image "search" service? Under a fair use paradigm, should the first sale doctrine and the "display" exception contained in Section 109 of the Act, by implication to carry out their intended purposes, permit a "descriptive" use of art photographs simply to describe the works in an auction or gallery exhibition catalogue? Denying such limited copying and display right arguably undermines the purpose of the display exception in Section 109(c), which facilitates auctions and exhibitions, because without it the ability to promote such sales and exhibitions is severely compromised. After all, this is visual art.

These are as of yet undecided legal questions, but there are cogent arguments that such use does not meet the fair use criteria under Section 107 as it is written, because such use is essentially "commercial," the entire image i s copied (photographed), and the copy is not being used for a "transformative" purpose. On the other hand, an enticing argument can be made that, while it may not truly be "transformative," when a photo is being used solely to identify the art in an auction or exhibition (where such display is authorized by Section 109(c) of the Act), the use of the photo in a catalogue for such limited purpose is merely incidental to a permissible use, and only improves the potential market for the work. It should therefore be considered fair use. But being the test case in the courts would be protracted and expensive.

Galleries and auction houses have always printed beautiful high-resolution catalogues with images of art not in the public domain. But the issue of seeking advance permissions rears its ugly head when an artist's representative objects to such photographic copying because, for example, the representative does not accept the provenance. Moreover, because the owner of an artwork seeking to sell it (unless it's the actual artist or his or her legal representative) owns only that "copy," and does not own the underlying copyright rights, the owner cannot legally grant a gallery or auction house permission to photograph the work from a copyright standpoint.

With all this in mind, the conservative approach would be to seek permission to photograph from the rights owner, his or her agent, or a clearinghouse, and to always do so if the image will be used on the cover of a catalogue or prominently in advertisements or marketing materials to promote an auction or exhibition. In most cases, this should not be an issue because, as a practical matter, most artists or their representatives are happy with this practice as it promotes the works and creates and maintains underlying markets for the art. But in the case of a deceased artist without an estate representative or non-U.S. works under copyright, for example, licensors or clearinghouses will need to be contacted for permission, which likely will require payment of some license fee tied to the notoriety of the artist, scope of use, and number of catalogues to be printed.

Real-World Examples

Gagosian Gallery, for example, always asks living artists for permission to photograph works going into its exhibitions for use in its catalogues. Andrea Crane, a Director at Gagosian Gallery in New York, says that doing shows with living artists requires a "close collaboration with the artists," who are pleased to cooperate. "The catalogues tend to benefit the artist by complementing the artwork," notes Alison McDonald, Gagosian's Director of Publications.According to Ms. McDonald, Gagosian often deals with deceased artists' estates, which typically grant rights to photograph their artists' works for use in catalogues. In cases where estates cannot be contacted or don't exist, says Ms. McDonald, permissions are sought, typically for a fee, from artists' publishers and clearinghouses, such as Visual Artists and Galleries Association (VAGA), Artists Rights Society (ARS), and the Design and Artists Copyright Society (DACS). If consent cannot be obtained, an image of the artwork is not used.

Likewise, Christies auction house "always obtains permissions or licenses to use art images on the covers of its catalogues and in advertising collateral," says Karen Gray, Christies' General Counsel. Ms. Gray notes, however, that "there is a compelling fair use argument for using smaller photos of art tied to the applicable lot description within a particular catalogue, as this is consistent with the policy under Section 109(c), which permits display of the art without the copyright owner's permission, and principles of fair use." Catalogues retained for archival purposes (both in hard copy and digitally on Christies' website) serve a research and reference purpose, which falls more squarely within the traditional scope of fair use.

Conclusion

What guidance should gallery owners and auction house directors take away from all this? Apart from consulting with intellectual property legal counsel, prudence dictates taking a conservative and practical approach, especially in these litigious days in the art world. Some well-funded gallery or auction house may one day pick the fair use catalogue fight, but it will be expensive and protracted, and the outcome will be uncertain.

Barry Werbin is a partner and Chair of the Intellectual Property Practice at Herrick, Feinstein, LLP. This article was originally published in his firm's Art & Advocacy newsletter, Fall 2011, Vol.10.

February 4, 2012

Arts Festival

BOOTSTRAP ARTS FESTIVAL ANNOUNCES FEBRUARY SCHEDULE OF EVENTS

Month Long Series of Performing, Literary, Visual and Media Arts Events Presented By Artspire and New York Foundation for the Arts

NEW YORK, NYC - The Bootstrap Arts Festival, the month long series of arts events presented by Artspire and New York Foundation for the Arts (NYFA), has released its preliminary schedule of exhibits and performances. Set to take place throughout February and across the five boroughs, the Bootstrap Festival includes performing, literary, visual and media arts events.

The Festival kicks off with an opening night reception at NYFA on February 3. The kick-off event features works and performances across a spectrum of media by a number of Artspire affiliated artists. The accompanying Boot Camp exhibition at NYFA runs from now through May, 2012.

The Bootstrap Arts Festival has emerged out of NYFA's on-going Artist as Entrepreneur Boot Camp, a program for arts professionals in all fields looking to focus on the business side of their creative practice. NYFA's Boot Camp is designed to help define concrete steps to building a business plan that can lead to greater financial security.

The first Bootstrap Arts Festival was held in November, 2010 and featured artists who had attended NYFA's Boot Camp. The 2012 festival continues and expands on that theme as it offers Boot Camp graduates venues and opportunities for exhibiting and/or performing their work.

Both Bootstrap and Boot Camp are key elements within NYFA's broad-based effort to provide a template for arts professionals that enables them to develop as entrepreneurs by offering support, education and resources. The most prominent tent pole initiatives within this ambitious plan are the recently launched Artspire.org and the new book The Profitable Artist (Skyhorse Publishing/Allworth Press).

Artspire.org is the new community website that empowers individual arts professionals and organizations anywhere in the country to support their work with tax-deductible contributions while building entrepreneurship and creating a robust social network of supporters. With Artspire, artists can leverage the dynamic power of crowdsourced funding to galvanize, tap into and expand their roster of followers, thus building sustained financial backing for their work.

The Profitable Artist is the first complete "how-to" guide to being a professional and profitable working artist. This handbook features techniques in the areas of strategic planning, financial management, marketing, fundraising, and legal rights and obligations, aimed to assist all arts professionals. Further closing the circle, many of the lessons in The Profitable Artist were first developed during NYFA Boot Camp. Some of the artists who have taken part in Boot Camp are also in the book.

The schedule of events to date include:

February 2 - 15
Tue - Fri, 3:30 pm - 8:30pm; Sat & Sun, 12 pm - 6 pm, or by appointment

Bootstrap Exhibition
Clemente Soto Velez Cultural & Education Center, Inc, Abrazo Gallery
107 Suffolk Street, 2nd Floor
New York, NY 10002

Featuring the works of 21 visual artists, including painters, sculptors, photographers, and video artists. An opening reception will be held on Thursday, February 2 from 6pm - 9pm.

Admission: Free


February 4
5:00 pm & 7:30 pm

Joyce SoHo,
155 Mercer Street
New York 10012

An Evening of Dance Featuring: Ephrat Asherie Dance, Trainor Dance (Caitlin Trainor), Sydnie L. Mosley Dances, SAWTOOTH dancers (Cristina Jasen), Shandoah Goldman. Reception to follow after 7:30pm performance.

Admission Price: $15
For tickets/reservations go to http://www.eventbrite.com/event/2735821917.


February 5, 2012
4:00 pm - 6:00 pm

Baruch Performing Arts Center,
Engelman Hall
55 Lexington Avenue, New York, NY

An Evening of Original Music Featuring: Gretchen Farrar, John Kamfonas, Eugene Marlow, Judith Sainte Croix. Reception to follow.

Admission Price: $10
For tickets, visit http://www.baruch.cuny.edu/bpac/calendar/event.php?id=774, or call the box office at (646) 312-5073.


February 7, 2012
7:30 pm

Clemente Soto Velez Cultural & Education Center, Inc.
107 Suffolk Street, 2nd Floor (Los Kabayitos Theater)
New York, NY 10002

Two Evenings of Dramatic Works (Night One) Featuring Laura Pruden, Rosanna Plasencia, Frances Lozada. Reception to follow.

Admission: Free
For reservations go to http://bootstraptheater1.eventbrite.com

February 9, 2012
7:00 pm

Clemente Soto Velez Cultural & Education Center, Inc.
107 Suffolk Street, 2nd Floor (Los KabayitosTheater)
New York, NY 10002

Two Evenings of Dramatic Works (Night Two) Featuring Katy Rubin, Craig Nobbs, LuAnn Adams, Michelle Chai. Reception to follow.

Admission: Free
For reservations go to http://bootstraptheater2.eventbrite.com


February 10 & 11, 2012
Time: 7:30 pm

UnionDocs
322 Union Avenue
Brooklyn, NY 11211
(718) 395-7902

Two Evenings of Entrepreneurs in Film. Includes a discussion with the filmmakers regarding entrepreneurial practices in filmmaking.
http://www.uniondocs.org/2012-02-10-nyfa-bootstrap-art-festival-1/

Night One (February 10, 2012): Featuring filmmakers Frances Lozada, Melissa Hacker, Michelle Chai and Isabel Sadurni.

Night Two (February 11, 2012): Featuring filmmakers Yunah Hong, Ama Birch, Lisa Crafts, Dempsey Rice and Melissa Hacker.
http://www.uniondocs.org/2012-02-11-nyfa-art-festival-2/

Admission Price: $9 suggested donation
For tickets/reservations go to www.uniondocs.org.


Wednesday, February 15, 2012
Time: 6:00pm - 9:00pm

NYFA
20 Jay Street, Suite 740
Brooklyn, NY 11201

Artist Talk and Tour: Visual artists in the NYFA exhibition speak about their work.

Admission: Free
For reservations go to http://bootstrapartist.eventbrite.com


Thursday, February 16, 2012
Time: 7:30pm

LaunchPad
721 Franklin Avenue
Brooklyn, NY 11238

An Evening of Literature featuring Katy Rubin (Concrete Justice), Ama Birch, Jennifer Cendaña Armas, and Hossannah Asuncion.

Admission Price: Free
For reservations go to http://bootstrapliterary.eventbrite.com


Friday, February 17, 2012
Time: 6:30pm - 8:00pm

EFA Project Space, a Program of the Elizabeth Foundation for the Arts
323 West 39th Street 3rd floor
NY, NY 10018
(212) 563-5855

An Evening of Interdisciplinary Work featuring John Kelly and Nora Ryan.

Admission Price: Free
For tickets/reservations go to http://bootstrapinterdisciplinary.eventbrite.com


February 18, 2012
7:30pm

Cumbe: Center for African and Diaspora Dance
558 Fulton Street, 2nd Floor (near Flatbush Ave.)
Brooklyn, NY 11217

A Celebration of Movement and Interdisciplinary Art featuring Nicola Iervasi, Artistic Director, Mare Nostrum Elements, Kayoko Nakajima, and Clark Jackson.

Admission Price: Donations gratefully accepted
For reservations go to http://bootstrapcelebration.eventbrite.com
The above schedule is subject to change.

Funding for this program is provided, in part, by the New York City Economic Development Corporation. Special thanks to Clemente Soto Velez Cultural & Education Center, Inc., The Elizabeth Foundation for the Arts, and LaunchPad, for the generous donation of their space.

For more information on the participants and their contributions, go to their website at www.bootstrapfestival.com, or see NYFA's webpage, www.nyfa.org.

About the New York Foundation for the Arts (NYFA)
The New York Foundation for the Arts (NYFA) was founded in 1971 to empower artists at critical stages in their creative lives. Each year it provides over $1 million in cash grants to individuals and small organizations. The NYFA Learning programs provide thousands of artists with professional development training and the website, http://www.nyfa.org, received over 1 million unique visitors last year and features information about more than 8,000 opportunities and resources available to artists in all disciplines.

February 9, 2012

Google Challenges Class

From the American Society of Media Photographers' Website:

Google Asks Court to Rule Against ASMP

Google has filed court documents challenging the standing of ASMP and the other associations as plaintiffs in the 2010 class action copyright infringement lawsuit filed over Google's unauthorized and massive scanning of library books and its related actions. Google argues that because of the requirements of copyright claims, plaintiffs must be actual rightsholders rather than associations acting on their behalf. It has also challenged the standing of the Authors Guild in its related lawsuit filed against Google in 2005.


http://asmp.org/news/current-news.html

May 25, 2012

California Resale Royalty Act

By Quinn Heraty

On May 17, 2012, the United States District Court for the Central District of California granted the joint motion of Sotheby's and Christie's to dismiss the claims against them, because the plaintiffs' claims were based on the California Resale Royalties Act (California Civil Code §986, http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=00001-01000&file=980-989, CRRA), which the court found to violate the Commerce Clause (U.S. Const. art I, §8, cl.3, http://pages.citebite.com/a9d5h3ltvtx, Commerce Clause).

The court's decision represents a victory for art auction houses and for art sellers who reside in California and a defeat for fine artists. However, the parties' respective victory and defeat may be short-lived, because the Equity for Visual Artists Act of 2011 (EVAA) was introduced in each house of Congress in December 2011 (S 2000, http://www.govtrack.us/congress/bills/112/s2000 / HR 3866, http://www.govtrack.us/congress/bills/112/hr3688). The EVAA, sponsored by Rep. Jerrold Nadler (D-NY) and Sen. Herb Kohl (D-WI), provides for a nationwide artist resale royalty on somewhat similar terms as the CRRA.

The CRRA provides fine artists with a droit de suite, or resale royalty right, which gives fine artists a right to a percentage of the sales price of the artist's work each time the work is resold. The CRRA mandates that the seller of a work of fine art (or the seller's agent) pay to the artist a resale royalty in the amount of 5% of the gross sales price of the work of fine art. This royalty requirement applies to both sales of fine art by residents of California and sales of fine art that take place in California (Cal. Civ. Code §986[a], http://pages.citebite.com/b9k5b4kjkkx). The CRRA exempts sales of fine art for less than $1,000 from the resale royalty provisions.

The statute defines a work of "fine art" as "an original painting, sculpture, or drawing, or an original work of art in glass" (Cal. Civ. Code §986[c][2], http://pages.citebite.com/w9o5x6nqios). For the purpose of the CRRA, an "artist" is defined as "the person who creates the work of fine art and who, at the time of resale, is a citizen of the United States, or a resident of [California] who has resided in [California] for a minimum of two years."

Sotheby's and Christie's argued that the CRRA (1) violates the Commerce Clause of the United States Constitution, (2) effects a "taking" of private property in violation of the constitutions of the United States and of California, and (3) is preempted by the Copyright Act of 1976.

The court, in applying the two-tiered analysis of Nat'l Collegiate Athletic Ass'n v. Miller (10 F.3d 633 (9th Cir. 1993), http://scholar.google.com/scholar_case?case=3708408270532117994) (Miller), found that the CRRA violates the Commerce Clause per se. The test in Miller required the court to inquire as to whether the CRRA "(1) directly regulates interstate commerce; (2) discriminates against interstate commerce; or (3) favors in-state economic interests over out-of-state interests." (Miller, 10 F3d at 638). "If it does any of those things, 'it violates the Commerce Clause per se, and we must strike it down without further inquiry. Id." As the court found that the statute violates the Commerce Clause, it did not reach the defendants' "takings" or "preemption" arguments.

The court held that the CRRA violated the Commerce Clause because the CRRA explicitly regulated applicable sales of art occurring wholly outside of California. The example of the "problematic reach" that the court used was one in which a California resident places a painting by a New York artist up for auction at Sotheby's in New York, and at the auction a New York resident purchases the painting for $1,000,000. In such a situation, the transaction that the CRRA regulates - the one between the New York auction house and the New York purchaser - occurs wholly in New York. Despite the fact that even the artist receiving the royalty is a New York resident, the CRRA reaches out to New York and regulates the transaction by mandating that Sotheby's (1) withhold $50,000 (i.e., 5% of the auction sale price); (2) locate the artist; and (3) remit the $50,000 to the New York artist. Should Sotheby's in New York fail to comply, the New York artist may bring a legal action against the seller's agent in New York under the CRRA to recover the applicable royalty (Cal. Civ. Code §986[a][3], http://pages.citebite.com/t9f5p5crvcg).

The court declined to sever the offending clause (Cal. Civ. Code §986, http://pages.citebite.com/w9g5j7ioaol) to save the rest of the statute because, in its review of the statute's legislative history, the court found that the legislature intended for the statute to reach past commerce occurring within California. The initial draft of the statute applied only to "an original work of fine art sold at an auction or by a gallery or museum in California." The legislature then amended the bill to apply to sales of fine art where "the buyer or the seller resides in California or the sales takes place in California." The legislature then amended the bill again, deleting the reference to California buyers but continuing to require a resale royalty for sales outside of California where the seller resides in California. The court stated: "[T]he reason for the legislature's decision seems obvious: were the CRRA to apply only to sales occurring in California, the art market would surely have fled the state to avoid paying the 5% royalty."

Striking down the entire legislation is obviously a blow to fine artists and the decision will likely be appealed to the Ninth Circuit Court of Appeals. The plaintiffs' attorney, Eric George, was quoted in the Los Angeles Times as saying, "For a single federal judge to invalidate the law, more than 35 years later and without allowing any evidence to be taken, marks a departure from established constitutional law. We are confident, as both sides have always believed, this case will ultimately be resolved by the Ninth Circuit Court of Appeals, which already upheld this very statute in 1981." (http://www.latimes.com/entertainment/arts/culture/la-et-cm-california-art-resale-royalty-act-unconstitutional-20120521,0,705518.story)

Meanwhile, it remains to be seen whether the EVVA of 2011 will be enacted to provide fine artists with nationwide "continuing remunerative relationship between a visual artist and her creation." You can sign up to track the EVAA here: S 2000 (http://www.govtrack.us/congress/bills/112/s2000) / HR 3866 (http://www.govtrack.us/congress/bills/112/hr3688)

Some initial coverage of this case can be found here:
Jori Finkel, Artists sue two auction houses, Los Angeles Times (October 19, 2011) (http://articles.latimes.com/2011/oct/19/entertainment/la-et-auction-house-suit-20111019).

Quinn Heraty is principal of Heraty Law PLLC (http://heratylaw.com) and is admitted to practice in New York and California. Her practice focuses on professionals and small businesses in the entertainment, design, and fashion industries.

June 22, 2012

Change in Law to Provide Funding Alternative for Entertainment Entrepreneurs

On April 5th, President Obama signed the Jumpstart Our Business Startups (JOBS) Act into law, which included the Capital Raising Online While Deterring Fraud and Unethical Non-Disclosure Act of 2012 (the Crowdfund Act or the Act) (http://www.govtrack.us/congress/bills/112/hr3606). The Crowdfund Act will ease the restrictions that had limited the ability of entrepreneurs, including artists, to finance their projects by raising small amounts of money from everyday investors online. Although securities cannot be offered for sale under the exemption from registration created by the Act (the crowdfunding exemption) until the SEC completes its rulemaking, the Act will soon impact many entertainment entrepreneurs seeking funds to finance films and other artistic endeavors, as well as their legal advisors.

Crowdfunding can be defined as a collective effort to pool money, popular today through the Internet, to support a project, cause or organization. It has become an increasingly common and effective way for entrepreneurs and artists to finance business and creative endeavors, making it easy to solicit financing from anyone with internet access and available capital.

Compliance with U.S. securities laws prior to the Crowdfund Act, however, required that crowdfunding be restricted to rewards, pre-payment, donation, and interest-free loan-based models, limiting the full possibilities of crowdfunding to stimulate entrepreneurship. A security is an investment of money in a common enterprise with an expectation of profits arising from the efforts of others. When a security is offered to the public over the Internet or through other means, the offering party is required to meet registration and ongoing disclosure requirements with the SEC. While this serves the public interest in helping guard against potential fraud, the time and expense involved in meeting these requirements make public offerings impractical for almost all start-ups and small businesses, and especially for artists. There are several exemptions to the public registration requirement, but prior to the Crowdfund Act, none would apply to a crowdfunding equity model where a financial stake in a business or project could be promoted online to the general investing public.

The challenge with equity crowdfunding is to create a regulatory framework that unlocks its full small business-stimulus possibility while mitigating the serious risk of fraud that comes with easing restrictions on the public solicitation of investment opportunities online. The SEC is charged with adopting and enforcing rules required to implement the Act that are due within 270 days of its signing into law (i.e., before January 1, 2013), but the Act itself provides baseline rules that include a combination of funding caps, rules governing websites that offer securities under the crowdfunding exemption and targeted disclosure and reporting obligations.

Specifically:

• It sets a $1 million cap on the amount that can be raised over a 12 month period by an issuer offering unregistered securities under the crowdfunding exemption. Any securities sold by the issuer, whether under the crowdfunding exemption or not, count toward this $1 million limit.

• It sets a cap on the amount each investor can invest in a single offering made under the exemption, with different limits based on investors' annual income or net worth.

• It requires that transactions entered into under the crowdfunding exemption be conducted through an intermediary that meets requirements set out in the Act. Such intermediaries must register with the SEC as a "funding portal", conduct background checks on the officers, directors and significant (20% or more) stockholders of the issuer, announce a minimum financing target pursuant to which funds will only be disbursed to the issuer once reached and screen investors with questions designed to demonstrate sufficient financial acumen to appreciate the unique risks of an investment in securities under the crowdfunding exemption.

• It requires that the issuer file certain basic information about itself with the SEC and make a variety of other disclosures available to its intermediaries and investors, including its intended use of the proceeds and certain financial information (the extent of which depends on the overall amount of financing the issuer has sought under the crowdfunding exemption over the past 12 months).

Each of these requirements and others will be further elaborated on in the forthcoming SEC rules, which will determine the complexity of the funding portal registration process and in effect, when securities can start being offered under the crowdfunding exemption.

Other key features of the Act limit the resale of securities purchased under the exemption, prohibit issuers from advertising the terms of an offering and provide a remedy for investors harmed by an issuer or intermediary's material misstatements or omissions. One challenge the SEC must consider is its fraud prosecution strategy where, with potential damages that may often be very small, victims may not have the financial incentive to incur the expense of seeking legal redress. States, however, will also be able to take action against issuers and intermediaries for fraud, despite the Act's preemption of state blue sky laws.

Besides fraud, there are other issues that may be difficult for the SEC to address. In a typical seed investment, lawyers, financial advisors and other representatives of the investor negotiate tagalong rights and other preferences to make sure that early-stage investors' interests are protected. Otherwise, early investors could become completely diluted as the company moves on to later-stage capital raises. The Act anticipates this concern, requiring that the issuer provides a description of its capital structure and the terms of the offering, including how crowdfunding investors "may be materially limited, diluted, or qualified by the rights of any other class of security of the issuer." Nonetheless, it will be a major challenge for disparate small investors to replicate the leverage and sophistication that enables an angel investor to receive offering terms that merits its capital risk.

While small business hiring and commercial innovation are the most common themes used to tout the Crowdfund Act, the Act is also likely to impact the arts. Crowdfunding already has a special role in the creative community for a variety of reasons. Audience taste is extremely difficult to predict, and crowdfunded creative projects benefit from public feedback before production begins. They go forward when enough potential consumers (who are also likely to promote it to others) use their money to express interest and belief in a project, in contrast to hierarchical decision-making. Independent contributors are also free from public relations and corporate conflict concerns that can otherwise hinder financial support for unorthodox works.

First-time filmmakers and other less-established artists have historically had even fewer legal financing options than other entrepreneurs. Angel investors or banks will rarely finance a creative project helmed by a novice. Before websites like Kickstarter and Indiegogo came along, friends, family, personal savings and credit cards were often the only way to fund such an independent endeavor.

These platforms are still likely to thrive once the crowdfunding exemption takes effect. While much less onerous than the requirements for a public offering, complying with the Crowdfund Act and forthcoming SEC rules will still require significant care and expense. Retaining full control over a project successfully funded by a Kickstarter or similar campaign will also appeal to many artists over the challenges of dealing with stockholders from an issuance under the crowdfunding exemption. Additionally, individuals that currently contribute to the arts are unlikely to begin supporting only those projects that have the possibility of profit, particularly when being presented with information on how risky are such investments.

In many cases, however, issuing securities under the crowdfunding exemption will be the preferred method of financing a film or other creative project. It will be of particular interest to those filmmakers and other artists with projects that are more commercially-oriented and have substantial budgetary requirements. As David Marlett, Executive Director of the National Crowdfunding Association, has pointed out, filmmakers could raise more than $1 million for a single film by having multiple offerings under the crowdfunding exemption spaced at least 12 months apart.

In comments to the SEC (http://www.sec.gov/comments/jobs-title-iii/jobstitleiii-22.htm), prominent entertainment attorney and author Mark Litwak made the case that the forthcoming rules should consider certain differences between films and other creative endeavors relative to "traditional businesses". Litwak's suggestions for regulating film financing under the crowdfunding exemption include:

• requiring filmmakers to rigorously document and report expenditures, including a limit that only 10% of the funds raised are used for cash payments (with all other expenses to be paid by check or credit card so that there is a record);

• requiring that a script or synopsis, line item budget and deadline for completion be provided to potential investors; and

• requiring a final cost report be issued to investors on completion and that updates to investors are provided every 90 days until the film is released.

Such distinctions could help facilitate the use of the crowdfunding exemption for films and other creative works by further protecting investors from fraud.

Anyone considering offering stock under the new exemption will need to carefully review the Act, the forthcoming SEC rules and other guidance, consider the costs against other funding alternatives and consult an attorney. Despite the expenses and challenges, the crowdfunding exemption could have broad implications on the arts and development of artists.


Ronald L. Barabas is a Corporate and Entertainment Attorney at Di Santo Bowles Bruno & Lutzer LLP. He can be contacted at rbarabas@disantobowles.com.

July 1, 2012

The Explorers Club "Artists In Exploration" Program Seeking Applications for Awards

By Kim Swidler

The Explorers Club (www.explorers.org) is now accepting applications from both members and non-members for its new "Artists in Exploration" program, underwritten by Rolex Watch, USA. This is a rare chance for artists to be funded for particular works while working in the field - whether it be photography, music, painting, sculpture, or other art form. A total of $25,000 will be distributed among the 2012 winners.

Headquartered in Manhattan and founded in 1904, the Explorer Club's members have been responsible for an illustrious series of famous firsts: to the North Pole, to the South Pole, to the summit of Mount Everest, to the deepest point in the ocean, and to the surface of the moon.

The deadline for submissions is 5:00PM EDT on July 20th, 2012.

Those interested may contact Executive Director Matt Williams for an application at mwilliams@explorers.org or by calling 212-628-8383.

February 13, 2013

Morris v. Young

By Barry Werbin

Another new interesting artwork photography/art fair use - "transformative use" - decision was issued 1/28/2013 by the C.D. California (Morris v. Young (CD Cal. 2013)), mirroring the same issues as in Cariou v. Prince, 784 F. Supp. 2d 337, 349 (S.D.N.Y. 2011) [on appeal]. In this case, the defendant, Young, was an artist who created a series of works based on photographic images of the punk band the Sex Pistols that he found on the Internet, which Young believed were in the public domain because they bore no copyright notice. The photos had been taken by the plaintiff photographer Morris, who had published two books on the Sex Pistols originally in the UK. The books contained original photographs of the Sex Pistols on tour, taken by Morris, including the photograph in issue (Subject Photograph), which depicts Sid Vicious and Johnny Rotten performing on stage.

Young took that photo and created three different "artistic" variations of it. One was called "Sex Pistols in Red" and depicts the Subject Photograph, "cropped slightly to more closely frame the subjects and tinted in a deep red color." The second one was called "Sex Pistols" and "depicts the Subject Photograph, printed using black enamel on an acrylic background." Young "altered the colors and shades, deepened the contrast between the black and white portions of the image, and added 'grittiness' to the image by printing it in black enamel on an acrylic background." A third a piece called "White Riot + Sex Pistols," depicts two images of the Subject Photograph side-by-side, "with a Union Pacific logo and the words "White Riot" and red stars graffitied atop the images."

On a motion for summary judgment by plaintiff Morris, the court held that Young's fair use defense failed as to the first two of the three images identified as "Sex Pistols" and "Sex Pistols in Red" because they were "not transformative works", and Young failed to carry his burden on the four traditional fair use factors. In particular, the court cited favorably to Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006) and Cariou v. Prince. The court found that the "works were [not] created for any reason other than to emphasize the characteristics with which the band was already associated" and such use of the Subject Photograph was "not transformative because it lacks any significant expression, meaning, or message that is unique vis à vis the works' original purpose."

However, with respect to the third work, "White Riot + Sex Pistols," the court denied summary judgment finding the image "bears certain aesthetic characteristics that raise the question of transformation, and, by extension, fair use." [Here we have a court, in my view, using the judicially created concept of "transformation" as a test seemingly apart from "fair use" itself.] "[U]nlike the other two Accused Works, 'White Riot + Sex Pistols' incorporates images beyond the band itself and arranges them such that the composition may convey a new message, meaning, or purpose beyond that of the Subject Photograph." Citing the Supreme Court's decision in Campbell v. Acuff-Rose Music Inc., 510 U.S. 569 (1994), the court held there were issues of fact "as to whether the work does more than 'merely supersede[] the objects of the original creation,' and therefore a trier of fact may reasonably deem it transformative. Campbell, 510 U.S. at 579. The transformative character of a work bears upon the weight and meaning of the other fair use factors."

February 15, 2013

The Batmobile Is A Protectable "Character"

By Barry Werbin

A very interesting decision from January 26th out of the C.D. Cal., ruling on cross summary judgment motions, finds in favor of DC Comics (Warner) that the iconic Batmobile® is akin to a "character" protectable by copyright as opposed to an unprotected functional automobile.

The defendant, Gotham Garage, is a manufacturer of television and movie replica vehicles. Gotham and its co-defendant individual owner lost their "useful article" defense. A copy of the lengthy decision is available at http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/batmobile.pdf.

As the court holds:

"The Batmobile is a character and exists in both two- and three-dimensional forms. Its existence in three-dimensional form is the consequence of the Batmobile's portrayal in the 1989 live-motion film and 1966 television series. [...] Defendant did not copy the design of a mere car; he copied the Batmobile character. The fact that the unauthorized Batmobile replicas that Defendant manufactured -- which are derivative works -- may be 'useful articles' is irrelevant. A derivative work can still infringe the underlying copyrighted work even if the derivative work is not independently entitled to copyright protection."

-- and --

"The Batmobile, and the so-called functional elements associated with it, is not a useful object in the real world, and incorporates fantasy elements that do not appear on real-world vehicles. The 'functional elements' - e.g., the fictional torpedo launchers, the Bat-scope, and anti-fire systems - are only 'functional' to the extent that they helped Batman fight crime in the fictional Batman television series and movies. Thus, the Batmobile's usefulness is a construct."

The decision also sets forth a detailed history of copyright protection for fictional characters in the Ninth Circuit. The first part of the decision addresses trademark infringement and unfair competition claims, also ruling in favor of DC Comics on both counts.

September 26, 2013

North Jersey Media Group, Inc. v. Roger Nunn and John Does Nos. 1-5

By Frank J. Colucci

Below is a copy of Judge Sweet's recent decision from September 18th in North Jersey Media Group, Inc. v. Roger Nunn and John Does Nos. 1-5, Case 1:13-CV-01695-RWS, granting the defendant's motion to dismiss the complaint for lack of personal jurisdiction.

The decision is of particular interest in that the defendant, a California resident, made only one sale of the allegedly infringing photo for $5.00 in response to an order placed by the plaintiff's New York counsel for the purpose of obtaining jurisdiction pursuant to New York's long arm statute.

A copy of the decision is available here: North Jersey Media.pdf

November 20, 2013

Fashion Law Legislative Update

By Hilary F. Jochmans

The headlines coming out of Washington DC recently have focused on the shutdown, the near default and the general toxic political environment. However, now that the government is once again open for business and we have averted defaulting on our debts, Congress can consider other legislative matters of particular interest to the fashion and retail communities, such as comprehensive tax reform, including on-line sales tax regulation, immigration, copyright reform, and the focus of this summary: trade.

Trade Promotion Authority

Granted by Congress, Trade Promotion Authority (TPA) allows the White House to submit trade agreements to Capitol Hill for a straight up-or-down vote without amendment. It is often seen as the key to completing trade deals, since other countries can be comforted that the U.S. Congress cannot change the final negotiated deal.

This authority has lapsed and President Obama is now seeking a renewal in order to conclude, by the end of the year, the Trans-Pacific Partnership (TPP). This regional free trade agreement, with 11 other countries in the Asia-Pacific Rim, would be the largest such deal in history and have major implications for the textiles, apparel, and footwear industries in the areas of labor, quotas, and tariffs.

TPA needs to be considered by the Senate Finance Committee, led by Democratic Senator Max Baucus from Montana, and the House Ways and Means Committee, led by Republican Dave Camp from Michigan. Interestingly, both of these elected officials have announced that they are retiring at the end of this Congressional year. To date, legislation re-authorizing TPA has not yet been introduced.

General Information

You may remember the old lottery commercial - "You've got to be in it to win it!" Well, that same axiom applies to government and politics. If there are issues you care about, then it is imperative to communicate this to your elected officials. Over 3,000 bills have been introduced in Congress this year, and the representatives need to hear from their constituents about which ones are of importance to them. You can learn who your representatives are and how to contact them, as well as track legislation at: www.congress.gov.

November 21, 2013

Victoria's Secret Accused of Some Serious Hanky Panky

By Erika Maurice

Hanky Panky Ltd. (Hanky Panky), a small New York-based underwear company, has accused the lingerie goliath Victoria's Secret and its parent company, Limited Brands, Inc. (Victoria's Secret), of trademark infringement. In its complaint filed on October 31, 2013 in the Southern District of New York, Hanky Panky states that Victoria's Secret inappropriately used the name "After Midnight" to launch a new collection of products consisting of an "aphrodisiac" candle, massage oil, perfume product and room spray, which are virtually identical to Hanky Panky's "After Midnight" line of sensual products. Hanky Panky, a company that rose to fame by selling its 4811 lacy thong panty to the likes of Cindy Crawford, claims that it registered the "After Midnight" mark in 2012 and has since invested substantial time and money into the mark which has evolved secondary meaning. "To make matters worse" the complaint continues, Victoria's Secret has also used Hanky Panky's advertising slogan, "Release Your Inner Flirt" in connection with the sale of its new sleepwear, which, according to Hanky Panky, "betrays a studied and deliberate misappropriation of [its] valuable intellectual property." Hanky Panky claims that it has been using the "Indulge" slogan since 2003 and later registered the mark in 2007.

Hanky Panky alleges that Victoria's Secret's misappropriation of its marks has caused harm to its reputation and will lead the public into believing that the two companies are affiliated. Additionally, Hanky Panky stated that, due to Victoria's Secret's relatively larger size and marketing power, Victoria's Secret's use of the marks could lead to reverse confusion and somehow mislead the consuming public into believing that Hanky Panky is infringing on Victoria's Secret's brand. Hanky Panky further claims economic damages, asserting that Victoria's Secret alleged misappropriation prevents it from capitalizing on the time and expense invested in the "After Midnight" and "Indulge" marks, which has thwarted its "economic opportunities", and caused loss of sales and profits. The complaint continues to list two counts of trademark infringement for the misappropriation of both the "After Midnight" and "Indulge" marks, as well as additional counts for false designation of origin and common law unfair competition. In addition to money damages, which includes the cost of corrective advertising to mitigate any consumer confusion, Hanky Panky is seeking an injunction and has also asked the court that all infringing material be handed over to Hanky Panky for destruction. Victoria's Secret has yet to make a public comment or respond to the allegations in the complaint.

Shoes, Shoes, and More Shoes: The Battle over Intellectual Property Protection for Shoe Designs Wages on After Louboutin v. YSL

By Melissa B. Berger

Although not receiving nearly as much publicity as the fight between Christian Louboutin and Yves Saint Laurent over red soled shoes, numerous other federal lawsuits continue to be filed regarding the degree of intellectual property protection that should be afforded to shoes and their design elements. This blog summarizes a sampling of those cases filed during September and October of 2013.

Converse, Inc. v. Autonomie Project, Inc.

On September 9, 2013, Converse, Inc. (Converse) filed a Complaint in the District of Massachusetts against Autonomie Project, Inc. (Autonomie) (Case No. 13-cv-12220), alleging federal trademark infringement, false designation of origin, unfair competition, and dilution, as well as common law trademark infringement, unfair competition, and dilution, and unfair business practices under Massachusetts law.

Prior to initiating this lawsuit, Converse sent a cease and desist letter to Autonomie. Having not received its requested response, Converse now maintains that it has common law and federal trademark rights in various aspects of the trade dress used in connection with the "Chuck Taylor All Star" shoes, "including but not limited to the design of two stripes on a midsole, the design of a toe cap, the design of a multi-layered toe bumper featuring diamonds and line patterns, and the relative position of these elements to each other," covered by four federal trademark registrations.

Converse alleges that, since 1917, it has sold over one billion pairs of shoes bearing this aforementioned trade dress, which "has become a famous and well-known indicator of the origin and quality of Converse footwear." Converse also emphasizes that its trade dress is "the subject of widespread and unsolicited public attention," including "acclaim in books, magazines, and newspapers" and "frequent appearances in movies and television shows." For instance, Converse cites to books that describe its trade dress "as an icon of American footwear and the most famous athletic shoe in history." Converse therefore alleges that its trade dress has acquired both fame and secondary meaning and that it has "a distinctive appearance using unique and non-functional designs."

Converse alleges that Autonomie, without any authorization from Converse, has been selling, and continues to sell, footwear bearing design elements that are confusingly similar to Converse's trade dress. Converse alleges that, on its website, Autonomie even makes numerous comments acknowledging that its products are very similar in appearance and style to Converse shoes, and even more specifically to the Chuck Taylor All Star shoe. Converse has consequently alleged that Autonomie's infringement is "intentional, willful, and malicious."

Converse asserts that Autonomie's activities are likely to cause consumer confusion and have caused, and will continue to cause, Converse substantial and irreparable injury to its goodwill and reputation. As relief, Converse seeks a preliminary and permanent injunction enjoining Autonomie's alleged activities, an order requiring the destruction of all products and materials related to the alleged infringing products, as well as an award of Autonomie's profits, actual damages, enhanced profits and damages, attorneys' fees and costs, and even punitive damages. Autonomie did respond to Converse's Complaint, which Answer was due on October 30th.

Tommy Hilfinger U.S.A., Inc. and Tommy Hilfiger Licensing LLC v. Jumbo Bright Trading Limited

Just two days after the Converse suit was filed, on September 11th, Tommy Hilfiger U.S.A., Inc. and Tommy Hilfiger Licensing LLC (together, Tommy Hilfiger) filed a Complaint for Declaratory Judgment in the Southern District of New York against Jumbo Bright Trading Limited (Jumbo Bright), which distributes Charles Philip brand footwear. This filing was in response to a number of cease and desist letters that Tommy Hilfiger received from Jumbo Bright regarding its use of a vertical stripe pattern, known as the "Ithaca Stripe," on the inside of its shoes (Case No. 13-cv-06386). Jumbo Bright asserted, in those letters, that it owns common law trademark rights to what Tommy Hilfiger describes as a "vertical stripe pattern used on the interior lining of its footwear, along with three vertical stripes on the shoe rim near the heel" and that Tommy Hilfiger's use of its vertical stripe pattern infringes upon those common law trademark rights.

As a result, Tommy Hilfiger is seeking a declaration from the court that Jumbo Bright's stripe pattern does not function as a trademark because it is merely ornamental, is aesthetically functional, and lacks secondary meaning. Tommy Hilfiger asserts that Jumbo Bright cannot own common law rights in said stripe pattern, as it is merely decorative, fails to serve as a source indicator or to distinguish Jumbo Bright's goods from those of others, and furthermore, that granting any trademark rights in such a design would hinder fair competition within the footwear industry.

Tommy Hilfiger supports its claims by emphasizing that Jumbo Bright previously filed two applications with the U.S. Patent and Trademark Office (USPTO) to try to protect its vertical stripe pattern, both of which were rejected as lacking inherent and acquired distinctiveness and as being merely ornamental or decorative in nature and therefore failing to function as a trademark. Furthermore, despite Jumbo Bright's attempts to overcome these initial refusals, the USPTO maintained its rejections, to which, it appears, Jumbo Bright did not respond. Both of these applications have since been deemed abandoned by the USPTO.

Tommy Hilfiger further claims that, even if Jumbo Bright's stripe pattern was entitled to trademark protection, Tommy Hilfiger has prior use of its "Ithaca Stripe" pattern over Jumbo Bright's usage. Tommy Hilfiger therefore seeks declaratory judgment that its use of the "Ithaca Stripe" pattern does not constitute trademark or trade dress infringement, is not likely to cause any consumer confusion as to source, and does not constitute false designation of origin or unfair competition. Jumbo Bright appears to have executed a waiver of service and its Answer is therefore due on November 12th.

AirWair International Ltd., v. Cels Enterprises, Inc. d/b/a Chinese Laundry

A week after the Tommy Hilfiger suit was filed, on September 18, 2013, AirWair International Ltd., the producer of Dr. Martens footwear (AirWair), brought a suit very similar to Converse, against Cels Enterprises, Inc. d/b/a Chinese Laundry (Cels) in the Northern District of California (Case No. 13-cv-04312). AirWair is alleging federal trademark infringement, false designation of origin, and dilution, as well as California Statutory unfair competition and dilution, and common law unfair competition, in connection with Dr. Marten's registered trade dress, featuring "yellow stitching in the welt area of the sole and a two-tone grooved sole edge," as well as "a distinctive undersole design consisting of a unique horizontal grid pattern." AirWair claims ownership of five trademark registrations covering its trade dress, all of which, it states, have been in use in the United States since 1984.

AirWair asserts that its trade dress has acquired distinctiveness, is non-functional, and is world famous, that Dr. Martens has become one of "the world's greatest and most recognizable brands," and that its boots and shoes are "iconic." AirWair alleges that Cels is selling, under its Chinese Laundry brand, footwear that is confusingly similar to and contains trade dress that is "substantially indistinguishable" from, or "substantially identical to," AirWair's registered trade dress. AirWair also alleges that Cels' copying and infringement is done with knowledge, is deliberate, constitutes unfair competition and an attempt to trade upon Dr. Martens' popularity and reputation, and constitutes a false designation of origin. AirWair further alleges that it has suffered and will continue to suffer reputational damage, as well as lost sales and profits, as a result of Cels' alleged unlawful activities. AirWair further states that Cels has been unjustly enriched by its "unlawful use and imitation of AirWair's registered Trade Dress" and that Cels' actions are likely to "dilute, blur and tarnish the distinctive quality" of that trade dress and to "lessen the capacity of AirWair's marks to identify and distinguish the company's products."

AirWair is therefore seeking a preliminary and permanent injunction of Cels' alleged unlawful activities, as well as an Order requiring Cels to either destroy, or turn over to AirWair, any and all products containing the infringing trade dress, means of making such products, packaging, marketing materials, and any other goods related to its alleged unlawful activities. AirWair has also requested an accounting of Cels' profits arising from its alleged unlawful activities, an award of either actual damages sustained by AirWair or statutory damages, an award of treble damages, pre- and post-judgment interest on all damages awarded, as well as attorney's fees and costs. As of October 29th, the docket did not reflect that a Summons has been returned executed or, consequently, that an Answer has been filed.

Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v, Shoe Confession LLC, Perry Ellis International, Inc., PEI Licensing Inc., and other Doe defendants

Yet another Complaint, this time alleging design patent infringement, in addition to trade dress infringement and unfair competition, was filed on October 11, 2013, by Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II ("Sketchers") against Shoe Confession LLC, Perry Ellis International, Inc., PEI Licensing Inc., and other Doe defendants (collectively, the "Perry Ellis Defendants") in the Central District of California (Case No. 13-cv-07573).

This suit concerns Skechers' shoe entitled the "Skechers Go Run." Sketchers alleges ownership of "exclusive and protectable trade dress rights" in what it terms a "sole bottom trade dress" and an "outsole periphery trade dress" for its Skechers Go Run shoe, which Skechers asserts has acquired distinctiveness and has "an ornamental configuration that uniquely identifies the shoe as emanating from a single source, Skechers." Skechers is alleging that the Perry Ellis defendants' "Pro Player Phaze 2M" shoe infringes its trade dress by using the same repeating cleat and nub patterns used by Skechers, which "deceive[s] consumers into buying defendants' shoes in the mistaken belief that defendants' shoes emanate from Skechers and are genuine Skechers shoes."

Skechers also alleges willful infringement of each of its four U.S. design patents covering various ornamental features of the sole bottom and outsole periphery of its Skechers Go Run shoe. Skechers states that the USPTO, in issuing these patents, has acknowledged that Skechers' designs are "novel, nonobvious, and ornamental." Skechers states that the Pro Player Phaze 2M shoes "embody the patented invention[s] disclosed in" Sketchers' patents and that the shoe so closely resembles the inventions disclosed in its four patents that "an ordinary observer would be deceived into purchasing the Pro Player Phaze 2M shoe in the mistaken belief that it includes the invention[s] disclosed in" those patents.

Skechers' Complaint also includes a claim that "Defendants are willfully, fraudulently, oppressively, maliciously and unlawfully attempting to pass off, and are passing off, their infringing footwear as those approved and/or authorized by Skechers," a violation of common law unfair competition, which Skechers alleges has resulted in irreparable injury to its business reputation. As a result, Skechers seeks preliminary and permanent injunctions enjoining the Perry Ellis defendants from engaging in the alleged activities and an order directing the destruction of all goods and "instrumentalities used in the production" of such goods, as well as a recall of any and all goods and materials infringing any of the Skechers patents. Skechers further seeks treble damages, plus interest, for each claim of trade dress and patent infringement, as well as the Perry Ellis defendants' profits from any sales of the alleged infringing footwear, punitive damages, restitution, and attorneys' fees and costs. As of October 29th, no Answer had been filed in this case.

In conclusion, as all of these cases make clear, the controversy regarding the proper level of intellectual property protection that should be afforded to shoe design is still alive and kicking in the courts in the wake of Louboutin v. YSL.

Hoodlove, LLC v Roc Apparel Group, LLC

By Emma Brady

On August 26th, New Jersey-based company, Hoodlove, LLC (Hoodlove) filed a lawsuit in the United States District Court for the Southern District of New York against, among others, New York-based Roc Apparel Group, LLC (Roc Apparel), alleging trademark infringement, dilution, unfair competition, and false advertising, all in violation of federal and state laws. The mark in question are the words "Hood Love" (Hood Love Mark), which was federally registered by the plaintiff for use in connection with clothing, including baseball caps, headwear, t-shirts, and sweat shirts, in May 2010. The complaint states that Hoodlove is a "for-profit company that focuses on the social and economic development of poverty-stricken communities commonly known as 'the hood.'"

According to the complaint, the defendant, Roc Apparel, distributes and sells the brand "Rocawear", launched by and associated with, rap artist Jay-Z. Hoodlove contends that Roc Apparel has misappropriated the Hood Love Mark to promote and sell apparel on its website and elsewhere without authorization and is likely to cause confusion and to deceive customers and potential customers into believing that the goods are in fact those of Hoodlove or are otherwise connected or associated with Hoodlove.

Hoodlove seeks an injunction restraining the defendants from engaging in trademark infringement, dilution and passing off by distributing and selling the allegedly infringing apparel as well as an award of monetary damages.

Former Donna Karan Intern Sues for Unpaid Wages

By Nadine Etienne

On August 28th, Valentino Smith, a former Donna Karan intern, filed a class action lawsuit against Donna Karan International Inc. and Donna Karan Studio LLC for failure to pay wages pursuant to the New York Labor Law in New York Supreme Court. (On November 8th, the caption of the complaint was amended from Valentino Smith against Defendants Donna Karan International, Inc. and Donna Karan Studio LLC to Valentino Smith against the Donna Karan Company Store LLC and the Donna Karan Company LLC.) Smith worked as an undergraduate intern at the company's Seventh Avenue headquarters in 2009, but now claims he was mischaracterized in contravention of New York Labor Law.

According to the U.S. Department of Labor (DOL) Fact Sheet #71, an unpaid internship must meet a set of criteria that benefits the intern in order to be considered lawful. Specifically, the internship must be similar in training to an educational institution, must be for the benefit of the intern, must not displace regular employees, and may not inure to the employer's immediate advantage. The DOL does not require the internship to entitle an intern to a later permanent position. Additionally, the intern must understand that the position is unpaid.

The New York Minimum Wage Act and Wage Orders Fact Sheet for For-Profit Businesses (Minimum Wage Fact Sheet) applies the DOL's criteria as well as its own in determining an employment relationship. The Minimum Wage Fact Sheet requires intern supervision by persons who have sufficient knowledge of the industry. Interns may not be eligible for employee benefits, and should receive training in skills transferable to any business and not just the specific job with the employer. The Minimum Wage Fact Sheet also requires that internship job postings and advertisements clearly discuss education or training rather than employment.

Recently, in Glatt v. Fox Searchlight, Judge William Pauley issued a ruling in favor of unpaid interns to pursue their class action against Searchlight for unpaid wages in federal court. (No. 11 Civ. 6784 (S.D.N.Y. June 11, 2013)). Conde Nast also has a pending wage and hour lawsuit in federal court from two former interns who worked at The New Yorker and W Magazine. (Lauren Ballinger and Matthew Leib, et al., v. Advance Magazine Publishers, Inc. d/b/a Conde Nast Publications, No 13 Civ. 4036 (S.D.N.Y. June 13, 2013)). In October, Conde Nast announced that it is ending its internship program. The wage and hour suit against Donna Karan may spawn further class action litigation and may have a similar affect on internship programs offered by New York fashion houses.

February 7, 2014

On the Heels of the Week: Privacy, Fashion, and the Internet

Tuesday, February 11, 2014
5:00pm - 8:30pm

- Location -
Kenyon & Kenyon LLP
1 Broadway
New York, NY 10004

As consumers stroll through the doors of their favorite designer flagship or visit their favorite online clothing store, they may not be aware of how much information is being collected about them and their shopping habits. More than ever, retailers are collecting analytic data on consumers that include typical consumer information (name, address, phone number) as well as consumer arrival and shopping habits. Both brick-and- mortar and e-tail fashion retailers can now track consumer in-store and online movements, noting when they visit, what items they stop to admire, and even gathering data on gender, ethnicity, and facial expressions.

Collecting consumer information can be an invaluable tool for retailers, however, it is not without legal implications. EASL's Fashion Law Committee invites you to its third annual "On the Heels of Fashion Week" CLE program, where we will examine these and other privacy issues that arise from the collection and use of consumer information in a retail environment. We will discuss:

* How can fashion retailers collect and use consumer information while balancing the rights of consumers?
* What must be disclosed to consumers about the recording and use of their personal data?
* What type of consumer information is considered Personally Identifiable Information (PII)?
* Is it legal to ask customers for their zip codes or email addresses at checkout?

~Moderator~
Jessica B. Lee, Esq., Loeb & Loeb LLP

~Speakers~
Khaliah Barnes, Esq., Administrative Law Counsel, Electronic Privacy Information Center Barry M. Benjamin, Esq., Partner, Kilpatrick Townsend & Stockton LLP Joseph V. DeMarco, Esq., Partner, DeVore & DeMarco LLP Shelley E. Kohan, Fashion Institute of Technology Daniel Marques, Consulting Chief Technology Officer/Technology Advisor

Program Agenda:
5:00 - 6:00 - Refreshments
6:00 - 6:30 - Overview of federal and state privacy laws
6:30 - 7:00 - Recent privacy cases
7:00 - 7:30 - Sample retail/fashion marketing trends that implicate privacy issues
7:30 - 8:00 - Creating a privacy policy
8:00 - 8:30 - Q&A

This program is sponsored by the Fashion Law Committee of the Entertainment Arts & Sports Law Section of the New York State Bar Association.

To Register Visit: FashionLawCLE

Under New York's MCLE rule, this program is approved for a total of 2.0 credit hours in Professional Practice. his program is NOT a transitional program and does not qualify for newly admitted attorneys.

February 28, 2014

Utah District Court Issues First Preliminary Injunction Against Aereo

By Barry Werbin

In a marked turn of events for Aereo, the disruptive provider of dime-size antennae over-the-air rebroadcast services, on February 19, 2014, the Utah federal District Court (Judge Dale Kimball) became the first court to issue a preliminary injunction against Aereo, finding that it infringed the plaintiff broadcasters' public performance copyrights in the transmissions of their broadcasts under the Copyright Act's Transmit Clause. The court barred Aereo from operating within the Tenth Circuit, which covers the states of Utah, Colorado, Montana, New Mexico, Oklahoma and Wyoming. The case, which consolidates two separately filed actions in Utah by different sets of broadcasters, is Community Television Of Utah, LLC v. Aereo, Inc., No. 2:13CV910DAK. A copy of the decision can be accessed here: Aereo Utah.pdf.

Aereo was sued in the Utah cases after being victorious before the Second Circuit (albeit with a strong dissent from Judge Denny Chin) in WNET v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013), cert. granted sub nom ABC, Inc., et al, v. Aereo, Inc., Sup. Ct. (Jan. 10, 2014). The Supreme Court will hear argument on April 22nd and a decision is expected by June. Aereo also won before the District Court of Massachusetts in Hearst Stations Inc. v. Aereo, Inc., 2013 WL 5604284 (D. Mass. Oct. 8, 2013), which is on appeal to the First Circuit.

On the other hand, another Aereo-type tiny antenna service, FilmOnX (formerly Aereokiller), had a resounding defeat in the Central District of California, in a case now sub judice before the Ninth Circuit, where FilmOnX is presently subject to a preliminary injunction. FOX Television Stations, Inc. v. BarryDriller Content Systems PLC, 915 F.Supp. 2d 1138 (C.D. Cal. 2012), appeal pending. FilmOn also lost in the District of Columbia, where the court issued a nationwide preliminary injunction, excluding the Second Circuit. Fox Television Stations, Inc. v. FilmOn X LLC, 2013 U.S. Dist. LEXIS 126543 (D.D.C. Sept. 5, 2013).

In all these cases, including the new Utah decision, the core issue is whether these types of retransmission services violate the Transmit Clause under Section 101 of the Copyright Act, which defines a "public performance" -- one of the exclusive rights reserved to a copyright owner -- as the right "to transmit or otherwise communicate a performance or display of the work to a [public place] or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."

The Utah court characterized Aereo's retransmissions of over-the-air broadcasts as being "indistinguishable [to] a cable company" and that its services fall "squarely within the language of the Transmit Clause." The court examined the holdings of all these prior decisions, but because there is no existing Tenth Circuit law on the issue, it conducted its own analysis. In doing so, it concluded that "California and D.C. district court cases as well as Judge Chin's dissent in the Second Circuit case are the better reasoned and more persuasive decisions with respect to the proper construction of the Transmit Clause and its application to Aereo's operations."

In particular, the court examined the "plain language" of the Transmit Clause and the applicable definitions in the Copyright Act, and concluded that such "definitions in the Act contain sweepingly broad language and the Transmit Clause easily encompasses Aereo's process of transmitting copyright-protected material to its paying customers. Aereo uses 'any device or process' to transmit a performance or display of Plaintiff's copyrighted programs to Aereo's paid subscribers, all of whom are members of the public, who receive it in the same place or separate places and at the same time or separate times."

The court further examined the legislative history behind the Transmit Clause. In particular, it cited to Congress' intent in the 1976 Act to expressly overrule prior Supreme Court decisions, which had validated community antenna television systems (precursors to modern cable systems) under the 1909 Copyright Act and to "bring a cable television system's transmission of broadcast television programming within the scope of the public performance right."

Aereo relied on the Second Circuit's opinion and that decision's reliance, in turn, on the Second Circuit's earlier opinion in the Cablevision case, Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), which had upheld a remote DVR system made available to end-users who already subscribed to Cablevision's services (and where Cablevision was otherwise paying legally required retransmission fees to broadcasters). The Utah court, however, said "the Second Circuit [in Cablevision] proceeded to spin the language of the Transmit Clause, the legislative history, and prior case law into a complicated web" by focusing "on discerning who is 'capable of receiving' the performance to determine whether a performance is transmitted to the public." Judge Kimball noted that "such a focus is not supported by the language of the statute. The clause states clearly that it applies to any performance made available to the public," regardless of whether such performance was public or private, and "encompass all known or yet to be developed technologies." Judge Kimball also faulted the Second Circuit in Cablevision for effectively changing the wording of the Transmit Clause from "members of the public capable of receiving the performance" to "members of the public capable of receiving the transmission."

In assessing the legislative history, Judge Kimball also quoted freely from Judge Chin's dissent in the Second Circuit's decision, and concluded that "[b]ased on the plain language of the 1976 Copyright Act and the clear intent of Congress, this court concludes that Aereo is engaging in copyright infringement of Plaintiffs' programs. Despite its attempt to design a device or process outside the scope of the 1976 Copyright Act, Aereo's device or process transmits Plaintiffs' copyrighted programs to the public."

Despite a dispute as to whether any financial harm would befall the plaintiffs during the pendency of the action, the court held that preliminary injunctive relief was nevertheless warranted because, from the perspective of irreparable harm, "if Aereo were permitted to continue to infringe Plaintiffs' copyrights... Aereo's infringement will interfere with Plaintiffs' relationships and negotiations with legitimate licensees, impede and effect Plaintiff's negotiations with advertisers, unfairly siphon viewers from Plaintiffs' own websites, threaten Plaintiffs' goodwill and contractual relationships with Plaintiffs' licensed internet distributors, lose their position in the competitive marketplace for Internet content, and cause Plaintiffs to lose control of quality and potential piracy of its programming."

With respect to the balance of harm element, because the court limited the preliminary injunction only to the Tenth Circuit, "the harm to Aereo's business is limited only to its ability to expand into the geographic area of the Tenth Circuit. The harm to Aereo's business, therefore, will not put Aereo out of business, it merely impacts its expansion."

Finally, the court found its ruling was consistent with the public interest because "[t]he public has an interest in continuing to receive unique, local programming provided by the Plaintiffs. Original local programming, covering local news, sports, and other areas of interest, costs millions of dollars to produce and deliver to the public and the public interest plainly lies in enjoining copyright infringement that threatens the continued viability of such local programming."

Post-script: Aereo promptly moved to stay enforcement of the injunction pending its appeal to the Tenth Circuit, particularly in light of the pending Supreme Court proceeding. In a February 25th order, the court denied Aereo's motion to stay entry of the preliminary injunction but granted a 14-day temporary stay pending the Tenth Circuit's ruling on an emergency motion to stay.

More to come!

April 18, 2014

Postscript to "Nazis, Monuments Men, Hidden Treasures, and the Restitution of Looted Art"

By Leila Amineddoleh

I recently authored an article "Nazis, Monuments Men, Hidden Treasures, and the Restitution of Looted Art" to appear in the Entertainment, Arts and Sports Law Journal Spring issue(publication any day now...). The article discusses legal concerns related to the Munich Art Trove (the collection of works hidden by the Gurlitt Family for decades, discovered in Germany in March 2012, and then disclosed to the public in November 2013). Since I wrote the article in January, there have been many developments in the matter.

In addition to the 1,400 works that were hidden by Cornelius Gurlitt in Munich, an additional 238 works were discovered at another one of his properties in Austria. It was also determined that at least 310 of the works in the trove are legitimately Cornelius Gurlitt's property because his father, an art collector, acquired them before the Nazis came to power.

Due to fear that all restitution cases will be dismissed on statute of limitations grounds, two months ago, a bill was introduced to the German legislature to eliminate the 30-year limitations period for certain cases involving stolen property, such as Nazi-looted art. The legislation would apply retroactively and prevent someone from acquiring an object in bad faith and then invoking the limitations period to avoid restitution. On the same day that the new legislation was introduced, Cornelius Gurlitt filed a lawsuit claiming that German authorities used false charges of tax evasion to illegally seize the art; he demanded that his property should be returned to him immediately. Gurlitt asserts that there is no legal basis for the German government to possess the works.

Then earlier this month, a major development was announced. Gurlitt and the German government reached an agreement. Gurlitt will allow provenance researchers to investigate the works once they are released from police custody. An appointed task force will research the provenance of works suspected of having been confiscated by the Nazis. The group of researchers will include someone appointed by Gurlitt, and the investigation must be completed within a year. Artworks suspected of being Nazi loot will remain in secure custody and on www.lostart.de. This process is being funded by the German federal government and state of Bavaria. As part of the agreement, works for which the Task Force has not completed provenance research within the year will be returned to Gurlitt, but the researchers will have continued access for their examination. Gurlitt also agreed to recognize the Washington Principles (non-binding principles intended to assist in resolving issues related to Nazi-confiscated art) by means of restitution for persons claiming ownership of the works. And works that are definitively determined not to have been confiscated by the Nazis will be returned to Gurlitt and deleted from the Lost Art website. This agreement takes effect when the works are released to Gurlitt. Fortunately for claimants, the agreement bypasses the damning 30-year statute of limitations.

However, there are major problems with the agreement. It has been argued that the 1-year research deadline is insufficient, and that it is unlikely that true owners will file a claim without knowing the identity of works in the collection (at this point, fewer than 600 works have been listed on www.lostart.de). The solution also leaves too much in the hands of the selected provenance investigators. Most troubling is that the burden of proof is on claimants to prove ownership. As discussed in my article, proving ownership is a formidable task. The difficulty in filing a claim is reflected in the surprisingly low number of claims already filed. Gurlitt's spokesperson stated that he does not expect more than five percent of the works to be claimed by those in search of works stolen or extorted by the Nazis, and that the bulk of the collection was legally acquired by his family. In fact, thus far only six demands for restitution have been made. One of those works is now being claimed by two separate parties.

One of the first works that Gurlitt agreed to return was "Seated Woman", by Matisse, which was set to be restituted to the heirs of Paul Rosenberg (he was a prominent art dealer in Paris, known for representing famous artists, including Picasso and Matisse). Although negotiations had taken place and Gurlitt consented to the return of Seated Woman, the deal quickly came to a halt earlier this month when a second person came forward to claim the painting. The restitution process has been indefinitely delayed as authorities are required to investigate the new claim.

Although claimants were hopeful because Cornelius Gurlitt agreed to cooperate in the restitution process, the struggle for the arts' return continues to be difficult. Not only is the one year deadline insufficient, but proving ownership is an insurmountable hurdle for the vast majority of claimants. However, it should also be noted that the agreement negotiation involved the German government and Cornelius Gurlitt; therefore, claimants are not obliged to resolve their claims exclusively by terms of the settlement agreement.

Yet this is not the end of the drama. Some of the biggest questions will occur after Gurlitt's death. Cornelius Gurlitt is 83 years old and does not have any heirs (except for a few far-removed cousins). He purportedly drafted a will that includes provisions for the art trove. At that point, another slew of legal questions will arise.

April 30, 2014

Center for Art Law Updates

The following case selection first appeared in the Center for Art Law April newsletter:

Caterbetti v. Bloomgarden, et al. (NY Sup. Ct. Complaint Mar. 28, 2014) -- Argentine citizen is suing individual named defendants and Belenky Gallery in New York for losing and/or damaging artworks consigned to them. Plaintiff is seeking damages for an amount in excess of $500,000. Attorneys for the claimant are Matthew Kesten and Daniel Kokhba of Kantor, Davidoff. Complaint is available at https://docs.google.com/file/d/0B9yHAtGD-3ZGQUcwM0R2VnFqLUFCd1o4Z21pUUVHLTFYYkVj/edit?pli=1.

Scher v. Stendhal Gallery, 2014 N.Y. App. Div. LEXIS 2082 (First Dept., Mar. 27 2014) -- On appeal, J. Friedman ruled that Paula Scher, an established graphic artist owned the works she consigned to Stendhal Gallery on the basis of the agency law and not the New York Arts and Cultural Affairs law.

Yale University v. Konowaloff (Conn. Mar. 20, 2014) -- J. Alvin Thompson ruled against plaintiff Pierre Konowaloff, having used act of state doctrine "in which U.S. courts don't examine the validity of foreign governments' expropriation orders." http://www.csmonitor.com/USA/Latest-News-Wires/2014/0322/Van-Gogh-painting-Why-Yale-can-keep-120-million-painting?utm_source=Center+for+Art+Law+General+List&utm_campaign=1a83f0be0d-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-1a83f0be0d-346773625 Our earlier report on Konowaloff claims available at http://itsartlaw.com/2012/12/21/konowaloff-v-met-decision-met-can-keep-cezanne/?utm_source=Center+for+Art+Law+General+List&utm_campaign=1a83f0be0d-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-1a83f0be0d-346773625.

Latipac, Inc. v. Metropolitan Museum of Art(N.Y.S. Mar. 10, 2014) -- Plaintiff and Defendant own two identical items and Plaintiff seeks to sell it. Museum is understood to be denying the authenticity of the object owned by the Plaintiff (see Museum item: Head of King David, ca. 1145, http://www.metmuseum.org/toah/works-of-art/38.180?utm_source=Center+for+Art+Law+General+List&utm_campaign=1a83f0be0d-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-1a83f0be0d-346773625) and Plaintiff is seeking injunction against slander of title and defamation among other actions.

Cramer v. Calder Foundation, (S.D.N.Y. Feb. 28, 2014) -- case involving authenticity of a Calder sculpture owned by the Gerald Cramer Estate. Causes of action include product disparagement and antitrust violations. Attorneys for the estate are Michael Lacher and Adam Rader.

Bilinski, et al v. Keith Haring Foundation, Inc, Complaint, 14-cv-1085 (S.D.N.Y. Feb. 21, 2014) -- last week Brian Kerr filed a complaint against the Keith Haring Foundation, accusing it of defamation, interference with business relations and false advertising in violation of Trademark Law among other illegal actions. The case is assigned to Judge Cote.

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.

May 9, 2014

Post-Postscript to "Nazis, Monuments Men, Hidden Treasures, and the Restitution of Looted Art"

By Leila Amineddoleh

In the April 18th postscript to the article I authored in the Spring issue of the EASL Journal entitled "Nazis, Monuments Men, Hidden Treasures, and the Restitution of Looted Art", I examined new legal issues related to the Munich Art Trove (the collection of artwork that was seized from Cornelius Gurlitt in 2012). In that blog post, I stated, "Some of the biggest questions will occur after Gurlitt's death." Now less than three weeks after the posting of that blog entry, it was announced that the octogenarian passed away on May 6th. Before his death, Gurlitt's attorney informed the public that his client did set provisions for the works in his will. It was revealed this week that Gurlitt bequeathed his entire collection to a Swiss museum, Kunstmuseum Bern.

The museum announced that it is "surprised and delighted" to have the paintings left to its collection. However the museum recognizes that this gift brings "a considerable burden of responsibility and a wealth of questions of the most difficult and sensitive kind, and questions in particular of a legal and ethical nature." The museum has also indicated that it will abide by the Washington Principles in resolving restitution claims, if the institution moves forward and accepts the gift.

The Swiss museum was surprised to learn of this gift because it previously had no relationship with Gurlitt. In bequeathing the entire collection to Kunstmuseum Bern, the deceased left nothing to Germany; perhaps this is due to Gurlitt's outrage of the German government's seizure of the works.

May 14, 2014

Center for Art Law Updates

The following case selection first appeared in the Center for Art Law May newsletter:

• Marjorie Maciunas v. George Maciunas Foundation (N.Y., 2014) -- Plaintiff, resident of Virginia, agreed to sell three works by George Maciunas to the Foundation and she is seeking either return of the property or payment owed to her. Founded by Harry Stendhal in 2009, George Maciunas Foundation Inc. has been active since November 2011. George Maciunas was a Lithuanian-born American artist who died in 1978. Complaint does not seem to explain the relationship between the artist and eponymous plaintiff.

• Feritta III and Maclean v. Knoedler Gallery, 14 Civ. 2259 (S.D.N.Y. Apr. 1, 2014) -- Patterson Belknap Webb & Tyler LLP filed yet another complaint against Knoedler Gallery et all alleging selling a forged Rothko to their clients in 2008. The work that is now believed to be a forgery from the Rosales trove was titled Untitled (Orange, Red and Blue).

• Kolodny v. Meyer, Dorfman and Dorfman Projects LLP, 14 Civ. 3354 (S.D.N.Y. May 8, 2014) -- the case brought by Grossman LLP involves sale of multiple Jasper Johns artworks believed to be stolen by the defendant James Meyer, John's studio assistant. Plaintiff purchased some of the stolen art from Defendants having received assurances that the works could be lawfully sold by Defendants.

• Thome v. Calder Foundation, 14 Civ. 3446 (S.D.N.Y. May. 13, 2014) -- Calder Foundation continues making headlines, this time it is being sued for antitrust violations, including conspiracy of monopolization and restraint of trade, having denied authentication and inventory numbers for the stage set created before Calder's death.

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.

May 22, 2014

Center for Art Law Updates

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

• Marjorie Maciunas v. George Maciunas Foundation (N.Y., 2014) -- Plaintiff, resident of Virginia, agreed to sell three works by George Maciunas to the Foundation and she is seeking either return of the property or payment owed to her. Founded by Harry Stendhal in 2009, George Maciunas Foundation Inc. has been active since November 2011. George Maciunas was a Lithuanian-born American artist who died in 1978. Complaint does not seem to explain the relationship between the artist and eponymous plaintiff.

• Feritta III and Maclean v. Knoedler Gallery, 14 Civ. 2259 (S.D.N.Y. Apr. 1, 2014) -- Patterson Belknap Webb & Tyler LLP filed yet another complaint against Knoedler Gallery et all alleging selling a forged Rothko to their clients in 2008. The work that is now believed to be a forgery from the Rosales trove was titled Untitled (Orange, Red and Blue).

• Kolodny v. Meyer, Dorfman and Dorfman Projects LLP, 14 Civ. 3354 (S.D.N.Y. May 8, 2014) -- the case brought by Grossman LLP involves sale of multiple Jasper Johns artworks believed to be stolen by the defendant James Meyer, John's studio assistant. Plaintiff purchased some of the stolen art from Defendants having received assurances that the works could be lawfully sold by Defendants.

• Thome v. Calder Foundation, 14 Civ. 3446 (S.D.N.Y. May. 13, 2014) -- Calder Foundation continues making headlines, this time it is being sued for antitrust violations, including conspiracy of monopolization and restraint of trade, having denied authentication and inventory numbers for the stage set created before Calder's death.

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.

June 11, 2014

Law in a Flash: A Quick (But Insightful) Discussion of Legal Considerations for Flash-Sale Sites

Fashion Committee Meeting

Date: Thursday, June 12th
Time: 12:30pm - 1:30pm
Location: International Trademark Association, 655 Third Avenue, 10th Floor, New York, NY 10017
Please RSVP to Beth Gould at bgould@nysba.org

11:59am: You click the bookmark at the top of your browser that will take you to your favorite flash sale site. With less than 60 seconds between you and deep discounts on designer fashions, you can almost feel the fresh, new leather of your future handbag.

12:00pm: You refresh the page, immediately click the link to the "Estate Sale" for those high-end designer bags you could otherwise never afford, and buy that satchel you've been lusting over for ages.

5-7 Business Days Later: Your prized purchase arrives and it's not what you expected. Rather than a pristine product, "NWT", you open up a "gently worn" handbag, complete with scuffs and scratches. Apparently, "Estate" meant "used"...

As if luxury marketing wasn't difficult enough to decode, the online world has added an additional wrinkle for the consumer by offering products for sale without giving the consumer the opportunity to examine the product in person. Add in the frantic rush of a flash sale and the consumer's ability to consider and research their purchase is all but lost.

Flash sale sites present an array of legal issues unique to this particular eCommerce platform. Join NYSBA's Fashion Law Committee for a lunchtime discussion of these issues, including third-party distribution standards, deceptive marketing, and second hand sales. Special guest, Ireen Lizewski, Senior Event Manager at ideeli.com, will provide an insider perspective and overview of the matters she encounters on the "other side" of a flash sale platform.


June 13, 2014

HathiTrust Racks Up Fair Use Victory But Heads Back to the Stacks on Preservation Copies

By Barry Werbin and Bryan Meltzer, Herrick, Feinstein LLP

In a much-awaited decision, the Second Circuit held on June 10, 2014, that university libraries are permitted to electronically scan their copyrighted books to (i) create a full-text searchable database, and (ii) provide print-disabled people with access to the copyrighted works. In Authors Guild, Inc. v. HathiTrust, the Court found such uses by the HathiTrust Digital Library (HDL), set up by the HathiTrust -- an organization comprised of colleges, universities and other nonprofit organizations that contributed their book collections to create a massive digital database of over 10 million works -- were protected by the copyright fair use doctrine. The Court remanded on the issue of whether HathiTrust's "preservation" copies were protected as fair use.

As a threshold matter, the Court found that the U.S. association and union plaintiffs lacked standing under §501 of the Copyright Act to bring copyright claims on behalf of their member authors. That section prohibits a copyright holder from choosing a third party to bring suit on his or her behalf. On the other hand, the Court found that the foreign association and union plaintiffs had standing to bring suit on behalf of their members because foreign laws provided them with exclusive rights to enforce the copyrights of their foreign members.

The Court then proceeded to apply the fair use doctrine to the plaintiffs' claims. The Court noted that the Copyright Act "'is designed [] to stimulate activity and progress in the arts for the intellectual enrichment of the public.'" Based on this intention, the fair use doctrine "allows the public to draw upon copyrighted materials without the permission of the copyright holder in certain circumstances."

In assessing a fair use defense under §107 of the Copyright Act, courts are required to consider the following four nonexclusive factors: (1) the purpose and character of the use (e.g., for a commercial or educational purpose); (2) the nature of the copyrighted work; (3) the amount of the copyrighted portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. With respect to the first factor, it has become de rigueur for courts to assess whether the purpose of an allegedly infringing use is "transformative" or not, that is, "whether the work 'adds something new, with a further purpose or different character, altering the first with new expression, meaning or message...'" (Quoting Campbell v. Acuff‐Rose Music, Inc., 510 U.S. 569, 579 (1994).)

As for the HDL's full-text searchable database, the Court found that such use is protected by the fair use doctrine because (i) it constitutes a "transformative" use that adds something new "with a different purpose and a different character" from the copyrighted material (emphasizing, however, that contrary to the District Court's opinion, "a use does not become transformative by making an 'invaluable contribution to the progress of science and cultivation of the arts...." but by serving "a new and different function from the original work"); (ii) while there is no dispute the plaintiffs' works are protected by copyright, the second factor is of "'limited usefulness where,' as here, 'the creative work . . . is being used for a transformative purpose,'" (citing to the Court's own opinions in Cariou v. Prince and Bill Graham Archives v. Dorling Kindersley Ltd.); (iii) the extent of the libraries' copying of the copyrighted material is not excessive and is reasonably necessary to enable the full-text search function (which by its nature required copying of the entire texts of the books); and (iv) because the full-text search does not serve as a "substitute" for the books being searched, the plaintiffs will not suffer any non-speculative harm (the Court emphasizing that the only type of economic injury to be considered under the fourth fair use factor is that which results from the secondary use serving "as a substitute for the original work"). Based on these findings, the Court held that while the works were the type that would otherwise be protected by the Copyright Act, the full-text searchable database constituted a fair use of the works.

Of particular interest is the Court's observation that its finding of a transformative use here was even more compelling than the transformative uses the Court had approved in Cariou and Bill Graham Archives because "full‐text search adds a great deal more to the copyrighted works" (a likely portent of how the Court will soon rule in the pending Google Books appeal).

Of great concern to the plaintiff author groups under the fourth factor was an alleged security risk posed by the existence of the HDL that "might impose irreparable damage on the Authors and their works" if, hypothetically, "hackers were able to obtain unauthorized access to the books stored at the HDL" and then freely disseminate globally those digital copies, thereby decimating the traditional market for those works. However the Court rejected this theory, finding that the record on appeal documented "the extensive security measures the Libraries have undertaken to safeguard against the risk of a data breach."

Similarly, the Court also found that providing access to the blind and print-disabled is a fair use of the copyrighted material. While the Court found that such use is not "transformative" (as was the full-text searchable database) and appears to create "derivative works over which the author ordinarily maintains control," it found that "transformative" use is not "absolutely necessary" for a finding of fair use. In particular, the legislature and Supreme Court have both stated that making copyrighted materials accessible for the use of blind people is protected by the fair use doctrine. The Court further found that in the "unique circumstances presented by print‐disabled readers," (i) the extent of the libraries' retention of the works is reasonable, and (ii) that the market for books accessible to the handicapped is so insignificant that the value of the copyrighted material would not suffer. Accordingly, the Court held that "the doctrine of fair use allows the Libraries to provide full digital access to copyrighted works to their print-disabled patrons."

The Court also considered whether the HDL could preserve digital copies of the scanned books and permit its member libraries to replace their copies if (i) the member already owned an original,(ii) the member's original copy was lost, destroyed or stolen, and (iii) a replacement copy was not available at a fair price. The Court found that this issue was not ripe for its determination primarily because the district court record had not established whether any of the plaintiffs' copyrighted materials were irreplaceable at a fair price and, "thus, would be potentially subject to being copied by the Libraries in case of the loss or destruction of an original." If the plaintiffs' works could be replaced at a fair price, then the works would not be replaced by the HDL. Accordingly, the Court held this claim did not "present a live controversy for adjudication," vacated the district court's judgment "insofar as it adjudicated this issue without first considering whether plaintiffs have standing to challenge the preservation use of the HDL", and remanded for the district court to make that determination.

Finally, the Court held that the plaintiffs' claims against defendant the University of Michigan regarding its project known as the "Orphan Works Project" or "OWP" was not ripe for adjudication, because the program had been suspended after the case commenced, and it was unclear whether the University would reinstitute the OWP in a manner that would infringe the plaintiffs' copyrights and cause them harm.

The trajectory of the Second Circuit's application of the "transformative" use doctrine continues its climb in HathiTrust, following on the heels of the Courts' expansive application of fair use in Cariou v. Prince. With the Google Books case coming up next, and other Circuits having already adopted the transformative use test, the copyright bar is readying itself for transformative use as the fair use paradigm of the 21st century, particularly as digital technologies continue to push the envelope of an aging Copyright Act.

June 20, 2014

Klinger v. Conan Doyle Estate Appeal

By Joseph Perry

Oral Argument and Holding

The Seventh Circuit of Appeals heard oral arguments from the parties on May 22nd, in which the Conan Doyle Estate challenged the district court's judgment in two ways: 1) the district court had no subject matter jurisdiction because there was no actual legal controversy, and 2) the copyrights of round, complex characters like Sherlock Holmes remain protected under copyright law until the last Conan Doyle story falls into the public domain. On June 16th, the Seventh Circuit affirmed the district court's motion for summary judgment and declaratory judgment in favor of Klinger, which stated that materials in 50 pre-1923 Sherlock Holmes novels and stories are in the public domain, but materials in post-1923 Sherlock Holmes stories are protected under copyright law.

Jurisdiction

The Seventh Circuit held that the district court had federal subject matter jurisdiction over Klinger's lawsuit because the Conan Doyle Estate's threat to sue Pegasus Books for copyright infringement and to block distribution of In the Company of Sherlock Holmes created a sufficient threat to constitute an actual controversy. The Conan Doyle Estate argued that Klinger's suit was unripe because In the Company of Sherlock Holmes was not complete, and thus, copyright infringement could not be decided until the book was finished. The court rejected the Conan Doyle Estate's argument because the only issue was whether Klinger could "copy the characters of Holmes and Watson as they are depicted in the stories and novels of Arthur Conan Doyle that are in the public domain," which could be determined without knowing the contents of the book. Thus, the Seventh Circuit held that the district court had federal subject matter jurisdiction over Klinger's lawsuit.

Copyright Infringement

The Seventh Circuit held that the pre-1923 Sherlock Holmes and Dr. Watson characters were in the public domain. The court rejected the Conan Doyle Estate's argument that a "'complex' character in a story, such as Sherlock Holmes or Dr. Watson, whose full complexity is not revealed until a later story, remains under copyright until the later story falls into the public domain." Essentially, the Conan Doyle Estate sought "135 years (1887-2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story," and the court stated that "we cannot find any basis in statute or case law for extending a copyright beyond its expiration. Thus, the Seventh Circuit held that the pre-1923 Sherlock Holmes and Dr. Watson characters are in the public domain.

Conclusion

The Seventh Circuit of Appeals affirmed the district court's motion for summary judgment and declaratory judgment in favor of Klinger, which stated that materials in 50 pre-1923 Sherlock Holmes novels and stories are in the public domain, but materials in post-1923 stories are protected under copyright law.

The Seventh Circuit's opinion is here: doyle.pdf

July 8, 2014

Center for Art Law Case Updates

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

• Schoeps v. Free State of Bavaria, Case No. 13 Civ. 2048 (JSR) (S.D.N.Y June 27, 2014) -- J. Rakoff denies jurisdiction in a Nazi-era looted art dispute over Picasso's "Madame Soler" portrait.

http://itsartlaw.com/2014/07/07/case-review-schoeps-v-free-state-of-bavaria-june-2014/?utm_source=Center+for+Art+Law+General+List&utm_campaign=33b55f7965-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-33b55f7965-346773625

• Sotheby's v. Kwok (UK, June 2014) -- Auction house sues a client for £3m for failure to pay for purchases.

• [U.S. v "Madonna and Child"] (June 2014)" -- On June 23, U.S. Attorney's Office in New York filed a forfeiture action to cease a 13th-century painting that was probably illegally imported into the United States. The painting went missing from a Swiss safety deposit in the late 1980s.

http://www.courthousenews.com/2014/06/24/68973.htm?utm_source=Center+for+Art+Law+General+List&utm_campaign=33b55f7965-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-33b55f7965-346773625

• U.S. v. Mask of Ka-Nefer Nefer, No. 12-2578 (8th Cir. June 12, 2014) -- on appeal, the technical decision to deny the government to amend civil forfeiture complaint was affirmed. Judge Murphy concurred, but he wrote "While this case turns on a procedural issue, courts are bound to recognize that the illicit sale of antiquities poses a continuing threat to the preservation of the world's international cultural heritage. Museums and other participants in the international market for art and antiquities need to exercise caution and care in their dealings in order to protect this heritage and to understand that the United States might ultimately be able to recover such purchases."

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.

July 26, 2014

Center for Art Law Case Updates

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

Matter of Richard L. Feigen & Company, 824996. (N.Y.T.C, July 22, 2014) -- J. Winnifred Maloney of the Division of Taxation denied art dealer Richard Feigen sales tax refund claim from 2011 seeking $215,626 on the sale of a forged Max Ernst painting "La Foret" that was sold in 2004. To recover the sales tax, the dealer should have claimed his refund within a three-year window after filing his sales tax return, which closed in 2008. While the dealer argued he should have been able to avail himself of the statute of limitations contemplated by the CPLR 213, and thus have six years, the decision was based on Tax Law §1139(c), which stipulates that financial matters close sooner. The decision upheld earlier determinations of the Division of Taxation's Audit Division and the Bureau of Conciliation and Mediation Services. In other words, this ruling allows the U.S. government to reap financial benefits from unfortunate sales of fake art; whether the risk is to be born exclusively by the dealer may yet be revisited on appeal. Attorney for Feigen, Malcolm Taub, partner at Davidoff Hutcher & Citron.

Anders Karlsson v. John Leo Mangan III, Art Possible LLC, et al.,2:14-cv-04514-R-JPR (S.D.C.A, Jun. 11, 2014) -- Arizona Plaintiff is seeking damages from residents in New York, Florida, Colorado and California, alleging multiple fraudulent schemes to sell fake artworks of famous artists together with fake authentication and provenance documents. Plaintiff is seeking, among other reliefs, compensatory damages, actual damages, punitive damages and attorney fees. Attorney representing Plaintiff is Meir Westreich.

Schoeps v. Free State of Bavaria, Case No. 13 Civ. 2048 (JSR) (S.D.N.Y June 27, 2014) -- J. Rakoff denies jurisdiction in a Nazi-era looted art dispute over Picasso's "Madame Soler" portrait.

http://itsartlaw.com/2014/07/07/case-review-schoeps-v-free-state-of-bavaria-june-2014/?utm_source=Center+for+Art+Law+General+List&utm_campaign=c432440020-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-c432440020-346773625

Sotheby's v. Kwok (UK, June 2014) -- Auction house sues a client for £3m for failure to pay for purchases.

http://www.telegraph.co.uk/culture/art/art-news/10932158/Sothebys-sues-art-sale-glamour-girl-for-3m-after-client-fails-to-pay.html?utm_source=Center+for+Art+Law+General+List&utm_campaign=c432440020-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-c432440020-346773625

U.S. v "Madonna and Child" (June 2014)" -- On June 23, the U.S. Attorney's Office in New York filed a forfeiture action to cease a 13th-century painting that was probably illegally imported into the United States. The painting went missing from a Swiss safety deposit in the late 1980s.

http://www.courthousenews.com/2014/06/24/68973.htm?utm_source=Center+for+Art+Law+General+List&utm_campaign=c432440020-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-c432440020-346773625

U.S. v. Mask of Ka-Nefer Nefer, No. 12-2578 (8th Cir. June 12, 2014) -- on appeal, the technical decision to deny the government to amend civil forfeiture complaint was affirmed. Judge Murphy concurred, but he wrote: "While this case turns on a procedural issue, courts are bound to recognize that the illicit sale of antiquities poses a continuing threat to the preservation of the world's international cultural heritage. Museums and other participants in the international market for art and antiquities need to exercise caution and care in their dealings in order to protect this heritage and to understand that the United States might ultimately be able to recover such purchases."


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.

August 25, 2014

"Art Fairs: An Irresistible Force in the Art World?"

Are brick and mortar art galleries are becoming the loss leaders in an art world, potentially spiraling beyond viable limits? With more than ninety art fairs now defining the rhythm of globalized art business, how have relationships amongst artists, gallerists, and collectors been altered?

A panel comprised of gallerists and attorneys recently explored and critiqued the impacts and challenges - legal, ethical and business - of the rise of art fairs.

This program, which was organized by EASL's Fine Arts Committee and held at Sotheby's Institute of Art on May 27, 2014, was part of an ongoing initiative to create dialogue amongst lawyers, artists and emerging and established art professionals working in the primary or secondary markets.

We have prepared a dedicated audio recording and transcript in two Parts.

Part I: Gallerists Edward Winkleman and Elizabeth Dee, available at https://stropheus.com/blog/2014/08/13/nyc-art-fairs/

Part II: Attorneys Richard M. Lehun and Nicholas M. O'Donnell (available in about two weeks)

Moderator: Judith B. Prowda, Chair, Committee on Fine Arts, New York State Bar Association, Entertainment, Arts and Sports Law (EASL) Section, Attorney and Faculty at Sotheby's Institute of Art

Panel:

Edward Winkleman, Gallerist

Elizabeth Dee, Gallerist

Richard M. Lehun, Attorney at Stropheus Art Law

Nicholas M. O'Donnell, Litigation Partner at Sullivan & Worcester LLP

"Everything You Wanted to Know About Gallery Ethics (But Were Afraid to Ask)"

A slew of cases involving some of the art world's most prolific figures have raised the ever-growing specter of fiduciary obligations of gallerists and dealers. Gallerists are by definition fiduciaries on a number of levels, often without being aware of this. What most art context actors don't know is that fiduciary duties trump contracts or oral agreements, and are imposed by courts. In fact, the core of gallery ethics cannot be understood without knowing what fiduciary obligations are.

Last October, at Sotheby's Institute of Art EASL's Committee on Fine Arts held an interactive panel discussion on cutting edge insights into best practices for gallerists and dealers and how they can limit their professional exposure. The speakers - lawyers and gallerists - also explored many other ethical issues that gallerists, dealers, and artists need to understand now more than ever.

This program was part of an ongoing initiative to create dialogue amongst lawyers, artists and emerging and established art professionals working in the primary or secondary markets. We have prepared a dedicated audio recording and transcript, available at https://stropheus.com/blog/2014/01/22/art-gallery-ethics/.

Panelists:
Andrea Crane, Andrea Crane Fine Art
Richard Lehun, Stropheus Art Law
Serra Pradhan, Marianne Boesky Gallery
Judith B. Prowda, Chair, Committee on Fine Arts, New York State Bar Association, Entertainment, Arts and Sports Law (EASL) Section, Attorney and Faculty at Sotheby's Institute of Art

September 18, 2014

Kienitz v. Sconnie Nation LLC.- Seventh Circuit

By Barry Werbin

A significant new decision (9/15/14) by the Seventh Circuit has affirmed the district court's finding of fair use in Kienitz v. Sconnie Nation LLC, but expressly rejected the concept of transformative use. This was a well-publicized case that used a posterized, low resolution, photograph of Paul Soglin, the mayor of Madison, Wisconsin, on a T-shirt to make a political commentary about his having participated in the Mifflin Street Block Party many years earlier.

This is the first Circuit court to expressly reject transformative use, and it has done so rather emphatically. The court found it unnecessary to address transformative use, finding that it was "not one of the statutory factors" under Section 107, despite the Supreme Court having previously mentioned it in Campbell v. Acuff-Rose Music. It specifically expressed skepticism about the Second Circuit's application of transformative use in the Cariou case, emphasizing that: "asking exclusively whether something is 'transformative' not only replaces the list in §107 but also could override 17 U.S.C. §106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2). Cariou and its predecessors in the Second Circuit do not explain how every 'transformative use' can be 'fair use' without extinguishing the author's rights under §106(2)."

The Court ultimately affirmed the finding of fair use based on a direct application of the four factors in §107, placing particular emphasis on the fourth factor concerning the effect on the potential market for the copyrighted photograph: "A t-shirt or tank top is no substitute for the original photograph. Nor does Kienitz say
that defendants disrupted a plan to license this work for apparel. Kienitz does not argue that defendants' products have reduced the demand for the original work or any use of it that he is contemplating." The Court further emphasized that Kienitz had licensed the photograph to Soglin (which had been taken at Soglin's 2011 inauguration) for "no royalty" and was "posted on a public website for viewing and downloading without cost."

The fact that the defendant intended the shirt to make a political statement also influenced the Court's decision under the first factor. Nevertheless, the Court took the further unusual step of noting its displeasure with "lazy appropriators," who were not intended to be protected by §107, emphasizing that the defendant did not need to use the plaintiff's photograph to create its lampoon, and that the T-shirt was not used to mock (parody) the photograph itself but Mayor Soglin. The Court further noted that Kienitz, as a photographer, could have his livelihood negatively affected if his clients going forward believed portraits taken for dignified purposes could end up on T-shirts and be used in a derogatory manner. Nevertheless, because Kienitz failed to raise these additional arguments, the Court was compelled to find fair use.

Whether this signifies a slow shift among courts away from transformative use remains to be seen, but if so, that would be a sea change. Kienitz v Sconnie Nation - 7th Circuit.pdf

September 22, 2014

Center for Art Law Case Updates

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

• Statkun v. Klemens Gasser & Tanja Grunert, Inc, 13 Civ. 5570 (S.D.N.Y. Mar. 2014) -- J. Kaplan found VARA/Copyright Act Sec. 106A violation and awarded $3,500 statutory damages to the artist who's work was cut down to size by an art dealer.

• Matter of Richard L. Feigen & Company, 824996. (N.Y.T.C, July 22, 2014) -- J. Winnifred Maloney of the Division of Taxation denied art dealer Richard Feigen sales tax refund claim from 2011 seeking $215,626 on the sale of a forged Max Ernst painting "La Foret" that was sold in 2004. To recover the sales tax, the dealer should have claimed his refund within a three-year window after filing sales tax return, which closed in 2008. While the dealer argued he should have been able to avail himself of the statute of limitations contemplated by the CPLR 213, and thus have six years, the decision was based on Tax Law §1139(c), which stipulates that financial matters close sooner. The decision upheld earlier determinations of the Division of Taxation's Audit Division and the Bureau of Conciliation and Mediation Services. In other words, this ruling allows the US government to reap financial benefits from unfortunate sales of fake art; whether the risk is to be born exclusively by the dealer may yet be revisited on appeal. Attorney for Feigen, Malcolm Taub, partner at Davidoff Hutcher & Citron.

• Anders Karlsson v. John Leo Mangan III, Art Possible LLC, et al.,2:14-cv-04514-R-JPR (S.D.C.A, Jun. 11, 2014) -- Arizona Plaintiff is seeking damages from residents in New York, Florida, Colorado and California alleging multiple fraudulent schemes to sell fake artworks of famous artists together with fake authentication and provenance documents. Plaintiff is seeking, among other reliefs, compensatory damages, actual damages, punitive damages and attorney fees. Attorney representing Plaintiff is Meir Westreich.

• Sotheby's v. Kwok (UK, June 2014) -- Auction house sues a client for £3m for failure to pay for purchases. (http://www.telegraph.co.uk/culture/art/art-news/10932158/Sothebys-sues-art-sale-glamour-girl-for-3m-after-client-fails-to-pay.html?utm_source=Center+for+Art+Law+General+List&utm_campaign=d8c39e7b14-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-d8c39e7b14-346773625)

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.

October 2, 2014

Fine Art Committee Program Report

By Judith Prowda, Chair, EASL Fine Arts Committee

Are brick and mortar art galleries becoming the loss leaders in an art world, potentially spiraling beyond viable limits? With more than 90 art fairs now defining the rhythm of globalized art business, how have relationships amongst artists, gallerists, and collectors been altered?

A panel comprised of gallerists and attorneys recently explored and critiqued the impacts and challenges - legal, ethical and business - of the rise of art fairs.

This program, which was organized by EASL's Fine Arts Committee and held at Sotheby's Institute of Art on May 27th, was part of an ongoing initiative to create dialogue amongst lawyers, artists and emerging and established art professionals working in the primary or secondary markets.

Moderator: Judith B. Prowda, Chair, Committee on Fine Arts, NYSBA Entertainment, Arts and Sports Law (EASL) Section, Attorney and Faculty at Sotheby's Institute of Art

Panel:

Edward Winkleman, Gallerist

Elizabeth Dee, Gallerist

Richard M. Lehun, Attorney at Stropheus Art Law

Nicholas M. O'Donnell, Litigation Partner at Sullivan & Worcester LLP

We have prepared audio-visual recordings and transcripts in two Parts.

Part I: Gallerists Edward Winkleman and Elizabeth Dee, available at https://stropheus.com/blog/2014/08/13/nyc-art-fairs/

Part II: Attorneys Richard M. Lehun and Nicholas M. O'Donnell , available at https://stropheus.com/blog/2014/09/10/rise-nyc-art-fairs-nysba-event-part-2-2/

October 8, 2014

Center for Art Law Case Updates


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

William Roger Dean v. James Cameron et al. (S.D.N.Y. Sept. 17, 2014) -- J. Furman granted a motion to dismiss a copyright suit brought by artist William Roger Dean, ruling in favor of Hollywood defendants. Plaintiff claimed that the defendants, through their work on the blockbuster 2009 feature film Avatar, infringed on his copyright to 14 of his original works. The court noted that within the meaning of copyright law, using "good eyes and common sense," and considering the work as a whole, no substantial similarity exists between Avatar and the protectable elements of Dean's copyrighted works.

U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts From Peru (S.D.Fla., Sept. 11, 2014) -- Last September, defendant, Peruvian national Jean Combe Fritz, filed a motion to dismiss US government's forfeiture of cultural property claims on the grounds that i) the court lacked subject matter jurisdiction, ii) Fritz was denied due process, and iii) plaintiffs failed to state a cause of action. A year later, on September 11, 2014, J. Lenard of the United States District Court, Southern District of Florida, denied the motion noting that none of the three grounds were merited.

Franco Fasoli (A.K.A. "Jaz") v. Voltage Pictures, LLC, 1:14-cv-06206 (N.D.Il. 2014) -- Plaintiff visual artists "Jaz," "Ever," and "Other" filed a copyright infringement claim alleging that multiple identified and unidentified Hollywood defendants blatantly misappropriated the artist's collaborative mural, protected under Argentina's copyright law, by creating an "infringing work" on the set of the now released film The Zero Theorem, which was filmed in Romania in 2012. Plaintiffs seek relief in the form of a preliminary and permanent injunction, impoundment and disposition of infringing articles, an order of accounting of gains and profits, and monetary damages. Plaintiffs are represented by Foley & Lardner LLP.

Estate of James A. Elkins v. Commissioner of Internal Revenue (5th Cir., Sept. 15, 2014) -- The Estate of James A. Elkins brought legal action against the Commissioner of Internal Revenue after the IRS refused to allow any discount against the Decedent's fractional ownership interest in 64 pieces of art work which he co-owned with his three adult children. Three expert witnesses for the Estate testified that application of the "willing buyer/willing seller" test would produce prices for the Decedent's undivided interests that would be substantially lower than the fair market value of his pro-rata shares, and thus a buyer would expect a fractional-ownership discount which should be considered in assessing value for tax purposes. In 2013, the Tax Court agreed that some discount should apply, and proposed it to be 10%. On 15 September, 2014, the Fifth Circuit affirmed the finding that a discount should apply to the fractional ownership interests, but rejected the baseless 10% discount applied by the Tax Court in favor of the higher discount percentages provided by the Estate.

Marguerite Hoffman vs. L&M Arts, et. al, 3:10-CV-0953-D (N.D. Tex 2014) -- When Marguerite Hoffman quietly sold her Rothko she 'bargained for confidentiality' because the painting was promised to the Dallas Museum of Art. Shortly thereafter the painting turned up for a public auction and Hoffman sued the dealer and the subsequent buyer for not keeping her sale secret, per terms of the sales agreement. (http://frontburner.wpengine.netdna-cdn.com/wp-content/uploads/2014/09/Order-Dismissing-Claim-Against-DM-SC-With-Prejudice.pdf?utm_source=Center+for+Art+Law+General+List&utm_campaign=f2a104a2e9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-f2a104a2e9-346773625) On 4 September 2014, Texas district court dismissed Hoffman's claim against the buyer and ruled that she can only recover benefit-of-the bargain damages from the seller. https://casetext.com/case/hoffman-v-l-m-arts?utm_source=Center%20for%20Art%20Law%20General%20List&utm_campaign=f2a104a2e9-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-f2a104a2e9-346773625


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.

November 5, 2014

Center for Art Law Case Updates

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

U.S. v. Ramnarine (S.D.N.Y. 16 Oct. 2014) - J. Koeltl, sentenced Brian Ramnarine, former owner of Empire Bronze Art Foundry in Long Island City to 2 ½ years imprisonment and ordered to pay $34,250 in restitution after pleading guilty to selling and attempting to sell fake sculptures that he falsely attributed to such artists as Jasper Johns, Robert Indiana and Saint Clair Cemin.

Schiffman v. Stewart, 2:2014cv06901 (C.D. Cal., 4 Sept. 2014) - Celebrity photographer Bonnie Schiffman filed a copyright infringement suit against musician Rob Stewart for using a promotional picture, which she claims is "substantially similar" to one she took in 1981. The original picture taken by Schiffman was used on the cover of Stewart's album "Storyteller," and she is seeking $2.5 million in damages.

MAFG Art Fund, LLC v. Gagosian, 653189/2012 (N.Y.S.2d, Sept 2014) - In ongoing litigation between the plaintiff billionaire financier Ronald O. Perelman and the defendant art dealer Larry Gagosian over the sale of a Cy Twombly painting, Perelman subpoenaed major players in the art business, including galleries, art dealers, auction houses, and artists, seeking information relating to transactions of which Gagosian has been a party. Gagosian's lawyers assert that these actions are all an effort to "harass Gagosian and disparage the gallery."

Franco Fasoli (A.K.A. "Jaz") v. Voltage Pictures, LLC, 1:14-cv-06206 (N.D.Il. 2014) - The plaintiffs, visual artists "Jaz," "Ever," and "Other", filed a copyright infringement claim alleging that multiple identified and unidentified Hollywood defendants blatantly misappropriated the artists' collaborative mural, protected under Argentina's copyright law, by creating an "infringing work" on the set of the film The Zero Theorem, which was filmed in Romania in 2012. The plaintiffs seek relief in the form of a preliminary and permanent injunction, impoundment and disposition of infringing articles, an order of accounting of gains and profits, and monetary damages. The plaintiffs are represented by Foley & Lardner LLP.

Marguerite Hoffman vs. L&M Arts, et. al, 3:10-CV-0953-D (N.D. Tex 2014) - When Marguerite Hoffman quietly sold her Rothko, she 'bargained for confidentiality' because the painting was promised to the Dallas Museum of Art. Shortly thereafter the painting turned up for a public auction, and Hoffman sued the dealer and the subsequent buyer for not keeping her sale secret, per terms of the sales agreement. On September 4, 2014, a Texas district court dismissed Hoffman's claim against the buyer and ruled that she can only recover benefit-of-the bargain damages from the seller. https://casetext.com/case/hoffman-v-l-m-arts?utm_source=Center%20for%20Art%20Law%20General%20List&utm_campaign=e8afc68020-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-e8afc68020-346773625


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.

January 4, 2015

Center for Art Law Case Update

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

U.S. v. Ramnarine (S.D.N.Y. 16 Oct. 2014) - J. Koeltl, sentenced Brian Ramnarine, former owner of Empire Bronze Art Foundry in Long Island City to 2 ½ years imprisonment and ordered to pay $34,250 in restitution after pleading guilty to selling and attempting to sell fake sculptures that he falsely attributed to such artists as Jasper Johns, Robert Indiana and Saint Clair Cemin.
Schiffman v. Stewart, 2:2014cv06901 (C.D. Cal., 4 Sept. 2014) -Celebrity photographer Bonnie Schiffman filed a copyright infringement suit against musician Rob Stewart for using a promotional picture, which she claims is "substantially similar" to one she took in 1981. The original picture taken by Schiffman was used on the cover of Stewart's album "Storyteller," and she is seeking $2.5 million in damages.

MAFG Art Fund, LLC v. Gagosian, 653189/2012 (N.Y.S.2d, Sept 2014) - In ongoing litigation between Plaintiff billionaire financier Ronald O. Perelman, and Defendant art dealer Larry Gagosian over the sale of a Cy Twombly painting, Perelman subpoenaed major players in the art business including galleries, art dealers, auction houses, and artists, seeking information relating to transactions of which Gagosian has been a party. Gagosian's lawyers assert that these actions are all an effort to "harass Gagosian and disparage the gallery."

Franco Fasoli (A.K.A. "Jaz") v. Voltage Pictures, LLC, 1:14-cv-06206 (N.D.Il. 2014) - Plaintiff visual artists "Jaz," "Ever," and "Other" filed a copyright infringement claim alleging that multiple identified and unidentified Hollywood defendants blatantly misappropriated the artist's collaborative mural, protected under Argentina's copyright law, by creating an "infringing work" on the set of the now released film The Zero Theorem, which was filmed in Romania in 2012. Plaintiffs seek relief in the form of a preliminary and permanent injunction, impoundment and disposition of infringing articles, an order of accounting of gains and profits, and monetary damages. Plaintiffs are represented by Foley & Lardner LLP.

Marguerite Hoffman vs. L&M Arts, et. al, 3:10-CV-0953-D (N.D. Tex 2014) -- When Marguerite Hoffman quietly sold her Rothko (http://frontburner.wpengine.netdna-cdn.com/wp-content/uploads/2014/09/Order-Dismissing-Claim-Against-DM-SC-With-Prejudice.pdf?utm_source=Center+for+Art+Law+General+List&utm_campaign=9e9162fc6c-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-9e9162fc6c-346773625) she 'bargained for confidentiality' because the painting was promised to the Dallas Museum of Art. Shortly thereafter the painting turned up for a public auction and Hoffman sued the dealer and the subsequent buyer for not keeping her sale secret, per terms of the sales agreement. On 4 September 2014, Texas district court dismissed Hoffman's claim against the buyer and ruled that she can only recover benefit-of-the bargain damages from the seller. (For the 2011 decision: https://casetext.com/case/hoffman-v-l-m-arts?utm_source=Center%20for%20Art%20Law%20General%20List&utm_campaign=9e9162fc6c-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-9e9162fc6c-346773625)

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.

January 30, 2015

Center for Art Law Case Update

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

Phillips v. Macy's, Inc., 1:2015cv10059 (1st Cir. MA, Jan. 9, 2015) -- Award winning sculptor, David Phillips, originally from Flint, MI, brought a copyright infringement claim against Macy's for reproducing one of his iconic Frog's that decorate the Frog Pond in Boston on the Commons.

Aquino et al v. Zephyr Real Estate LLC, 5:15-cv-00060-NC (N.D. Cal., 6 Jan. 2015) - Amidst mounting tensions over soaring prices and gentrification in San Francisco, eight mural artists filed a complaint against the city's largest independent real estate firm alleging copyright infringement by reproducing their work in a 2013 promotional calendar which advertised "luxury homes."

Cindy Garcia v. Google, Inc., et al., (9th Cir., Nov. 13, 2014) - J. Thomas presiding, a panel of non-recused judges voted in favor of rehearing the 9th Circuit case that previously held that actress and plaintiff Cindy Lee Garcia had a "copyright interest" in her performance in the film "Innocence of Muslims" which gives her the right to have the video taken offline.

Polvent v. Global Fine Arts, Inc., 14-21569-CIV-MORENO (S.D. Fla., 18 Sept. 2014) - J. Federico A. Moreno granted a motion to compel arbitration filed by Defendant, American art dealer Global Fine Arts, Inc. in its copyright dispute with Plaintiff, French artist Jacqueline Polvent. The court ruled in favor of arbitration even though the licensing agreement between the parties, which stipulated for a compulsory arbitration in case of a legal dispute, had expired in 2013, an auto-renew provision provided for a successive and consecutive five-year period unless terminated in writing one-year prior to expiration.

Caraballo, et al. v. The Art Students League of New York, 650522/14 (N.Y.S.2d, July 2014) - Three months after refusing to block the Art Students League of New York's $31.8 million transfer of air rights over its historic West 57th Street building, Manhattan Supreme Court Justice granted summary judgment to the league and its board, finding the 249 petitioner members of the league, who argued that a majority of the league's membership did not approve the transaction and an improper voting process, had raised no triable issue of fact. The judge ruled that the petitioners failed to produce any new evidence to rebut the board's argument that it acted in good faith and with reasonable exercise of its business judgment when it voted to confer the air rights to a real estate development company in 2005.

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.

February 8, 2015

Gaylord v. U.S.

By Barry Werbin

This case involving use of a photo of the Korean War memorial sculpture on a .U.S stamp, has been up and down to the Federal Circuit twice and ongoing for a long time. In this final chapter (we hope), the district court's after-remand copyright damages award in favor of the plaintiff and against the U.S. Postal Service based on a 10% per-unit royalty, resulting in an award of $540,000 from sales of collector stamps sold by the Post Office, plus prejudgment interest, was affirmed by the Federal Circuit. The district court based the royalty on survey evidence showing the Postal Service's commissions in its ordinary course of business, and determined that the Postal Service received $5.4 million in revenue -- "'almost pure profit'"--from unused stamps depicting the image that had been sold to collectors during the limited life of the stamp issue.

Of particular interest is the Federal Circuit's re-affirmance of a reasonable royalty for copyright damages, an idea common in patent cases. The Court noted that: "Consistent with the conclusions of other circuits that have considered the issue, we held [in Gaylord II, 678 F.3d 1339 (Fed. Cir. 2012)] that actual damages for copyright infringement may be based on a reasonable royalty representing 'the fair market value of a license covering the defendant's use.'" While setting a royalty is typically tied to a hypothetical license/royalty negotiation, the Court emphasized that this "determination must be tied to the particular work at issue and its marketplace value--much as, in patent law, the determination must be tied to the particular patented technology and its footprint in the market."

After reviewing all the evidence assessed by the district court, the Federal Circuit concluded that "giving the Postal Service 90% of the profits and Mr. Gaylord 10%--is within the range of reasonable findings from the evidence." This was so even if the Postal Service might have negotiated a flat license fee instead of a running royalty due to "the uniqueness of the work at issue here, including its status as a distinctively recognized symbol of the Korean War for most Americans...."

A copy of the decision is available here Gaylord v. US.pdf

February 14, 2015

Center for Art Law Case Updates

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

Plumb v. Casey, 469 Mass. 593 (Sept. 8, 2014) -- J. Duffly of the Supreme Judicial Court of Massachusetts answered a lingering question regarding consignments of artworks under M.G.L. Chapter 104A § 2b, stating that the delivery of an artwork by consignor and acceptance of the work by consignee is enough to create a consignment, and any lack of a separate written statement of delivery does not destroy the consignment relationship. The court reasoned that the law was established for the purpose of protecting artists rather than galleries.

King v. Park West Galleries, Inc. (MI, 2014) (unpublished) -- Reversal from trial court's order granting summary judgment to defendants. While on a cruise in 1999, plaintiff Mattie King bought supposed Salvador Dali originals for $165,000 at defendant Park West Galleries' auction. King received certificates of authenticity signed by Defendant CEO. She held on to the paintings for ten years before deciding to sell in 2009. King soon learned that defendant had been accused of forging artwork. An independent appraiser confirmed that her paintings were forgeries. On appeal, the court reversed lower court's findings and ruled that King was entitled to a tolling of the limitations period for the fraudulent concealment and breach of warranty claims. A party in Michigan that has a viable claim of fraud owes no duty of diligence to discover the claim. Defendants fraudulently concealed the existence of a claim by certifying the authenticity of the paintings and inducing King to rely on their artistic expertise. In an action alleging breach of warranty, the claim accrues once the breach of warranty is or reasonably should be discovered. As an art merchant, defendant created an express warranty of authenticity when providing King, a non-merchant buyer, with a certificate of authenticity. In providing inauthentic art, defendants breached that warranty.

Gordon v. Invisible Children, Inc. et al, 1:14-cv-04122, (SDNY, 6 June 2014) - The artist Janine Gordon sued a non-profit group for copyright infringement. Defendant allegedly copied Gordon's photograph and used it in a video campaign on the fugitive Ugandan war criminal Joseph Kony. Gordon asserted that the image used copies the "composition, total concept, feel, tone, mood, props, settings, decors, wardrobe, and lighting" from her 2001 photograph "Plant Your Feet on the Ground."

Phillips v. Macy's, Inc., 1:2015-cv-10059 (1st Cir. MA, Jan. 9, 2015) -- Award winning sculptor, David Phillips, originally from Flint, MI, brought a copyright infringement claim against Macy's for reproducing one of his iconic Frog's that decorate the Frog Pond in Boston on the Commons.

Aquino et al v. Zephyr Real Estate LLC, 5:15-cv-00060-NC (N.D. Cal., 6 Jan. 2015) - Amidst mounting tensions over soaring prices and gentrification in San Francisco, eight mural artists filed a complaint against the city's largest independent real estate firm alleging copyright infringement by reproducing their work in a 2013 promotional calendar which advertised "luxury homes."

Cindy Garcia v. Google, Inc., et al., (9th Cir., Nov. 13, 2014) - J. Thomas presiding, a panel of non-recused judges voted in favor of rehearing the 9th Circuit case that previously held that actress and plaintiff Cindy Lee Garcia had a "copyright interest" in her performance in the film "Innocence of Muslims" which gives her the right to have the video taken offline.

Polvent v. Global Fine Arts, Inc., 14-21569-CIV-MORENO (S.D. Fla., 18 Sept. 2014) - J. Federico A. Moreno granted a motion to compel arbitration filed by Defendant, American art dealer Global Fine Arts, Inc. in its copyright dispute with Plaintiff, French artist Jacqueline Polvent. The court ruled in favor of arbitration even though the licensing agreement between the parties, which stipulated for a compulsory arbitration in case of a legal dispute, had expired in 2013, an auto-renew provision provided for a successive and consecutive five-year period unless terminated in writing one-year prior to expiration.

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.

March 3, 2015

Center for Art Law's Art Law Mixer

The first art law mixer of the year will take place at the distinguished Loretta Howard Gallery, which specializes in Post-War American Abstraction. Attendees will be able to view the exhibition of Richard Anuszkiewicz entitled "Temple Paintings," and meet the curators.

Our guest speaker this evening is Roger Shepherd, Creative Director at panOpticon. Shepherd has worked with a number of museums, galleries, foundations and estates to create digital catalogues raisonnés, including the critically acclaimed The Paintings of Paul Cezanne online. Shepherd will describe how the digital design process has taken research from mere recording to a kind of forensic activity. According to Shepherd, "Digital cataloging has literally changed the equation to the extent that the combination of structured data-visualization and dynamic user-participation has had a profound effect on public discussion and debate. In a word, the way we have designed our management system has democratized the catalogue raisonné."

Unless there is a snow storm, there is no good excuse to miss this mixer.

March 12th @ the Loretta Howard Gallery
6:00 PM - 8:00 PM

Admission: $20

To register: https://www.eventbrite.com/e/art-law-mixer-loretta-howard-gallery-tickets-15750893346

March 10, 2015

Center for Art Law Case Updates

Levin v. Robert Blumenthal Gallery, LLC (Sup. Ct. NY Co., complaint filed 13 Feb. 2015) -- Painter Dean Levin is suing Robert Blumenthal Gallery (the gallery) after the gallery failed to pay Levin all of the money due to him under a contract for a solo exhibition in May 2014. Under the contract, the proceeds of the sales of his 30 paintings worth $215,00 were to be split equally between the parties. Levin alleges that he has not received an accounting of the sales and that he has only been paid $18,500 by the gallery. Levin is seeking damages in the amount of $191,500 plus punitive damages in an amount to be determined.

Kurtz Inv., Ltd. v. Village of Hinsdale, 1:2015-cv-01245 (N.D. Ill., 9 Feb. 2015) -- An Illinois investment firm has brought suit in federal court against its local government for classifying artwork on its property (a sculpture carved from a dead tree) as a sign and charging it with violating local zoning codes prohibiting "identification signs." The village manager denied an appeal of the charges and ordered the firm to remove the sculpture and pay fines. The complaint seeks damages, a declaration that the ordinances violate the First Amendment and state law, and an injunction against the town's enforcement of ordinances.

The Richard Avedon Found. v. AXA Art Ins. Corp., 151435/2014 (Sup. Ct. NY Co., 4 Feb. 2015) -- On February 4th, 2015, in the ongoing insurance-related dispute involving photographer Richard Avedon's work, Justice Joan Lobis denied plaintiff AXA Insurance Corp.'s pre-answer-motion to dismiss the Foundation's complaint, and ordered AXA to answer the amended petition. The preliminary discovery conference was scheduled for February 17th.

Gaylord v. United States, 2009-5044, (Fed. Cir., 4 Feb. 2015) -- The U.S. Court of Appeals for the Federal Circuit upheld a decision ordering the United States Postal Service to pay Frank Gaylord $540,000 for the unauthorized reproduction of his copyrighted artwork on a postage stamp. The award is a 10% royalty on $5.4 million in revenue generated from the sale of unused stamps to collectors. Gaylord's The Column serves as the national Korean War Veterans Memorial. In 2003, a photograph of the work appeared on a postage stamp without Gaylord's permission. Gaylord had previously won royalties for other uses of the stamp.

United States v. Twenty-Nine Pre-Columbian And Colonial Artifacts From Peru, et al., 13-21697-CIV-LENARD/GOODMAN (S.D. Fla., 3 Feb. 2015) -- Accused Peruvian artifact smuggler, Combe Fritz, defendant in a forfeiture action brought by the United States, lost a pre-trial motion to block custom and border protection officers from testifying at trial. The parties asked the court to schedule the trial for March 16th.

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.

April 21, 2015

EASL Fashion Law Committee Program - Identity Crisis! Legal and PR Aspects of Managing Brand Image in Celebrity Endorsements and Licensing Agreements [Gone Wrong]

Date: Wednesday, April 29, 2015
Time: 5:30 PM - 8:30 PM Eastern Daylight Time

Fashion Institute of Technology's Jay and Patty Baker School of Business and Technology.
Katie Murphy Amphitheatre
7th Ave at W. 21st Street
New York, NY 10001

5:30 p.m. - 6:00 p.m. - Welcoming Reception
6:00 p.m. - 8:05 p.m. - Panel/Q&A
8:05 p.m. - 8:30 p.m. - Networking

This program qualifies for 2.5 MCLE credits in Professional Practice, this program is not transitional so does not qualify for newly admitted attorneys

As you wait in the checkout line at your local supermarket, you are so bored that you grab a gossip mag from the display above the mints. (OK, so it's really because you secretly love the sleaze... but we won't tell.) Flipping through the pages, you are consumed by the latest celebrity news: love, heartbreak and... uh oh... scandal. The top news story recounts a young celebutant's night of partying that ended in her arrest. In the wake of this incident, said starlet has been dropped by the trendy clothing line for which she served as brand ambassador. "How can they do that!?" you think to yourself. "Isn't there a contract they have to honor?" "And what about free speech?"

Recently, such situations have become quite common, resulting in an increased importance placed on contract terms designed to protect a fashion brand's reputation. This need for image control does not stop at celebrity endorsements. A brand's reputation can be at risk if the brand is associated with manufacturers or factories alleged to be in violation of health, safety and labor laws.

NYSBA's Fashion Law Committee, in partnership with the Fashion Institute of Technology's Jay and Patty Baker School of Business and Technology, invites you to attend its annual CLE event for a lively discussion of these issues. Industry attorneys and PR professionals will discuss the ins-and-outs of image protection from a legal and public relations perspective. Hear as they relay best practices in negotiating celebrity endorsement deals, discuss the importance and effectiveness of morality clauses and advise on avoiding reputational damage in the event of a "rogue" brand representative. Panelists will also discuss these issues as they apply to labor and safety standards.

Moderator:
Kathryne E. Badura, Esq., International Trademark Association (INTA)

Speakers:
Marc Beckman, Founder & CEO of Designers Management Agency
Daniel Bellizio, Bellizio & Igel PLLC
Kristin G. Garris, Esq., Associate, Kilpatrick Townsend & Stockton LLP
Guillermo Jimenez, Esq., Professor-International Trade and Fashion Law at the Fashion Institute of Technology of the State University of New York.
Robin Sackin, Chairperson of the Jay and Patty Baker School of Business and Technology's Fashion Merchandise Management Program at the Fashion Institute of Technology of the State University of New York.

Marc Beckman, Founder & CEO of Designers Management Agency

Register Today!
EASL Members: $25.00
NYSBA Members: $50.00
Non-NYSBA Members: $85.00

To register over the phone please call our State Bar Service Center at 1-800-582-2452

For Questions: Beth Gould at bgould@nysba.org

May 11, 2015

Center for Art Law Case Updates

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

Cornell University v. Pei Cobb Freed & Partners Architects LLP (N.Y. Sup. Ct. May 2015) -- Cornell University is suing the architecture firm Pei Cobb Freed & Partners LLP and its contractors for the faulty construction of the addition to the university's Herbert F. Johnson Museum of Art. Cornell's art museum was originally designed by I.M. Pei in 1968, and an addition was started in 2009 to accommodate its growing art collection. Cornell alleges that the architectural design and construction of the new addition were inconsistent with industry standards for temperature and humidity specifications to maintain the integrity of its artwork, and that water leaks in the building's roof were left unfixed by the contractors, among other problems. Cornell, represented by Nelson Roth, is suing for architectural malpractice, breach of contract and negligent construction and supervision, and alleges it has suffered at least $1.1 million in damages.

Peter Beard v. Hoerle-Guggenheim Gallery (N.Y. Sup. Ct. May 2015) -- Judge Charles Ramos will decide the case brought by photographer Peter Beard over three photographs that went missing in 2013 and recently reappeared for sale at the Hoerle-Guggenheim gallery in Chelsea. The three photographs, depicting scenes of African elephants with Beard's signature collage effects, were taken without his permission while at a friend's Park Avenue apartment. Reports indicate that the works were sold by Beard's former assistant, Natalie White. Whether she had permission to sell those works depends on a recent settlement reached between White and her former employer in a separate lawsuit.

Nungesser v. Columbia U., et al., 15-cv-03216 (SDNY, Apr.23, 2015) -- Judge Gregory Woods is assigned the case brought by the Columbia University student against the University, its president, and art professor for discrimination. The student alleges that his professional and educational prospects have been ruined by the publicity brought by the university's art student Emma Sulkowicz's "Mattress Performance." Sulkowicz, who says Nungesser raped her on campus, started the campaign in which she carries a mattress with her on campus in protest of the university's handling of her accusation of Nungesser. The complaint accuses the university for letting Sulkowicz earn course credits for the "display of harassment and defamation" and alleges that Nungesser's rights are being violated and his well-being and future prospects are suffering as a result of the campaign.

Britto Central, Inc. v. Craig & Karl, and Apple (United States District Court of Southern District of Florida, April 6, 2015) -- The Artist Romero Britto's company filed a complaint against Apple and designers Craig Redman and Karl Maier in early April in District Court of Southern Florida for allegedly misusing his imagery as part of a marketing campaign showcasing artworks made using Apple products. The plaintiff sued the defendants for unfair competition, copyright infringement, trade dress infringement, and false designation of origin or sponsorship/endorsement, and demands an injunctive relief and damages.


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.

May 26, 2015

Center for Art Law Art Law Mixer - May 28th

The Center for Art Law is hosting its May Art Law Mixer at Sundaram Tagore Gallery on May 28, 2015.

In light of the gallery's recent exhibition of photographs by Sebastiao Salgado, we decided to focus our discussion on legal cases involving the medium of photography. We will provide refreshments as well as handouts about recent photo/art law cases. If you would like to list any particular case in the Case Sequence, please send us your submissions by May 27th.

Please help us get the word out about this event and its fascinating topic and special guests: Nancy Wolff (Cowan, DeBaets, Abrahams & Sheppard LLP), Judd Grossman (Grossman LLP) and Paul Cossu (Cahill Partners LLP).

For details, visit: https://www.eventbrite.com/e/art-law-mixer-sundaram-tagore-gallery-photography-and-the-law-tickets-16819675101.

June 4, 2015

Center for Art Law Case Updates

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

Overton v. Art Finance Partners LLC, 1:2015cv03927 (S.D.N.Y. May 21, 2015) -- Kiwi art collector Stephanie Overton has filed suit in New York alleging that $10.8 million worth of her paintings were sold by a NYC art dealer without her permission. The paintings were allegedly bought by defendants, eight art companies, who should have known that they were being sold improperly by Timothy Sammons, Inc., a fine art agency which is not a party here. The suit asks for over $1 million in punitive damages for replevin, conversion and aiding and abetting TSI's breach of fiduciary duty.

Ryan v. Editions Ltd. West, Inc., 5:06-CV-08412-PSG (9th Cir. May 19, 2015) -- The Ninth Circuit ruled that pastel artist Victoria Ryan was improperly denied the full amount of attorney's fees stemming from her copyright battle against Editions Limited West, which had violated her 1995 publishing contract. Ryan sought $328,000 in attorney's fees but was awarded roughly a quarter of that amount because she prevailed on only one of her four claims. The district court failed to adequately explain this decision and the Ninth Circuit was therefore unable to sustain it.

Depew v. City of New York, 1:2015cv03821 (S.D.N.Y., May 18, 2015) -- Members of the Illuminator Art Collective have sued New York City alleging false arrest and First Amendment retaliation stemming from an incident last summer. The artists were charged with illegal advertising for using a projector to display text onto the exterior walls of the Met protesting the dedication of David H. Koch Plaza. The charges were dropped but the NYPD did not return the projector for over two months. The plaintiffs argue that this constituted an illegal prior restraint on speech.

John Eskenazi, Ltd. v. Maitreya Inc., 1:2015cv03695 (S.D.N.Y. May 13, 2015) -- British art dealer John Eskenazi has filed suit against NY-based Asian art dealer Nayef Homsi and his corporation, Maitreya Inc. alleging breach of warranty, fraud, civil conspiracy and unjust enrichment and demanding $80,000 in damages arising from Eskenazi's 2013 purchase from Maitreya of a 9th century. Indian statue of the god Bhairava which the Department of Homeland Security alleged was stolen from an Indian temple. The Manhattan DA filed a forfeiture action against Maitreya, alleging that it knew that the Bhairava and other statutes which it sold were stolen.

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.

June 23, 2015

Graffiti Artists Spray 5Pointz Property Owners With Second VARA Suit

By Barry Werbin

Reviving a fight that began 18 months ago, on June 3, 2015, nine "street" artists filed an action in the Eastern District of New York against owners and developers of the so-called 5Pointz property located in Long Island City, alleging that the 2014 whitewashing of their "Aerosol Art Center" prior to developing the property for a luxury high-rise residential development violated their rights under the Visual Artists Rights Act of 1990 or VARA (Section 106A of the Copyright Act).

For well over a decade, some 1,500 graffiti and street artists adorned an old water meter factory with intricate colorful murals and "tags" that became a major tourist destination. Known colloquially as the 5Pointz Aerosol Art Center, the artists had long-time permission from the property owner's principals, Jerry and David Wolkoff, to paint the abandoned building's façade, with only some restrictions on the type of street art so as to keep it in good taste.

When plans to demolish the property and develop the residential project later emerged, and the New York City Landmarks Commission denied protection, a group of the artists filed suit in the fall of 2013 seeking injunctive relief, alleging that the proposed destruction of the art would amount to a VARA violation. VARA provides qualified protections to the author of a work of visual art to prevent the "intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation." VARA further gives such author the right "to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right."

On the eve of a preliminary injunction hearing, however, most of the art was whitewashed over. The District Court ultimately declined to grant a preliminary injunction, ruling on November 12, 2014 that denial of such relief was warranted because of the "transient nature" of the art based upon the artists' knowledge that the building eventually would be demolished, as well as the availability of monetary relief for damages (which precludes the necessary showing of irreparable harm). The case was nevertheless kept alive for ultimate trial. The court also noted that the issue of "recognized stature," which is not a defined term under the VARA statute, is best determined after the case has been prepared for trial.

In the newly filed action, however, the artist plaintiffs seek only monetary and punitive damages based on mutilation of the art, not destruction. The complaint alleges that "the [2014] whitewashing was entirely gratuitous and unnecessary," that defendants "were far from ready to demolish the buildings in question" and that the whitewashing was "disgracefully crude" and done in an "unprofessional manner which was clearly calculated to cause maximum indignity and shame to plaintiffs." Unlike the section of VARA that requires proof of "recognized stature" with respect to the destruction of a covered work, the new claim avoids that burden but must establish instead that the distortion and mutilation of the artwork were prejudicial to each of the artist's "honor or reputation." The plaintiffs allege such harm, as well as "humiliation, mental anguish, embarrassment, stress and anxiety, loss of self-esteem, self confidence, personal dignity, shock, emotional distress, inconvenience, emotion pain [sic] and suffering and any other physical and mental injuries Plaintiffs suffered due to Defendants improper conduct pursuant to VARA and the common law."

A copy of the complaint is here.5pointz-complaint.pdf

July 6, 2015

Center for Art Law Case Updates

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

Castillo v. G&M Realty LP, 2015 WL 3776891 (E.D.N.Y. June 3, 2015) -- Nine graffiti artists have filed suit against Jerry Wolkoff, owner of the landmark 5Pointz site in Queens, for destroying their murals when his company, the named plaintiff, whitewashed the building in late 2013. The plaintiffs allege that their works were protected by the Visual Artists Rights Act (VARA) and seek compensation for their "gratuitous, willful, and wanton" removal without prior notice or regard for the plaintiffs' feelings or financial interests.

Washington v. Kaul, Case No. 15-1-02149-6 (Wash. Super. June 2, 2015) -- Christopher Robert Kaul, a warehouse worker for glass artist Dale Chihuly, has been charged in Tacoma, Washington with stealing $3 million worth of art to support a drug habit. Kaul admitted to the FBI that he began stealing art in late 2012 and would sell the famous glassblower's works or trade them for pills. He told buyers that he was able to get an employee discount. A private investigator has so far recovered nearly half of the stolen works.

United States v. Qiu, 2015 WL 2250716 (E.D.Tex. 2015) -- Ning Qiu, a Texas art appraiser, has been sentenced to 25 months in prison for conspiring to smuggle rhinoceros horns and elephant ivory out of the country. Qiu pleaded guilty to smuggling $1 million worth of the contraband into to China. His prison term will be followed by three years and supervision and the payment of a $150,000 fine to a federal conservation law and art fund.

Jaretzki v. Art Finance Partners LLC, 2015 WL 3430655 (S.D.N.Y. May 28, 2015) -- British noblewoman Lady Corinne Green has filed suit in federal court alleging that Timothy Sammons, a Manhattan gallery, sold her Henry Moore watercolor "Figure Studies" for less than the agreed minimum price of $461,000. The complaint alleges that when Art Finance Partners bought the painting for $360,000, they "knew or should have known that Sammons did not have the ability or right to convey good title to the artwork."

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.

July 10, 2015

The Statute of Limitations Invoked to Dismiss Copyright Claims

By Joel L. Hecker

On June 26, 2015, a decision of interest concerning the application of the statute of limitations and work made for hire doctrine in connection with copyright litigation was issued in the Southern District of New York. The case is Gideon Lewin vs. The Richard Avedon Foundation, docket No. 11-cv-8767 (KMW) (FM). The court dismissed the The Richard Avedon Foundation's (the Foundation) affirmative claims that photographs created by Lewin while he was acting as studio manager for Richard Avedon between 1965 and 1980 were works made for hire, since it waited too long to raise the defense. However, the work made for hire argument, ruled the court, is still available as an affirmative defense to Lewin's suit for declaratory judgment that he owns such copyrights. This article will discuss these aspects of the decision.

Disclaimer: I am counsel to the plaintiff, Gideon Lewin, in this action, which is ongoing.

Basic Facts:

Lewin had a special relationship with Avedon, which permitted him to take photographs on his own time and for his own clients, resulting in Lewin owning the copyright to such photographs (the Foundation claims such images are works made for hire.) In 2006, Lewin met with Norma Stevens, who was the executive director of the Foundation at that time, to discuss his plans to write a book about his years with Avedon. Lewin showed Stevens images that he created and that he owned. Stevens then sent an email to another director of the Foundation, which reported on this meeting. Stevens admitted in the email that Lewin had many pictures of Avedon working, and was preparing a "dignified" book. Stevens further wrote that she made it clear to Lewin that the Foundation couldn't prevent him from using his images.

Summary Judgment Motions:

After discovery was closed, the parties each moved for summary judgment. The court granted that part of Lewin's motion seeking dismissal of the Foundation's affirmative copyright ownership claims to his photographic images. The court found that at some point during this meeting with Stevens, Lewin made "an expressed assertion of sole authorship and ownership sufficient to put a reasonably diligent plaintiff on inquiry as to the existence of a right." The court found that Stevens acknowledged not simply that Lewin possessed these photographs, but that the Foundation was unable to prevent him from publishing them in the book he was seeking to write. Thus, the court held, Stevens's email put the Foundation on notice as early as 2006 that Lewin was claiming copyright ownership over these photographs. This notice created in the Foundation a duty to investigate Lewin's copyright claims, and it was at this point that the statute of limitations accrued. Once a party is aware, or put on notice, as to the existence of such a right, the statute of limitations begins to run. Since the Foundation did not bring its affirmative claims until more than three years after this meeting, the Foundation's affirmative claims as to these images were dismissed.

The Foundation argued that Lewin did not, during his meeting with Stevens, state outright that he owned the copyrights, and therefore the Foundation was not on notice of such a claim. The court dismissed this argument, holding that an overt discussion of copyright was unnecessary, since the email makes clear that Stevens understood that Lewin believed he owned the copyrights to the photographs he had shown to her, and that this, in and of itself, is sufficient to constitute an "expressed assertion of adverse ownership."

Work for Hire as an Affirmative Defense

Although the Foundation's direct claims that it owns the copyright to Lewin's photographic images as works made for hire was dismissed, the court determined that the work made for hire defense is not barred by the statute of limitations when it is used solely as an affirmative defense against a copyright claim. Accordingly, although the Foundation may no longer claim it owns the copyright to these images, the Foundation can still raise it as an affirmative defense against Lewin's declaratory judgment action and argue that Lewin is not the copyright owner of the work he created.

Regardless of whether or not Lewin prevails in his declaratory judgment claim, the Foundation no longer has standing to prevent Lewin from using his photographs.

Current Status of the Case

Since the court denied summary judgment to both sides on issues other than the above relating to other aspects of the relationship between the parties, the case is ongoing. Time will tell what the outcome will be, but I recommend a reading of the court's decision for its analysis of the juxtaposition of work made for hire issues relating to the statute of limitations.Wood.Decision.SJ.6.26.15.pdf


July 16, 2015

Center for Art Law Case Updates

Albrecht v. Achenbach, Landgericht Düsseldorf [LG Düsseldorf] [Regional Court of Düsseldorf], Jan. 20, 2015, Docket No. 6 O 280/14 (partial judgment in accordance with section 301 of the German Code of Civil Procedure) -- One of Germany's most influential art advisors, Helge Achenbach, was found guilty of 18 counts of fraud and sentenced to six years in prison. During the trial he confessed to marking up purchase invoices in order to lessen the risk imposed by the buy-back clause. Achenbach was also ordered to pay the Albrecht family €19.4 million, the sum of the additional charges.

Christie's France SNC v Syndicat national des antiquaires, Case C-41/14: Judgment of the Court (Fourth Chamber) of 26 February 2015 (request for a preliminary ruling from the Cour de cassation - France) (OJ C 102, 7.4.2014), Celex No. 614CA0041-- Syndicat National des Antiquaires (SNA) claimed that Christie's France's practice of having the buyer pay for the amount for the resale royalty constituted unfair competition. The judgment of the Court of Justice of the European Union states that member states can determine who should pay the royalty fees even though under EU law, the royalty is paid by the seller, not the buyer. The court claims that it is beneficial to allow the states this freedom because competition in the art market will be less distorted with few and indirect effects on the internal market.

• Landgericht Wiesbaden [LG Wiesbaden] [Regional Court of Wiesbaden], Docket No. 1 KLs-4423 Js 39160/12. -- In this currently ongoing case, the prosecutors accused the co-owners and manager of the SMZ Gallery, Itzhak H., Moey Ben H., and Adenande Ben H. of commercial and gang-fraud and forgery. The defendants insist that the paintings are authentic and come from archives in the former Soviet Union. Prosecutors claim damages of €11 million for sales of 19 forged Russian paintings.

• Rechtbank Rotterdam, 24 Juni 2015, Kreuk v. Vō (Neth.). -- The court ruled in favor of art collector Bert Kruek and ordered Danh Vō, a Danish-Vietnamese artist, to make and deliver the artwork promised within one year. Late delivery would have a penalty of €10,000 per day and capped at €350,000. Kruek will still pay the originally agreed upon price, even though Vō's works now sell at higher rates. The court further ordered that the artist can produce artwork that reflects his developments since the deal and cannot be forced to repeat past works.

Thwaytes v. Sotheby's, [2015] EWHC (Ch) 36, (appeal taken from Eng.) -- On January 16, 2015, Justice Rose ruled in favor of Sotheby's and held that the auction house had been entitled to rely on the expertise of its specialists when appraising a Caravaggio painting. The painting sold at £42,000 under the auction house's advice, but was later valued at £10 million. Sotheby's experts stand by their lower valuation, claiming that the work is not an authentic Caravaggio.

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.

July 30, 2015

Claim to Comic Book Art Ownership Tossed

By Joel L. Hecker

On July 24th, United States District Judge Laura Taylor Swain dismissed an action brought in the United States District Court of the Southern District of New York concerning ownership of comic book art on the grounds that the action was commenced after the applicable three-year statute of limitations had run. The case is Wallace Wood Properties, LLC v. Tatjana Wood, docket No. 14-CV-8597-LTS: Decision.pdf

Disclosure: I am counsel to the prevailing defendant, Tatjana Wood, in this action.

Legal Standard on a Motion to Dismiss

On the motion to dismiss, the court is required to accept all allegations in the complaint as true and to draw all reasonable inferences in the plaintiff's favor. Accordingly, the defendant's motion to dismiss must assume that the allegations in the complaint were true, although, if the action continued, the defendant certainly would have contested many of the allegations. Accordingly, in reviewing the actual opinion, the reader should not assume the facts are accurate or truthful, except insofar as they relate to the issue pertaining to the expiration of the statute of limitations.

Background Facts

Wallace Wood ("Wally") was a famous comic book writer and illustrator whose work has been featured in well-known comic books published by Marvel Comics ("Marvel") and EC Comics. The defendant was Wally's first wife. Although the couple divorced in the 1960s, they remained friendly until his death by suicide in 1981. In fact, Wally bequeathed all "bank accounts, whether savings, checking, Certificates of Deposit, or otherwise" to her. Unfortunately for the defendant, there were no assets in the estate to fulfill this bequest.

Wally's will left the rest, residue, and remainder of his estate to a close friend, John Robinson, who also was named executor.

The plaintiff ("WWP") is a not-for-profit limited liability company established in 2011 by J. David Spurlock ("Spurlock"), allegedly to promote Wally's legacy and to manage the latter's tangible properties and intellectual property rights. Spurlock is the sole member and manager of WWP and, as such, is the driving force behind the litigation.

Spurlock, who had written a biography of Wally, claims he first saw a copy of the will in 2009. On February 23, 2012, Robinson assigned to WWP his interest in Wally's property, which was left to Robinson under the terms of the will. The complaint alleges that WWP became the owner of all original artwork created by Wally during his lifetime, which was not subject to a written agreement explicitly providing otherwise. [This allegation was accepted as true for purposes of the motion, but otherwise was contested in that there was a very strong argument that Wally's work consisted of works made for hire for Marvel and that Marvel owned the original artwork and copyrights thereto.]

The 2005 Marvel Transfer to the Defendant

The complaint alleges that in 2005, Marvel transferred 150 to 200 pieces of Wally's original comic book artwork ("the Marvel Artwork") to the defendant. The complaint also alleges that this transaction was not authorized by Wally, his estate, or Robinson, and the defendant knew that Marvel was not the actual owner of the artwork. The complaint further alleges that the defendant admits she did not receive the original artwork until 2005, and subsequently concealed the fact that she possessed it from Robinson and, ultimately, WWP.

The complaint sought return of the original artwork, as well as every other piece of art created by Wally that is or was ever in the possession, custody, or control of the defendant, including, but not limited to, the Marvel Artwork. This contention clearly had no merit in its breadth, since WWP knew that Wally had in fact given some of his artwork during his lifetime to the defendant, but, as stated above, the allegations are assumed to be true for the purposes of this motion.

WWP's Ownership Claims Regarding the Original Artwork

In 2006, well before Spurlock established WWP, he had visited the defendant's home and personally saw Wally's comic book artwork in the defendant's possession. The complaint further alleges that in 2013, Spurlock, "now in the WWP management role," realized for the first time that the artwork he had seen in the defendant's home seven years prior, was WWP's rightful property. As a result, on March 20, 2013, Spurlock, on behalf of WWP, made his first demand for the return of the artwork he had seen in 2006 in the defendant's home.

The defendant obviously refused to comply with such demands, and on October 28, 2014, WWP commenced this action for conversion and replevin, seeking money damages and the return of the Marvel Artwork. The defendant threatened to move to dismiss the complaint as being a frivolous action, which resulted in WWP filing a first and then a second amended complaint. The defendant brought her motion to dismiss the second amended complaint, which is the subject of this blog, on the basis that it was barred by the three-year statute of limitations, the doctrine of laches, and that WWP failed to sufficiently allege specific, identifiable property and ownership of the property in question.

Legal Analysis

The court accepted the defendant's contention that the three-year statute of limitations expired in 2009 because the limitations period accrued in either 2005 or 2006, when WWP alleges that the defendant wrongfully took possession of the artwork. WWP had also argued that it was entitled to an equitable tolling of the statute of limitations in light of the defendant's alleged fraudulent concealment of the Marvel artwork. The court rejected this contention as well.

The court first addressed the issue, for statute of limitations purposes, as to whether the current possessor was a good-faith purchaser or bad-faith possessor. An action against a good-faith purchaser of stolen property accrues once the true owner makes a demand and is refused. This is the argument made by WWP and rejected by the court. On the other hand, where the property is held in bad faith or unlawfully, the limitations period begins to run immediately from time of possession, without a demand and refusal period. Furthermore, such a demand and refusal is not required when the current possessor deals with contested property openly as his or her own.

In this case, WWP specifically and affirmatively alleged in the complaint that the defendant actually possessed the Marvel Artwork in bad faith. The court found that, based upon WWP's own allegations, no demand and refusal period was required and that the limitations period accrued at the time of the alleged conversion in 2005, when Marvel delivered the Marvel Artwork to the defendant. In a footnote, the court explained that, even if the limitations period did not accrue until 2010 when the defendant sold two of the original illustrations at a public auction, which acts constituted the exercise of ownership rights, WWP's claims nevertheless would have become time-barred in 2013.

To avoid dismissal, WWP contended that the defendant had fraudulently concealed these transactions and therefore WWP was entitled to the benefit of equitable tolling. However, to prevail on these grounds, WWP needed to establish that the defendant's alleged fraudulent conduct actually concealed the cause of action during the period WWP sought to have tolled. Moreover, WWP needed to also establish that it exercised due diligence in pursuing the discovery of the claim.

The court found that WWP made only general allegations, which were not supported with any facts, and the court correctly determined that these conclusory allegations of fraudulent concealment and diligence were insufficient to raise a factual issue as to the potential availability of equitable tolling. In effect, the court determined that WWP's complaint contained no pleadings to indicate that the defendant or Marvel caused it, or Wally, or Robinson, to refrain from taking any action to protect the alleged rights of Wally's estate. This was so, despite the fact that Wally's work had been published extensively by Marvel and that Robinson made no effort whatsoever in the decades after Wally's death to inquire after any possible ownership interest. Furthermore, there was no allegation of any kind in the complaint that Marvel or the defendant made any affirmative misrepresentation upon which WWP or its predecessors relied upon in determining whether or when to sue. In fact, the reverse was the case, as the complaint alleges that the defendant actually displayed the Marvel artwork to Spurlock in 2006, and had been selling some of it at auction.

In light of the court's determination that the action must be dismissed as untimely, the court did not reach any of the work made for hire or other underlying issues involved in the case.

Conclusion

The complaint, on its face, actually alleged sufficient facts to affirmatively prove that the three-year statute of limitations had run, and that the complaint therefore required dismissal. As a result, the court correctly dismissed the second amended complaint as time-barred.

September 18, 2015

Center for Art Law Case Updates and Legal/Art News



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

Simcor LLC v. Mahama, 2:15-cv-4539 (C.D. Cal. June 15, 2015) --After discovering unknown Ghanian artist Ibrahim Mahama, plaintiffs Stefan Simchowitz and Jonathan Ellis King helped to build the young artist a studio and reputation. Mahama then contracted to create works exclusively for Simchowitz and King to display and sell. According to the plaintiffs, Mahama breached this agreement by selling 20 similar works to an unnamed collector and by disclaiming authorship of the 294 signed, commissioned works, reportedly because he was dissatisfied with the quality of the finished products. The plaintiffs have sued to recover $4.45 million from Mahama, the estimated value of the 267 unsold works in their possession.

Building Industry Association - Bay Area v. Oakland, 3:2015cv03392 (N.D. Cal. July 23, 2015) -- A developers' industry group has filed suit against the City of Oakland, alleging that the City's Percentage for Art ordinance violates the U.S. Constitution. The ordinance was passed in February and requires that 1% of the budgets for non-residential construction projects and 0.5% of the budgets for residential projects be spent on art. Among other arguments, the plaintiffs claim that this amounts to unlawful compulsion of speech in violation of the Free Speech Clause of the First Amendment.

Fontes v. Autocom Networks, Inc., C 15-02044 CRB (N.D. Cal. 2015) -- Dan Fontes' mural of Lake Merritt had been locally famous since it was painted on the side of an Oakland building in 1987. Fontes has filed suit against the building's current and former owners after the current tenant, a Nissan dealership, whitewashed the mural, which had already been damaged by graffiti. Fontes is seeking $400,000, arguing that the Visual Artists Rights Act (VARA) requires the building owner to give 90 days notice of its intent to remove an artist's work from its property.

Honolulu Art Museum v. Greene, Civil No. 15-1-1515-07 ECN (HI Cir. 1st, Aug. 28, 2015) -- The Honolulu Art Museum has filed suit against 80 year old art collector Joel A. Greene for $880,000, alleging that Greene failed to provide adequate provenance for five Southeast Asian works of art that he donated in exchange for quarterly payments of $80,000 for the duration of his life. Suspicions about the works, worth $1.275 million, first arose in 2011 after the Department of Homeland Security seized seven works from the museum that had originated from Asian art smuggler Subhash Kapoor.

Committee to Save Cooper Union v. Bd. of Trustees of the Cooper Union, No. 0155185-2014 (N.Y. Sup. 2015) -- Cooper Union has agreed to settle a 2014 lawsuit filed by a group of faculty and alumni to restore the school's 155 year old tuition-free model. The settlement, pending review by the New York Supreme Court, would create a "Free Education Committee" tasked with developing a plan to return to the no tuition system. The art, design and engineering college will also add alumni-elected members and two students to its Board of Trustees.

Other legal/art news:

PALMYRA NO MORE: Islamic State insurgents captured the ancient city of Palmyra in May, and despite statements that the historic site would not be damaged, proceeded to destroy ancient temples in August. According to the Director-General of UNESCO, the systematic destruction of the cultural heritage monuments "are war crimes and their perpetrators must be accountable for their actions. UNESCO stands by all Syrian people in their efforts to safeguard their heritage, a heritage for all humanity." The barbaric actions were preceded by the beheading of an 82-year old antiquities scholar, Khaled Assad, who supervised preservation of antiques in Palmyra for over 50 years."

HARD FEELINGS IN THE CLOUD: Anish Kapoor is feeling protective, read defensive, as his creations generate reaction from the viewers. In France, his installation "Dirty Corner" at Versailles was vandalized, to which Kapoor reportedly observed that the vandalism "represents a certain intolerance that is appearing in France about art." Following Kapoor's decision to leave the hateful graffiti on his work, Versailles municipal councilor, Fabien Bouglé, filed a complaint against the artist, stating that Kapoor's decision is breeding intolerance. Meanwhile, in China, a newly created public artwork, "Big Oil Bubble," by an unnamed artist, looks suspiciously like Kapoor's "Cloud Gate" in Chicago. Legal action may be forthcoming.

RESTITUTION CLAIM REJECTED: After reviewing a claim for a Renior painting held by the Bristol Museum and Art Gallery, the U.K. Spoliation Advisory Panel has decided that the painting will not be restituted to the heirs of Jakob and Rosa Oppenheimer. The rejection is based on a lack of evidence that supports the claim that the painting was part of a Nazi-forced sale in 1935.

FAMILY'S WARHOLS REPLACED WITH FAKES: A Los Angeles family recently discovered that their prized Warhol prints have been replaced with fakes. The prints were displayed in the family's movie editing studio for decades; the crime was discovered when the silkscreens began to sag in their frames and were taken for reframing.

DUE DILIGENCE? A French judge fined art dealer Yves Bouvier 27 million euros for his involvement in the sale a numerous stolen Picassos. Bouvier asserts that he was not aware the works he sold were stolen, and in fact performed due diligence checks on the works in question.


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.

October 8, 2015

Center for Art Law Case Updates



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

Simcor LLC v. Mahama, 2:15-cv-4539 (C.D. Cal. June 15, 2015) -- After discovering unknown Ghanian artist Ibrahim Mahama, plaintiffs Stefan Simchowitz and Jonathan Ellis King helped to build the young artist a studio and reputation. Mahama then contracted to create works exclusively for the plaintiffs to display and sell. According to Simchowitz and King, Mahama breached this agreement by selling 20 similar works to an unnamed collector and by disclaiming authorship of the 294 signed, commissioned works, reportedly because he was dissatisfied with the quality of the finished products. The plaintiffs have sued to recover $4.45 million from Mahama, the estimated value of the 267 unsold works in their possession.

Building Industry Association - Bay Area v. Oakland, 3:2015cv03392 (N.D. Cal. July 23, 2015) -- A developers' industry group has filed suit against the City of Oakland, alleging that the City's Percentage for Art ordinance violates the U.S. Constitution. The ordinance was passed in February and requires that 1% of the budgets for non-residential construction projects and 0.5% of the budgets for residential projects be spent on art. Among other arguments, the plaintiffs claim that this amounts to unlawful compulsion of speech in violation of the Free Speech Clause of the First Amendment.

Fontes v. Autocom Networks, Inc., C 15-02044 CRB (N.D. Cal. 2015) -- Dan Fontes' mural of Lake Merritt had been locally famous since it was painted on the side of an Oakland building in 1987. Fontes filed suit against the building's current and former owners after the current tenant, a Nissan dealership, whitewashed the mural, which had already been damaged by graffiti. Fontes is seeking $400,000, arguing that VARA requires building owners to give 90 days notice of their intent to remove an artist's work from their property.

Honolulu Art Museum v. Greene, Civil No. 15-1-1515-07 ECN (HI Cir. 1st, Aug. 28, 2015) -- The Honolulu Art Museum has filed suit against 80 year old art collector Joel A. Greene for $880,000, alleging that Greene failed to provide adequate provenance for five Southeast Asian works of art that he donated in exchange for quarterly payments of $80,000 for the duration of his life. Suspicions about the works, worth $1.275 million, first arose in 2011, after the Department of Homeland Security seized seven works from the museum that had originated from Asian art smuggler Subhash Kapoor.

Committee to Save Cooper Union v. Bd. of Trustees of the Cooper Union, No. 0155185-2014 (N.Y. Sup. 2015) -- Cooper Union has agreed to settle a 2014 lawsuit filed by a group of faculty and alumni to restore the school's 155-year-old tuition-free model. The settlement, pending review by the New York Supreme Court, would create a "Free Education Committee" tasked with developing a plan to return to the no-tuition system. The art, design and engineering college will also add alumni-elected members and two students to its board of trustees.

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.

October 29, 2015

Upcoming Center for Art Law Events



1. Art Law Mixer (NYC) -- Nov. 5, 2015 -- Doyle Auction House

Guest speaker to address the NY Arts and Cultural Affairs law governing sales of multiples.
Guest Speaker:
Judith Wallace is a member of the Art Law Group at Carter Ledyard & Milburn LLP. She represents collectors, foundations, artists and scholars in matters of art ownership, authenticity, authorship, consignment and sales, foundation governance and other art-related matters. She writes frequently on art law issues. As the author of the recently published "Safety in Numbers: Dealer Caveats and Purchaser Protections for Prints, Editioned Sculpture and other Art in Multiples"(August 5, 2015), Ms. Wallace will discuss New York Arts and Cultural Affairs Law governing art merchants who sell non-unique works of art -- engravings, posters, photographs, sculptures, and provide certificates of authenticity to these objects.

Registration details: https://www.eventbrite.com/e/fine-art-law-mixer-doyle-tickets-19101899295

2. Art, Law and Crises of Connoisseurship (London) - Dec. 1, 2015 -- The Society of Antiquaries of London, Burlington House, Piccadilly (London, UK)
Registration Details: http://www.eventbrite.co.uk/e/art-law-and-crises-of-connoisseurship-tickets-19150584915

November 23, 2015

Center for Art Law Case Blurbs

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

Yale University v. Konowaloff, (2nd Cir. Oct. 20, 2015) aff'ing 5 F.Supp.3d 237 (2014) -- The Court of Appeals upheld the 2014 ruling to dismiss the claim by a French citizen, Pierre Konowaloff, against Yale University challenging ownership rights in Van Gogh's "The Night Cafe." The artwork in dispute belonged to Konowaloff's great-grandfather, Ivan Morozov, whose art collection was nationalized by the Soviet authorities following the 1917 Bolshevik Revolution. At least two work from the Morozov collection had been sold to American collectors in the 1930s.

Authors Guild v. Google Inc., 13-4829-cv (2nd Cir. Oct. 16 ,2015) aff'ing 770 F. Supp. 2d 666 (S.D.N.Y. 2011) -- Circuit Judges, including Pierre N. Leval, who coined the term "transformative use" in 1990, ruled that the Google book scanning project was permissible under the fair use exception to the 17 U.S.C. Copyright Law. Court held that the Google Book project does not serve as a market substitute to the original works. On the contrary, it augments public knowledge about Plaintiff's books without providing the public with a substantial substitute for matter protected under the law.

Crawford v. Weider Health and Fitness, 2015 WL 6447396 (NY Sup. Oct. 22, 2015) - Gray Crawford, former owner of the defunct Kundus Gallery in San Francisco, has filed suit in New York Supreme Court for the return of a 500+ year old Buddha statue. Crawford alleges that he bought the piece from a London dealer in 1975 for $10,000 and had it stolen from him in 1983. He was unable to find the Buddha until August when it appeared in the highlights of an upcoming Sotheby's auction. Sotheby's agreed to pull the work from the auction but returned it to Weider Health and Fitness, a California-based company who claims ownership of the work and consigned it to Sotheby's for sale.

U.S. v. Brugnara, 2015 WL 5915567 (N.D. Cal. 2015) -- Real estate mogul Luke Brugnara was sentenced to seven years in federal prison following May convictions of wire and mail fraud, escape, contempt and making false statements in court. Brugnara, who represented himself at trial, never paid an art dealer for a bronze Edgar Degas sculpture shipped to him in 2014, claiming both that it was a gift and that it was stolen by the deliverymen. Brugnara's post-trial attorney argued that he was never competent to stand trial because of untreated bipolar disorder, delusions and narcissism. The court denied the request for a competency hearing and reasoned that he would probably not submit to a court ordered treatment plan anyway.

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.

December 2, 2015

Center for Art Law Case Updates

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

Yale University v. Konowaloff, (2nd Cir. Oct. 20, 2015) aff'ing 5 F.Supp.3d 237 (2014) -- The Court of Appeals upheld the 2014 ruling to dismiss the claim by a French citizen, Pierre Konowaloff, against Yale University challenging ownership rights in Van Gogh's "The Night Cafe." The artwork in dispute belonged to Konowaloff's great-grandfather, Ivan Morozov, whose art collection was nationalized by the Soviet authorities following the 1917 Bolshevik Revolution. At least two work from the Morozov collection had been sold to American collectors in the 1930s.

Authors Guild v. Google Inc., 13-4829-cv (2nd Cir. Oct. 16, 2015) aff'ing 770 F. Supp. 2d 666 (S.D.N.Y. 2011) -- Circuit Judges, including Pierre N. Leval, who coined the term "transformative use" in 1990, ruled that the Google book scanning project was permissible under the fair use exception to the 17 U.S.C. Copyright Law. Court held that the Google Book project does not serve as a market substitute to the original works. On the contrary, it augments public knowledge about Plaintiff's books without providing the public with a substantial substitute for matter protected under the law.

Crawford v. Weider Health and Fitness, 2015 WL 6447396 (NY Sup. Oct. 22, 2015) - Gray Crawford, former owner of the defunct Kundus Gallery in San Francisco, has filed suit in New York Supreme Court for the return of a 500+ year old Buddha statue. Crawford alleges that he bought the piece from a London dealer in 1975 for $10,000 and had it stolen from him in 1983. He was unable to find the Buddha until August when it appeared in the highlights of an upcoming Sotheby's auction. Sotheby's agreed to pull the work from the auction but returned it to Weider Health and Fitness, a California-based company who claims ownership of the work and consigned it to Sotheby's for sale.

U.S. v. Brugnara, 2015 WL 5915567 (N.D. Cal. 2015) -- Real estate mogul Luke Brugnara was sentenced to seven years in federal prison following May convictions of wire and mail fraud, escape, contempt and making false statements in court. Brugnara, who represented himself at trial, never paid an art dealer for a bronze Edgar Degas sculpture shipped to him in 2014, claiming both that it was a gift and that it was stolen by the deliverymen. Brugnara's post-trial attorney argued that he was never competent to stand trial because of untreated bipolar disorder, delusions and narcissism. The court denied the request for a competency hearing and reasoned that he would probably not submit to a court ordered treatment plan anyway.


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.

December 7, 2015

Center for Art Law Mixer

Center for Art Law is hosting an art law mixer this Thursday, December 10. We are delighted to announce that our topic this month will be real estate and art, and that we will have two speakers. Joining us will be Kristen Sakoda, Deputy General Counsel of the New City Department of Cultural Affairs, and Alan S. Kleiman, real estate attorney and member of Epstein Becker & Green P.C.

We will be delivering food, drinks and a healthy doze of art law discourse. It would be lovely if you could pass this information on to your members so they can join us in Brooklyn at Minus Space.

Hopefully, they can take a break from studying to join us.

Details about the event and tickets can be found by following the link bellow:

http://www.eventbrite.com/e/art-law-mixer-bruterealestatebklyn-tickets-19536974617

December 23, 2015

Center for Art Law Case Updates

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

Mueller v. Michael Janssen Gallery, No. 1:15-cv-04827 (S.D.N.Y. June 22, 2015)-- Ohio-based collector Scott Mueller filed suit in federal court alleging several causes of action arising from his purchase of Cady Noland's "Log Cabin" from a German gallery. Noland objected to the sale when she learned that Mueller planned to restore the 1990 work. Mueller then exercised his contractual rights under the buy-back option. However, the seller has returned only $600,000 of the $1.4 million purchase price.

Williams v. Roberto Cavalli S.p.A., CV 14-06659-AB JEMX (C.D. Cal. 2015)-- A federal court in California denied defendant Roberto Cavalli's motion to dismiss claims by three San Francisco street artists that the Italian designer appropriated the plaintiffs' artwork for use in its clothing designs. In addition to alleging copying, the artists also claimed that their stylized signatures were replaced by the "Just Cavalli" mark on the final designs, constituting unlawful removal of copyright management information and a false designation of origin.

Tierney v. Moschino S.p.A., No. 2:15-cv-05900 (C.D. Cal. Aug. 5, 2015) -- Brooklyn graffiti writer "Rime" filed suit against Moschino and Jeremy Scott in federal court, alleging that the designers reproduced his 2012 mural "Vandal Eyes" on their high-profile apparel. The plaintiff further alleges that the defendants added his name and falsified his "Rime" signature on the clothing and in advertisements.

The Creative Foundation v Dreamland Leisure Limited [2015] EWHC 2556 (Ch) -- England's High Court of Justice recently held that a tenant was not entitled to remove a Banksy mural from its exterior walls. Although the work was painted without consent, the court held that, in cutting the mural out from the wall and planning to sell it in the United States, the tenant was not merely carrying out its repair obligations under the lease agreement by unlawfully removing a valuable chattel from the premises without the landlord's consent.

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.

January 21, 2016

Center for Art Law Events

1. Special guided tour: "The Missing: Rebuilding the Past"

Center for Art Law is proud to present a special private tour of the art exhibition: "The Missing: Rebuilding the Past" and a lecture on the topic of the destruction of cultural heritage, given by the co-organizer of the exhibit, Dr. Erin Thompson (John Jay College).

The event will take place on January 27th at 6:30pm, at the Anya and Andrew Shiva Gallery at John Jay College of Criminal Justice (gallery entrance is located on 11th Avenue between 58-59th Streets).

Here is a detailed description of the program:

ISIS is engaging in a systematic campaign to destroy the past. It smashes, bombs, and bulldozes irreplaceable cultural heritage to send the message that it will not tolerate any opposing views, no matter how ancient, to its bleak and monolithic vision of the world. The Missing: Rebuilding the Past is the first exhibit to showcase the efforts of artists and scholars to resist the destruction of the past through creative and innovative reactions, protests, and reconstructions. The curator, Professor Thompson, will talk about its works, in a variety of media - photography, drawing, video, 3D printing - which explore the destruction of art at many historical moments, from ancient Greece to World War II to the present. ISIS' destruction of cultural property is meant to show its power through convincing its audience of the West's helpless impotence to protect the artworks Westerners love. But the artists and scholars of The Missing show that this is a false message - that there are many ways, from the creative to the technical, in which they and we can help fight ISIS' message by making the destroyed past live again. Professor Thompson will also offer an accompanying private tour of the exhibit.

More details about the exhibition can be found here:
http://www.themissingexhibit.com/

Cost: $20. A limited number of student tickets available for $10.
Current student ID must be presented at the door for admission.
Please reserve your tickets ASAP:
https://www.eventbrite.com/e/special-guided-tour-of-the-missing-rebuilding-the-past-led-by-dr-erin-thompson-tickets-20708716328

2. You've Been Served: "Gerhard Richter Painting" (2012)

On February 3rd, Center for Art Law will resume the "You've Been Served" series by screening "Gerhard Richter Painting." One of the leading contemporary artists, Gerhard was one of the vocal opponents of the revisions in the German Cultural Heritage Law last year. He was even quoted as threatening to withdraw his art from German museums if the law would impose restrictions on exporting artworks older than 50 years from Germany.

After the film, Nicolas O'Donnell, a partner in the Litigation Department of Sullivan & Worcester LLP , will discuss the controversy and the revisions ultimately adopted in the 2015-2016 German cultural law on patrimony. Mr. O'Donnell is the editor of the Art Law Report, a widely acclaimed art law blog, and in his practice he frequently represents clients with art related needs.

Details about the film screening and how to register are available here:

https://www.eventbrite.com/e/youve-been-served-gerhard-richter-painting-2011-tickets-20764650629

February 1, 2016

Center for Art Law Case Law Updates

Mueller v. Michael Janssen Gallery, No. 1:15-cv-04827 (S.D.N.Y. June 22, 2015) -- Ohio-based collector Scott Mueller filed suit in federal court alleging several causes of action arising from his purchase of Cady Noland's "Log Cabin" from a German gallery. Noland objected to the sale when she learned that Mueller planned to restore the 1990 work. Mueller then exercised his contractual rights under the buy-back option. However, the seller has returned only $600,000 of the $1.4 million purchase price.

Williams v. Roberto Cavalli S.p.A., CV 14-06659-AB JEMX (C.D. Cal. 2015) -- A federal court in California denied defendant Roberto Cavalli's motion to dismiss claims by three San Francisco street artists that the Italian designer appropriated the plaintiffs' artwork for use in its clothing designs. In addition to alleging copying, the artists also claimed that their stylized signatures were replaced by the "Just Cavalli" mark on the final designs, constituting unlawful removal of copyright management information and a false designation of origin.

Tierney v. Moschino S.p.A., No. 2:15-cv-05900 (C.D. Cal. Aug. 5, 2015) -- Brooklyn graffiti writer "Rime" has filed suit against Moschino and Jeremy Scott in federal court, alleging that the designers reproduced his 2012 mural "Vandal Eyes" on their high-profile apparel. The plaintiff further alleges that the defendants added his name and falsified his "Rime" signature on the clothing and in advertisements.

The Creative Foundation v. Dreamland Leisure Limited [2015] EWHC 2556 (Ch) -- England's High Court of Justice recently held that a tenant was not entitled to remove a Banksy mural from its exterior walls. Although the work was painted without consent, the court held that, in cutting the mural out from the wall and planning to sell it in the United States, the tenant was not merely carrying out its repair obligations under the lease agreement, but unlawfully removing a valuable chattel from the premises without the landlord's consent.

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.

February 21, 2016

Center for Art Law Case Updates

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

Robert Rauschenberg Foundation v. Grutman et al., 2D14-3794 (Fla. Dist. Ct. App. Jan. 6, 2016). -- Florida's Second District Court of Appeals upheld the trial court's decision to award $24,600,000 to be split evenly among the three trustees of the Robert Rauschenberg Revocable Trust. The Florida statute addressing trustee fees provides only that the award be "reasonable under the circumstances" without providing any criteria or methodology. § 736.0708(1), Fla. Stat. (2007). Looking at the legislative history, the court determined that the legislature intended to apply the criteria set forth in West Coast Hospital Ass'n v. Florida Nat'l Bank of Jacksonville, 100 So. 2d 807 (Fla. 1958). Thus, the court properly followed West Coast Hospital Ass'n, the methodology proposed by the trustees.

Kosse v. Kiesza, no. 1:16-cv-00160 (E.D.N.Y. Jan. 12, 2016) -- Jamie Mitchel Kosse filed claims for copyright infringement and false endorsement against singer Kiesza (whose real name is Kiesa Rae Ellestad) and Universal Music Group. Kosse's grafitti in Williamsburg was featured without permission as the background in Kiesza's music video for "Hideaway". Previously, Kosse's work was used by NBC, CBS, Paramount Pictures, and Universal Studios, always with a license.

Heiden v. Main Field Projects, No. 650202/2016 (NY Sup. Jan. 15, 2016) - Main Field Projects failed to ship two works of art by Ibrahim Mahama to the residence of Miety Heiden.

Gagosian Gallery, Inc. v. Pelham Europe, Ltd., No. 1:16-cv-00214 (S.D.N.Y. Jan 12, 2016) -- Action to quiet title to a Picasso bust currently on loan to MoMA. Gagosian alleges ownership over the work and has contracted with a third party to sell the work. Pelham is attempting to enforce a prior agreement to purchase the work.

Heriveaux et al v. The Retrospect Group, Inc. et al, No. 1:15-cv-05536 (S.D.N.Y. Jul. 16, 2015) -- Defendants were using copyrighted Basquiat works in stationary. The case was dismissed with prejudice.

Certain Underwriters at Lloyd's London Subscribing to Policy No. B1161A143678 a/s/o Marc Selwyn Fine Art, Inc., v. Elite Systematic Arts, Inc. et al, No. 1:16-cv-734 (E.D.N.Y. Feb. 11, 2016) -- American Airlines and seven art handling companies are being sued by Lloyd's of London, the insurer of a sculpture that was allegedly damaged while it was shipped from Paris to New York for the Armory Show last year. Lloyd's insured the sculpture for Marc Selwyn Fine Art, a gallery in Beverly Hills, and is claiming breach of contract and negligence.

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.

March 16, 2016

Center for Art Law Case Updates

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

Robert Rauschenberg Foundation v. Grutman et al., 2D14-3794 (Fla. Dist. Ct. App. Jan. 6, 2016) -- Florida's Second District Court of Appeals upheld the trial courts decision to award $24,600,000 to be split evenly among the three trustees of the Robert Rauschenberg Revocable Trust. The Florida statute addressing trustee fees provides only that the award be "reasonable under the circumstances" without providing any criteria or methodology. § 736.0708(1), Fla. Stat. (2007). Looking at the legislative history, the court determined that the legislature intended to apply the criteria set forth in West Coast Hospital Ass'n v. Florida Nat'l Bank of Jacksonville, 100 So. 2d 807 (Fla. 1958). Thus, the court properly followed West, the methodology proposed by the trustees.

Kosse v. Kiesza, no. 1:16-cv-00160 (E.D.N.Y. Jan. 12, 2016) -- Jamie Mitchel Kosse filed claims for copyright infringement and false endorsement against singer Kiesza (whose real name is Kiesa Rae Ellestad) and Universal Music Group. Kosse's grafitti in Williamsburg was featured as the background in Kiesza's music video for "Hideaway" without his permission. In the past, his work has been used by NBC, CBS, Paramount Pictures, and Universal Studios with a license.

Heiden v. Main Field Projects, No. 650202/2016 (NY Sup. Jan. 15, 2016) - Main Field Projects failed to ship two works of art by Ibrahim Mahama to the residence of Miety Heiden.

Gagosian Gallery, Inc. v. Pelham Europe, Ltd., No. 1:16-cv-00214 (S.D.N.Y. Jan 12, 2016) -- Action to quiet title to a Picasso bust currently on loan to MoMA. Gagosian alleges ownership over the work and has contracted with a third party to sell the work. Pelham is attempting to enforce a prior agreement to purchase the work.

Heriveaux et al v. The Retrospect Group, Inc. et al, No. 1:15-cv-05536 (S.D.N.Y. Jul. 16, 2015) -- Defendants were using copyrighted Basquiat works in stationary. The case was dismissed with prejudice.

Certain Underwriters at Lloyd's London Subscribing to Policy No. B1161A143678 a/s/o Marc Selwyn Fine Art, Inc., v. Elite Systematic Arts, Inc. et al, No. 1:16-cv-734 (E.D.N.Y. Feb. 11, 2016) -- American Airlines and seven art handling companies are being sued by Lloyd's of London, the insurer of a sculpture that was allegedly damaged while it was shipped from Paris to New York for the Armory Show last year. Lloyd's insured the sculpture for Marc Selwyn Fine Art, a gallery in Beverly Hills, and is claiming breach of contract and negligence. USA v. Roohparvar, No. 3:16-cr-00096-CRB (N.D. Cal. Mar. 8, 2016). -- A Saratoga resident, Shahram "Ron" Roohparvar, has been charged with illegally selling art pieces constructed from elephant ivory (a practice banned since 1976). This is not Roohparvar's first rodeo with the law; in the past he has faced other federal criminal charges for money laundering.

Sotheby's, Inc. v. Mao et al., 652283/2015 (NY Sup. Jun. 25, 2015) --Sotheby's is suing Christophe Mao and the gallery he owns, Chambers Fine Art LLC. Mao has failed to pay over $2.1 million that he borrowed from Sotheby's after signing a Secured Revolving Loan and Sale Agreement.

Max v. Moskowitz et. al., No. 162953/2015 (NY Sup. Dec. 22, 2015) -- Mary Max, wife of artist Peter Max, filed suit against his agent, ALP, Inc. (a company that runs the NJ warehouse where Ms. Max claims she stored her paintings), and two of Peter Max's children for stealing 82 paintings. The paintings were stored in a warehouse and Ms. Max claims they are worth more than $4.2 million. The family has recently been embroiled in a public scandal covered in New York tabloids.

Fisher v. Petr Konchalovsky Foundation et al., No. 1:15-CV-09831 (SDNY Dec. 17, 2015) -- Richard Fisher of Malibu is suing the Petr Konchalovsky Foundation, saying that when he bought the oil painting "Still Life with Grinder" in 1991 from Sotheby's, the organization declared it an authentic work by Konchalovsky, a Russian artist. In 2012, Fisher decided to sell the work and asked Sotheby's in New York to auction it, but the foundation claimed it wasn't authentic. The Moscow-based foundation did not examine the work, dated 1920, and instead relied on photos, Fisher alleges.

Sam Francis Foundation v. Christie's, Inc. (9th Cir. 2014), cert. denied, 136 S.Ct. 795 (Jan. 11, 2016) -- The Supreme Court has declined to hear artists' resale royalty suit against auction houses like Christie's, Sotheby's and eBay. Artists like Chuck Close argue these auction houses are failing to pay royalties, which they claim is in direct violation of the California Resale Royalties Act of 1976. New York Congressman Jerrold Nadler is the lead proponent of the ART Act, which will directly address the royalty issues if passed by Congress.

Mlinar v. United Parcel Service Inc. et al., No. SC14-54 (Fla. 2016) -- The Supreme Court of Florida recently reinstated an art theft lawsuit between artist Ivana Vidovic Mlinar and three defendants - Pak Mail, a South Florida packing store, the United Parcel Service Co. (UPS), and Cargo Largo, UPS's lost goods contractor. The suit alleges that these parties stole Mlinar's work, profited from the theft of her paintings, used her name or likeness without Mlinar's authorization, and, finally, that the defendants violated Florida's Deceptive and Unfair Trade Practices Act.


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.

April 1, 2016

Center For Art Law Case Updates

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

Caraballo v. Art Students League of New York, 2016 N.Y. Slip Op. 00883 (1st Dept. Feb. 9, 2016). -- An appeal by members of the Art Students League (against the Board of the Art Students League) was dismissed. The appeal was filed in objection to the 2014 sale of air rights above the League's West 57th Street headquarters to developer Extell. The plaintiffs no longer sought to halt construction, as plans were now too far along, but rather to invalidate the voting process to clarify how voting on matters such as this would occur in the future.

XI Specialty Ins. Co. v. Christie's Fine Art Storage Servs., Inc., No. 159926/13, 2016 WL 1049690 (N.Y. App. Div. Mar. 17, 2016). -- The 1st Dep't reinstated a case brought by XL Insurance company, which had accused Christie's of gross negligence, breach of contract, fraudulent misrepresentation and other charges arising from Christie's failure to move artworks during Superstorm Sandy. The decision reverses the September 2014 ruling that dismissed XL's complaint based on a waiver in the contract between the gallery and the storage company.

Oliver Sears v. Sotheby's Inc., Case 1:16-cv-02143-VEC (Complaint Mar 23, 2016). -- Oliver Sears is suing Sotheby's for destroying the value of the painting "Brushy Elegy" by Robert Motherwell. According to the complaint, Sotheby's burned the artwork when it put the piece up for auction at a devalued price and subsequently took it down without explanation. The petitioner claims that the work was never consigned to Sotheby's, but was set to be sold through Bernard Jacobson Gallery, which rescinded its offer after seeing the low price set by Sotheby's.

Christie's, Inc. v. Jombihis Corp. et al., No. 651047/2016 (NY Sup. Feb. 29, 2016). -- Jose Mugrabi purchased a Basquiat spray-painting for $37 million at a Christie's auction, but has only paid $5 million so far. He missed a $13.6 million payment on January 4th and the final payment on February 15th.

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.

April 17, 2016

Center For Art Law Case Updates

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

USA v. Roohparvar, No. 3:16-cr-00096-CRB (N.D. Cal. Mar. 8, 2016). -- A Saratoga resident, Shahram "Ron" Roohparvar, has been charged with illegally selling art pieces constructed from elephant ivory (a practice banned since 1976). This is not Roohparvar's first run-in with the law; he has previously faced other federal criminal charges for money laundering.

Sotheby's, Inc. v. Mao et al., 652283/2015 (NY Sup. Jun. 25, 2015). -- Sotheby's is suing Christophe Mao and the gallery he owns, Chambers Fine Art LLC. Mao has failed to pay over $2.1 million that he borrowed from Sotheby's after signing a Secured Revolving Loan and Sale Agreement.

Max v. Moskowitz et. al., No. 162953/2015 (NY Sup. Dec. 22, 2015). -- Mary Max, wife of artist Peter Max, filed suit against his agent, ALP, Inc. (a company that runs the NJ warehouse where Ms. Max claims she stored her paintings), and two of Peter Max's children for stealing 82 paintings. The paintings were stored in a warehouse, and Ms. Max claims they are worth more than $4.2 million. The family has recently been embroiled in a public scandal covered in New York tabloids.

Fisher v. Petr Konchalovsky Foundation et al., No. 1:15-CV-09831 (SDNY Dec. 17, 2015) -- Richard Fisher of Malibu is suing the Petr Konchalovsky Foundation, saying that when he bought the oil painting "Still Life with Grinder" in 1991 from Sotheby's, the organization declared it an authentic work by Konchalovsky, a Russian artist. In 2012, Fisher decided to sell the work and asked Sotheby's in New York to auction it, but the Foundation claimed that it wasn't authentic. Fisher alleges that the Moscow-based Foundation did not examine the work, dated 1920, and instead relied on photos.

Sam Francis Foundation v. Christie's, Inc. (9th Cir. 2014), cert. denied, 136 S.Ct. 795 (Jan. 11, 2016) -- The Supreme Court declined to hear an artists' resale royalty suit against auction houses like Christie's, Sotheby's and eBay. Artists like Chuck Close argue that these auction houses are failing to pay royalties, which the artists claim is in direct violation of the California Resale Royalties Act of 1976. New York Congressman Jerrold Nadler is the lead proponent of the ART Act, which will directly address the royalty issues if passed by Congress.

Mlinar v. United Parcel Service Inc. et al., No. SC14-54 (Fla. 2016) -- The Supreme Court of Florida recently reinstated an art theft lawsuit between artist Ivana Vidovic Mlinar and three defendants - Pak Mail, a South Florida packing store, the United Parcel Service Co. (UPS), and Cargo Largo, UPS's lost goods contractor. The suit alleges that these parties stole Mlinar's work, profited from the theft of her paintings, used her name or likeness without Mlinar's authorization, and, finally, that the defendants violated Florida's Deceptive and Unfair Trade Practices Act.

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.

April 22, 2016

Center For Art Law Case Updates

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

Toren v. Villa Grisebach Auctions, Inc., 651667/2016 (N.Y. Sup. Ct. March 29, 2016) -- The 89-year old New Yorker, David Toren, claims that the German art dealer Villa Grisebach Auctions sold two works that were looted from his grandfather, David Friedman. In his efforts, Toren seeks to uncover names of people to whom the Max Lieberman painting, "Basket Weavers" and the Franz Skarbiner painting, "Nach House" were sold in 2000 and 1995, respectively.

Miller v. The Robert Mapplethorpe Foundation, Inc., No.1:16-CV-2510 (S.D.N.Y. April 5, 2016) -- Photographer Bobby Miller filed a $65 million suit for copyright infringement against the Foundation and multiple galleries and museums that have previously shown the works at issue. Miller claims that while spending time with Mapplethorpe in the late 1970s, he snapped a number of photos of the artist dressed in drag that have since been reproduced and publicly displayed.

Maestrali v. Helly Nahmad Gallery Inc., 650646/2014, New York State Supreme Court (Manhattan)-- Plaintiff Philippe Maestracci filed suit against Helly Nahmad Gallery, seeking declaration of title, conversion, and replevin or restitution of a painting, "Seated Man with a Cane, 1918" by Amedeo Modigliani, a renowned Italian Jewish artist. The defendants currently possess, control, and own the painting. The painting has been referenced widely in connection with the recently-publicized Panama Paper.

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.

June 7, 2016

Center for Art Law Case Law Updates

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

Bennett Goldberg, et. al v. Stephens Institute, 16-cv-02613-JSC (U.S. District Court for Northern District of C.A. May 13, 2016) -- Parents of decedent college student seek class action lawsuit against Stephens Institute (also known as the Academy of Art University) for violating rental ordinances by failing to maintain student housing and deprive students of their right to exercise tenant rights. Specifically, they allege violations of the California False Advertising Law and the California Unfair Competition Law.

General Services Administration v. Matthew Schwartz, (U.S. District Court, N.J. May 23, 2016) -- The federal government is suing New Jersey art dealer Matthew Schwartz to reclaim possession of the painting "1934 Farmer." Schwartz claims he obtained the severely damaged painting from the Chrysler Museum, who disposed of it in 1990, and has since spent thousands of dollars restoring it. The federal government's General Services Administration (GSA) has reportedly been pursuing the painting, which was previously believed to be lost or stolen. Because the painting was made during Franklin D. Roosevelt's Works Progress Administration, the federal government allegedly holds full legal title to the artwork. In their complaint, GSA cites conversion, trespass to chattels and unjust enrichment and seeks a declaratory judgment and injunctive relief.

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.

August 17, 2016

Center for Art Law Case Updates

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

Highsmith v. Getty Images, Case No. 16 CV-05924-JSR (S.D. N.Y., Jul. 25, 2016) -- The plaintiff, a photographer, filed a $1 billion suit against alleged infringers for the improper use of her images, which she donated to the Library of Congress' open source library. Highsmith discovered the alleged improper use after the defendant sent her a request for payment, for featuring her images on her professional website. The case is pending, and the complaint is available at https://consumermediallc.files.wordpress.com/2016/08/highsmith-v-getty-images.pdf?mc_cid=d28c91d9ee&mc_eid=8a2eda70d8.

U.S. v. "The Wolf of Wall Street" Motion Picture, Including Any Rights to Profits, Royalties and Distribution Proceeds Owed to Red Granite Pictures, Inc. or its Affiliates and/or Assigns, Case No. 16-16-5362, (U.S. District Court, C.D. Cal, Jul. 20, 2016) -- According to the Justice Department, it has filed 16 complaints which would allows the "the government to forfeit the ill-gotten gains of foreign officials and in some cases allows the government to channel recovered funds back to people touched by the corruption." The governments of Singapore, Switzerland and Malaysia are also investigating the fund. (http://www.courthousenews.com/CNSNEWS/Story/Index/92549?mc_cid=d28c91d9ee&mc_eid=8a2eda70d8) According to U.S. Attorney General Loretta Lynch, these assets were used to buy Van Gogh and Monet paintings as well as a stake in "The Wolf of Wall Street" (2013). This specific forfeiture action was started in Los Angeles Federal Court and may become one of the largest civil forfeiture actions ever brought under the 18 U.S. Code § 981. (http://www.wsj.com/public/resources/documents/1MDB-Filing-07-20-2016.pdf?mc_cid=d28c91d9ee&mc_eid=8a2eda70d8)

Medina v. Dash Films, Inc., Case No. 15-CV-2551-KBF (S.D. N.Y. Jul. 14, 2016) -- In 2015, Kanye West and Damon Dash released a music video titled "Loisaidas." Subsequently, they were sued by Michael Medina, who has a Latin band also called "Loisaidas" for infringement of a registered trademark. The District Judge Katherina Forrest dismissed the complaint after applying the "Rogers test." Forrest ruled that the title of the music video had artistic relevance, and wrote that: "[t] he complaint is devoid of concrete allegations that defendants attempted to suggest that plaintiff's duo produced the work; to the contrary, as evidenced by Exhibit D to the operative complaint, materials promoting the film prominently informed the reader that it was 'Executive Produced: Dame Dash & Kanye West'." (https://casetext.com/case/medina-v-dash-films-inc?mc_cid=d28c91d9ee&mc_eid=8a2eda70d8)

Boone Associates, L.P., v Vanessa Buia LLC, Case No. 653902/2016 N.Y. Sup. Ct., Jul. 26, 2016; Vanessa Buia, LLC v. Boone Associates, L.P., Case No. 150921-2016 (N.Y. Sup. Ct., Jul. 26, 2016) -- Mary Boone Gallery, which represents graffiti artist KAWS, filed a complaint against art advisory Vanessa Buia and her business alleging that the defendants fraudulently induced the plaintiff to sell KAWS's work. According to the complaint, the defendants provided false information as to the identify of the buyers in order to purchase artworks for themselves and to receive a $60,000 discount. The petitioners allege fraudulent inducement and seek $60,000 plus interest, costs and fees. Vanessa Buia countersued on the same date, alleging Boone's "malice, hatred and jealousy" and seeking monetary relief, damages and fees.

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.

August 21, 2016

Friedman v. Live Nation

By Fabien Thayamballi

On August 18th, the Ninth Circuit issued an opinion in which it reversed a summary judgment ruling that dismissed a claim of willful copyright infringement (opinion attached). It explained: "On the current record, a jury could reasonably conclude that Live Nation's approval procedures amounted to recklessness or willful blindness with respect to Friedman's intellectual property rights. Live Nation's Product Approval Forms say nothing whatsoever about establishing or reporting on who holds the rights to the images whose use is proposed. The forms only include fields indicating the manufacturer of the proposed product, the artist represented, and the suggested price, along with space for unspecified "comments" by Live Nation and the artist. From the face of the documents, one could conclude that they are directed at design decisions, not the rights to the photographs. Nor do the specific forms signed by Run-DMC indicate in any way that the group was clearing the legal right to use the photographs, on their own behalf or anyone else's."

Given an approval process that never explicitly asks about copyrights at all, a jury could reasonably conclude that Live Nation's reliance on the artists who were the subjects of the photographs at issue to clear photographic rights, rather than on the photographers who took them -- based only on a purported industry practice never reflected in any document -- amounted to recklessness or willful disregard, and thus willfulness.

The Court also found that there was an issue of fact as to whether Live Nation "knew of the removal of the CMI", even though it did not remove the CMI itself, because "a reasonable jury could certainly conclude that Live Nation had knowledge that photographs are often copyrighted." The Court also held that the plaintiff was entitled to only one award of statutory damages despite numerous "downstream" infringements.

September 30, 2016

The Center for Art Law Updates

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

9-Year Sentence for Smashing Timbuktu Shrines: According to the case information sheet for the International Criminal Court (ICC) trial of Ahmad Al Faqi Al Mahdi, the first individual to be accused of a war crime in relation to destruction of cultural heritage, the accused first appeared before the court on September 30, 2015. A year later he was found guilty of the crimes perpetuated in 2012 and imprisoned for ordering attacks against historic monuments and buildings dedicated to religion in Timbuktu, Mali. Who's next?

Israel's Ministry of Culture Sued by Artists and Museums: Under threat from policies that limit freedom of expression, a group of Israeli artists, museum directors and art educators filed a lawsuit in July against the country's Ministry of Culture. As reported by The Art Newspaper, in the lawsuit they demand disclosure of criteria for decision-making from the culture ministry and the Israeli Council for Culture and Art.

It ain't Doig! In an authentication case that should have been dismissed on a summary judgement motion, Judge Gary Feinerman finally ruled that the living art-defendant in Fletcher v. Doig did not create a landscape painting attributed to him by plaintiff. According to Feinerman any similarities between the desert scene on the claim and Mr. Doig's paintings were "purely coincidental."

Ulay v. Marina Dutch court ruled that Abramović had to pay royalties to her former partner in art and life, Frank Uwe Laysiepen, from profits made on sale of works made jointly. As is true under the US Copyright law, coauthors cannot stop each other from exploiting the works they create but may be held accountable for their share of the proceeds from the sale of the property.

HEAR Act: HEAR stands for Holocaust Expropriated Art Recovery Act of 2016. This Bill would provide the victims of Holocaust-era persecution and their heirs a fair opportunity to recover works of art confiscated or misappropriated by the Nazis is making its way through the Congress. On September 29th it was placed on Senate Legislative Calendar under General Orders. Calendar No. 654.

ISA 2nd Act: Foreign Cultural Exchange Jurisdictional Immunity Clarification Act that passed Committee on the Judiciary on September 15th has been characterized as placating the Russians who are refusing to loan art works to the United States for fear of having cultural diplomacy turn ugly and give rise to seizures. The bill is proposed to amend Immunity from seizure sections of the United States Code and as such it is widely lauded by museum administrators but not attorneys who represent individual claimants trying to recover their looted property.

On the Radar: Von Saher v. Norton Simon notifies of appeal to the 9th Cir (Sept. 9, 2016).

Rouse v. Elliot Stevens, Ltd., 13-CV-01443 (S.D.N.Y. 2016) - British tourist Christopher Rouse is suing an art gallery and antiques shop which sold him allegedly fraudulent art deco sculptures by the artist Demétre Chiparus. The gallery, located in the lobby of the Waldorf Astoria, told Rouse that the sculptures were made from molds that were in the artist's possession when he died in the hotel. Rouse later learned that Chipraus actually died in Paris. His suit alleges that the sculptures are Chinese forgeries copied from photographs.

U.S. v. Maritime Exchange Museum, 2:2016cv13198 (E.D. Mich. 2016) - The federal government has filed suit against a Michigan museum, seeking a judgment declaring them owners of two 19th century lighthouse lenses in the museum's possession and ordering their return to the government. The complaint describes the lenses as "irreplaceable historic artifact[s] of great beauty" and estimates their value at $600,000 in total.

Green v. Nat'l Gallery of Art, London, 1:16-cv-06978 (S.D.N.Y. Sep. 7, 2016) - The purported heirs to a Matisse painting, "Portrait of Greta Moll"(1908), are suing the National Gallery of Art, London, for its possession and $30 million in damages. Greta Moll's relatives allege the painting was lost during the Allies' occupation of Germany and, therefore, its acquisition violates international law. The defendants argue that (1) they performed their due diligence in purchasing the painting in 1979, and (2) because the Allied occupation of Germany came after the fall of the Third Reich and end of World War II, the painting is not protected by the international laws on which the plaintiffs rely.

Baldwin v. Boone, 654807/2016 (Sup. Ct. N.Y. Cty. Sep. 12, 2016) -- Actor Alec Baldwin has filed suit in New York against Mary Boone and her eponymous gallery, alleging the defendant intentionally deceived him by delivering to him a copy of Ross Bleckner's painting Sea and Mirror (1996) after he paid her $190,000 to obtain the original for him. Baldwin is seeking treble damages from the plaintiff.

Blue Art Ltd. v. Zwirner, 653810/2016 (Sup. Ct. N.Y. Cty. 2016) Dealer Fabrizio Moretti has filed suit in Manhattan against dealer David Zwirner seeking $6 million in damages, alleging that Zwirner offered to sell him a Jeff Koons sculpture which was still in production at the time of the transaction. However, according to the complaint the exact identity of the work was not agreed upon and it is worth much less than Moretti paid.

Magnum Photos Int'l v. Houk Gallery, 16 CV 7030 (S.D.N.Y. Sep. 8, 2016) Magnum Photos International has filed a complaint in federal court in Manhattan alleging that Houk Gallery violated its copyrights in several photographs taken by the late Henri Cartier-Bresson. Magnum, as exclusive licensee of the copyrights in the photographs at issue, alleges that Houk, without authorization, used the photos on its website to promote exhibitions in 2009 and 2013.


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.

November 1, 2016

Center For Art Law Case Law Updates

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

Zuckerman v. Metropolitan Museum of Art, 16-cv-7665 (S.D.N.Y. Sep 30, 2016) -- The estate of Paul and Alice Leffman, who fled from Europe in 1938, sued the Metropolitan Museum of Art (Met) to recover Picasso's "The Actor." The estate alleges that the owner was forced to sell the painting at a low price in order to flee the country and that the Met, to whom the work was donated in 1952, should have known that the 1938 sale was made under duress.

Berreau v. McDonald's, 16-cv-07394 (C.D. Cal. Oct. 3, 2016) -- The estate of late graffiti writer SACE is suing McDonald's over its alleged use of his tag in its decor in graffiti-themed restaurants across the country. The suit alleges that the use of the tag clashes with SACE's anti-consumerism and anti-corporate image, thereby diminishing the value of his artwork, which has fetched high prices at auctions.

Mayor Gallery v. Agnes Martin Catalogue Raisonne LLC, 655489/2016 (Sup. Ct. N.Y. Cty. Oct. 17, 2016) -- A British gallery filed suit against the Agnes Martin Catalogue Raisonné LLC for its failure to authenticate paintings that it sold to collectors for millions of dollars. The gallery alleges that the defendant failed to exhibit an adequate level of care in reaching its conclusions and was responsible for the gallery having to refund the purchases prices of the paintings.

Craig v. Princeton Enter., 2:16-cv-10027 (E.D. Mich. 2016) -- A Detroit artist filed suit against a property owner and manager under the Visual Artist Rights Act, seeking to enjoin them from damaging or destructing a mural that she painted on a building in 2009. Allegedly, the defendants plan to redevelop the property and have offered Katherine Craig only token compensation for any affect on her artwork.

Edelman Arts v. Geoffrey Diner Gallery, 1:2016cv02157 (S.D.N.Y. 2016) -- Art collector Asher Edelman sued the Diner Gallery following severe damage done to a $600,000 Pier Paolo Calzolari work during its shipping. Both parties had their own insurance policies covering the work, which Edelman had consigned to Diner. However, Edelman contends that the work must be repaired by Calzolari himself because, otherwise, the Visual Artist Rights Act would allow Calzolari to disavow the work, greatly devaluing it.

De Fontbrune v. Wofsy, D.C. No. 3:13-cv-05957-SC (9th Cir. Sept. 26, 20160) -- The Ninth Circuit ruled that a $2.2 million copyright infringement judgment issued by a French court is enforceable in California. In 2001, Yves Sicre de Fontbrune, who owned the rights to nearly 16,000 photos of Picasso works taken between 1932 and 1970, won a judgment in a Parisian appeals court against American art editor Alan Wofsy who reproduced the photos in books which were sold in Paris. The court held that, although the French word used for the judgment translates directly to "penalty," it is not an unenforceable penalty because it is the nature of the judgement, and not the dictionary definition, which prevails.

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.

December 2, 2016

Center for Art Law Case Law Updates

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

Zuckerman v. Metropolitan Museum of Art, 16-cv-7665 (S.D.N.Y. Sep 30, 2016) -- The estate of Paul and Alice Leffman, a couple who fled from Europe in 1938, sued the Metropolitan Museum of Art (the Met) to recover Picasso's "The Actor." The estate alleges that the owner was forced to sell the painting at a low price in order to flee the country and that the Met, to whom the work was donated in 1952, should have known that the 1938 sale was made under duress.

Berreau v. McDonald's, 16-cv-07394 (C.D. Cal. Oct. 3, 2016) -- The estate of late graffiti writer SACE is suing McDonald's over its alleged use of his tag in its decor in graffiti-themed restaurants across the country. The suit alleges that the use of the tag clashes with SACE's anti-consumerism and anti-corporate image, thereby diminishing the value of his artwork which has fetched high prices at auctions.

Mayor Gallery v. Agnes Martin Catalogue Raisonne LLC, 655489/2016 (Sup. Ct. N.Y. Cty. Oct. 17, 2016) -- A British gallery filed suit against the Agnes Martin Catalogue Raisonné LLC for its failure to authenticate paintings which it sold to collectors for millions of dollars. The gallery alleges that the defendant failed to exhibit an adequate level of care in reaching its conclusions and was responsible for the gallery having to refund the purchases prices of the paintings.

Craig v. Princeton Enter., 2:16-cv-10027 (E.D. Mich. 2016) -- A Detroit artist filed suit against a property owner and manager under the Visual Artist Rights Act, seeking to enjoin them from damaging or destructing a mural which she painted on a building in 2009. Allegedly, the defendants plan to redevelop the property and have offered Katherine Craig only token compensation for any affect on her artwork.

Edelman Arts v. Geoffrey Diner Gallery, 1:2016cv02157 (S.D.N.Y. 2016) -- Art collector Asher Edelman sued the Diner Gallery following severe damage done to a $600,000 Pier Paolo Calzolari work during its shipping. Both parties had their own insurance policies covering the work, which Edelman had consigned to Diner. However, Edelman contends that the work must be repaired by Calzolari himself because, otherwise, the Visual Artist Rights Act would allow Calzolari to disavow the work, greatly devaluing it.

De Fontbrune v. Wofsy, D.C. No. 3:13-cv-05957-SC (9th Cir. Sept. 26, 20160) -- The Ninth Circuit ruled that a $2.2 million copyright infringement judgment issued by a French court is enforceable in California. In 2001, Yves Sicre de Fontbrune, who owned the rights to nearly 16,000 photos of Picasso works taken between 1932 and 1970, won a judgment in a Parisian appeals court against American art editor Alan Wofsy, who reproduced the photos in books that he sold in Paris. The court held that, although the French word used for the judgment translates directly to "penalty," it is not an unenforceable penalty because it is the nature of the judgement, and not the dictionary definition, which prevails.

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.

December 24, 2016

Center for Art Law Case Law Updates

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

Mueller v. Michael Janssen Gallery, et al, 1:15-cv-04827-NRB (S.D.N.Y., 12/02/2016) On Dec. 1, 2016, District Judge Buchwald dismissed the 2014 lawsuit related to Cady Noland's artwork "Log Cabin," which the artist disavowed due to replacement of rooted wood logs. The plaintiff, the purchaser of the artwork, alleged unjust enrichment and breach of fiduciary duties against the gallery and art advisors who facilitated the sale. The dismissal provides some clues as to the business relationships between collectors and art experts. The Memorandum and Order in the case are available at https://drive.google.com/file/d/0B9yHAtGD-3ZGNjVhbllIY1RSTWkyZl94V3M3dWpRbVRpTEI0/view?mc_cid=a65515225f&mc_eid=8a2eda70d8.

McNatt v. Prince, 1:2016cv08896 (S.D.N.Y. Nov. 16, 2016) Photographer Eric McNatt sued Richard Prince, alleging copyright infringement over his use of McNatt's photo of musician Kim Gordon. Prince posted the photo on his own Instagram account and then displayed a 20 square foot screenshot of the Instagram post at a Tokyo gallery in 2015.

Statkun v. Klemens Gasser & Tanja Grunert, Inc., 1:13-cv-05570, (S.D.N.Y. Dec. 8, 2016) Tanja Grunert, former owner of the gallery Klemens Gasser & Tanja Grunert, Inc., was ordered to pay $500 for every day she ignores inquiries from contemporary artist Joseph Statkun stemming from a default judgment awarded to Statkun in 2014. Statkun alleged that Grunert violated VARA by cropping one of his paintings without authorization.

Heritage Capital v. Christie's, 3:16-cv-03404-N (N.D. Tex. Dec. 9, 2016) The plaintiff accused Christie's in federal court of copyright infringement, alleging that research, images and price information for 3 million different auction listings generated by the Dallas-based auction house were appropriated by the London-based auction house and resold as part of its own subscription database.

Banach v. Dedalus Found., 600918/2009 (Sup. Ct. N.Y. Cty. Dec. 8, 2016) J. Geoffrey D. Wright ruled for the defendant in the 2009 lawsuit brought by Joan Banach against the Daedalus Foundation, alleging gender discrimination in its discharge of her employment. The non-profit, which claimed to have fired Banach out of suspicion that she misappropriated art, counter sued to recover that art. The Supreme Court of New York County recently dismissed Banach's gender discrimination claim and denied her motion for summary judgment on Dedalus' counterclaims.

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.

January 23, 2017

EASL Speakers Bureau/New York Foundation of the Arts Program: Your Art Will Outlive You - How to Protect it Now!

The New York Foundation for the Arts (NYFA) and New York State Bar Association Entertainment, Arts, and Sports Law Section's Fine Arts and Pro Bono Committees recently joined forces to present a panel about how to preserve and extend a creative legacy after the creator's death. The event was co-moderated by art law professionals Judith Prowda and Carol Steinberg with esteemed legal panelists Elisabeth Conroy, Declan P. Redfern, and Peter Arcese with Alicia Ehni of NYFA Learning.

Estate Planning 101: Advice Provided to Creators

Start planning now. Think about creating a will so that your loved ones are guided by you in making the decisions about your creative work. Wills can be amended and revoked at any time.
Protect your loved ones by making specific bequests in their names, or by setting up a testamentary trust that distributes all or any portion of your estate upon your death.
Think further ahead. You can set up a foundation to maintain an archive of your life and art; support other artists, initiatives, or institutions; and provide and foster scholarship about your work. Notable examples include the Adolph & Esther Gottlieb Foundation, Roy Lichtenstein Foundation, and Robert Rauschenberg Foundation.

Key Takeaways

Trust the people that are going to be handling your estate, and select people who understand you and the content and rights of your work.
Keep good records of your creative output throughout your career: Part of what you can do today is to start creating a history of your work. This is of special importance when concerning authentication and helps to preserve the personality of the artist moving forward.
Make clear, precise instructions for those who will be carrying out your estate plans to discourage potential disputes.
Ownership of copyright in your artwork (reproduction rights, etc.) is separate from ownership and or possession of the artwork itself, so it is important to think about who will manage the copyright in the work as well as the work itself.

Helpful Legal Terms

Testator - one who makes a will
Will - a legal document in which you, the testator, declare who will manage your estate after you die
Fiduciary - a personal representative who manages and protects your property or money
Executor - the person, persons, or institution named in the will to manager your estate; be sure to designate someone with legal or financial acumen
Witness - the person who observes the execution of a legal document and authenticates it with his or her signature; the person cannot be the executor or attorney and must be someone who is not receiving anything from your will
Valuation - the process of determining the value or worth of an asset, also used as a synonym for appraisal
Bequest - gift of personal property or possessions by will
Trust - a relationship whereby property is held by one party for the benefit of another
Foundation - a permanent fund established and maintained by contributions for charitable, educational, religious, research, or other benevolent purposes
Copyright - a form of intellectual property that protects creative works for a limited time and gives the copyright holder (typically the creator), the exclusive right to reproduce, create adaptations, distribute, perform, and display
Authentication - the act or mode of giving authority or legal authenticity to a statute, record, or other written instrument or a certified copy thereof

Additional Resources

Courtesy Barbara T. Hoffman, Esq.: A Visual Artist's Guide to Estate Planning (http://www.hoffmanlawfirm.org/Publications/A-Visual-Artists-Guide-to-Estate-Planning-The-Marie-Walsh-Sharpe-Art-Foundation-and-The-Judith-Rothschild-Foundation.pdf), based on a conference co-sponsored by The Marie Walsh Sharpe Art Foundation and The Judith Rothschild Foundation, and 2008 Supplement Update (http://www.hoffmanlawfirm.org/Publications/A-Visual-Artists-Guide-to-Estate-Planning-The-2008-Supplement-Update.pdf); see also www.hoffmanlawfirm.org

VLA provides pro-bono arts-related legal representation and education to low-income artists and nonprofit arts and cultural organizations. VLA's Artists Over Sixty program provides legal services and education to senior artists to address age-specific legal and business issues.

January 31, 2017

Center for Art Law Case Law Updates

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

XL Speciality Insurance Co. v. Otto Naumann Ltd., 1:12-cv-08224 (S.D.N.Y.) On January 19, 2017 a Summary Judgement Motion was filed by the plaintiff, an insurance company, seeking to collect funds paid to a "forgetful" defendant, Otto Naumann Ltd, for a painting "Still Life With Oysters, Lemons, Shrimps and Fruits and a Blue and White Earthen Jug on a Draped Table", attributed to an Davidsz de Heem, which was declared as lost in 2012 but was simply forgotten at the Lowy framing business. According to the complaint, the "combination of [Naumann's] poor memory, poor records and an extended absence from the gallery caused him to forget that he gave the painting to Lowy." The defendant, who later reclaimed his painting, reportedly collected $357,500 under a fine art dealer policy covering "all risks of physical loss or damage."

Sotheby's, Inc. v. De Saint Donat-Pourrieres, 1:17-cv-00326-GBD (S.D.N.Y. Jan. 17, 2017) Sotheby's is seeking the return of $672,000.00 paid to the defendant, Lionel De Daint Donat-Pourrieres, for the sale of an alleged forged painting, "St. Jerome" that was purported to be attributed to Parmigianino, a 16th Century Italian painter. Decision to amend attribution is based on the tests performed by Orion Analytical, LLC, of pigment samples from the painting that were found to contain modern synthetic pigment. The defendant refused to return the money he received. Sotheby's Consignment Agreement indicates that a forgery is subject to rescission of the proceeds. Sotheby's is seeking damages for breach of contract.

Phoenix Ancient Art, SA v. J.Paul Getty Museum, 1:17-cv-241-ER (S.D.N.Y. Jan. 12, 2017) The plaintiff, a Swiss dealer, sued the Getty Museum, trust and director, alleging breach and tortious interference with contract, fraud and trade secret misappropriation. According to the complaint, the defendants stopped the negotiations to acquire a collection of sculptures from the Torlonia family and worked without Phoenix, after the Italian Culture Ministry signed an accord, to effectuate a transfer of the collection. The art dealer has claimed $77 million in damages.

Fontenot v Pruitt, 5:16-cv-01339-W (W.D. Okla. Nov. 22, 2016) In 2016, the Oklahoma legislature passed a law, Oklahoma House Bill 2261, amending American Indian Arts and Crafts Sales Act of 1974 and effectively prohibiting artists like the plaintiff to market their art as "American Indian-made" when they are not members of federally-recognized tribes. The plaintiff is a member of a state-recognized tribe, and joined the Pacific Legal Foundation to challenge the law with a federal constitutional lawsuit against the Attorney General of Oklahoma. On January 4, 2017, J. Lee. R. West issued a stipulation to stay enforcement of the law while the lawsuit is pending. Complaint is available here http://blog.pacificlegal.org/wp/wp-content/uploads/2016/11/2016-11-15-Complaint-FINAL.pdf?mc_cid=4308e35fe6&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.

April 2, 2017

Center for Art Law Case Law Updates

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

Reif v. Richard Nagy, 161799/15 (N.Y. App. Div. 2017) Leon Fisher and Milos Vavra, descendants of Holocaust victim Fritz Grünbaum, have sought for decades the restitution of two watercolors: "Woman in a Black Pinafore" (1911) and "Woman Hiding Her Face" (1912) by Egon Schiele. They reportedly brought a new lawsuit in New York State Court in 2017, based on the newly enacted Holocaust Expropriated Art Recovery Act (HEAR). The descendants are claiming that the former case was settled only on "legal technicalities", while the merits of the argument that the art was looted by the Nazis were not addressed. They now hope that HEAR will persuade the court that there is enough evidence to show that Fritz Grunbaum was a victim of Nazi looting.

Estate of Lisa de Kooning v. COMMISSIONER OF INTERNAL REVENUE (Tax, Feb. 28, 2017) On February 28th, the estate of Lisa de Kooning, daughter of Willem de Kooning, the famous Dutch-American abstract expressionist, filed a petition in U.S. Tax Court after the value of the taxable estate was increased by $231 million in a notice of deficiency. In 2013, a statement of value for the artwork was requested by the IRS's art appraisal division, and the estate submitted an appraisal from Christie's Appraisals pegging the value of the corpus at $231.4 million before any discounts. After consultations with economic professors, the estate proposed a blockage discount of nearly 60% for the paintings and 85% for most of the sculptures. The IRS refused to apply "blockage discounts" to the value of the artwork.

Estate of Eva Franzen Kollsman v. Commissioner of Internal Revenue, No. 26077-09 (US. Tax Court, Feb. 22, 2017) Decedent died in August 2005, leaving a will. Among the estate's assets were two 17th-century paintings by Pieter Brueghel the Younger, though there were some questions concerning the attribution of one painting to Pieter Brueghel the Elder. George Wachter, vice president of Sotheby's North America and South America, sent the executor a fair market value estimate and a consignment of rights agreement. The estate filed a Form 706, United States Estate Tax Return, reporting the fair market values, as of the valuation date of respectively $500,000 for one work and $100,000 for the other. The Commissioner of Internal Revenue assigned a different value to the paintings, and a notice of deficiency to determine the fair market values was issued. During redetermination, the court rejected Wachter's valuation and its related arguments: the bad condition of the paintings, the change in market demand, and the uncertainty of the attribution. Instead, the court took into account the valuation of Respondent's expert to fix the amount of the fair market values with some adjustments (respectively: $1,995,000 and $375,000) that now have to be declared and paid.

Petrella v. MGM, 10-55834, 10-55853 (9th Circuit, 22 Aug. 2014) On remand from the Supreme Court, the Ninth Circuit court rejected MGM's argument that the license it obtained for the book based on the life of boxer Jake LaMotta and 1973 screenplay on the same subject entitled it to a grant of summary judgment of non-infringement, and remanded the case back to the district court. Plaintiff Petrella sued MGM in 2009 for copyright infringement by the film Raging Bull of a 1963 screenplay written by her father. She renewed the copyright in the 1963 screenplay but not in a book or a 1973 screenplay. One of the issues the Ninth Circuit dealt with was whether the book MGM had licensed for Raging Bull was a derivative work of the 1963 screenplay, or vice versa. The Ninth Circuit also directed the lower court to determine whether plaintiff was estopped from arguing that the book MGM licensed was a derivative work of the 1963 screenplay.

Fertitta, III et al v. Knoedler Gallery, LLC et al, 1:2014cv02259 (S.D.N.Y, 29 Jan. 2015) In January 2017, District Court Judge Paul Oetken refused to dismiss allegations of entrepreneur Frank Fertitta against art historian Oliver Wick, a Rothko expert, and two other defendants in the case tied to the December 2011 demise of the renowned Knoedler Gallery of serial allegations for forgeries. Plaintiff Fertitta bought one of the alleged fake Rothko paintings at the Knoedler Gallery. The Judge upheld the following causes of action: Rescission, breach of warranty, and indemnification counts against the art historian Wick. Wick's lawyer argued that the Rothko expert reasonably believed the work was genuine. Urs Kraft, whom Plaintiff alleges coordinated the sale on behalf of an nonexistent mysterious "Mr. X", also faces breach of warranty, breach of contract, fraud, fraudulent concealment, aiding and abetting fraud in the ruling. In addition, ex-Knoedler employee Jaime Andrades faces the heaviest charges, including violating the federal anti-racketeering law and a RICO conspiracy charges.

Allbritton et al. v. United States, 4:15-cv-00275 (S.D.Tex., 30 Jan. 2015, settled Sept. 2016) The widow of Texas Tycoon Joe L. Allbritton sued the United States for herself and the estate of her husband in the Southern District Court of Texas for the IRS to tax the tycoon $40.6 million on the belief that he had taken ownership of a treasure trove of art including works by Picasso, Monet, and van Gogh. In her Complaint, Allbritton asserts that that IRS's math is based on a false belief that the family's holding corporation distributed artwork and antiquities worth $139 million to late Joe Allbritton in 2005, and that it also paid the Allbrittons $364,000 to insure the art from 2005 to 2008; payments that contribute "taxable dividends." Ms. Allbritton asserts in her Complaint that the company never transferred ownership of the art to her husband in 2005, and sued the IRS for a full refund of $40.6 million. On Sept. 30, 2016, it was announced that Allbritton's estates and the IRS reached a settlement.

Green v. Nat'l Gallery of Art, London, 1:16-cv-06978 (S.D.N.Y. Sep. 7, 2016) The purported heirs to a Matisse painting, "Portrait of Greta Moll" (1908), are suing the National Gallery of Art, London, for its possession and $30 million in damages. Greta Moll's relatives allege that the painting was lost during the Allies' occupation of Germany and, therefore, its acquisition violates international law. The defendants argue that (1) they performed their due diligence in purchasing the painting in 1979, and (2) because the Allied occupation of Germany came after the fall of the Third Reich and end of World War II, the painting is not protected by the international laws on which the plaintiffs rely.

Beck v. Christie's, 141 A.D.3d 442 (N.Y. App. Div., July 7, 2016) This case is related to a Degas drawing, "Danseuses." Plaintiffs seek an injunction and tremble damages against the auction house for allegedly violating the NY Gen. Bus. Law and engaging in "Deceptive Acts" during its November 3, 2009 sale on behalf of an undisclosed private seller. Nazis illegally confiscated the Kainers' substantial art collection, and the heirs only obtained a French inheritance certificate only in May 2012. New York courts have applied CPLR 214 (2)'s three-year period of limitations for statutory causes of action. Christie's asserted that the alleged injury occurred at the time of the sale, more than five years before the filing of the action by the heirs. The action was dismissed based on the statute of limitations.

Klinger v. Conan Doyle Estate Ltd., 14-1128 (7th Cir., 4 Aug. 2014) A plaintiff who brought a declaratory judgment for anthologizing modern authors' stories about Sherlock Holmes after the estate of Arthur Conan Doyle threatened to work with Amazon and other booksellers to block sales of the anthology unless a license was obtained, was awarded $30,000 in attorneys' fees he spent on the appeal at the Seventh Circuit. The court called the estate's approach to encourage payment of a license fee by employing booksellers to boycott the plaintiff anthology "a form of extortion", and stated that it could be considered a violation of the antitrust laws.

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.

April 4, 2017

5Pointz

By Barry Werbin

On Friday March 31st, the Eastern District of New York in Cohen v. G&M Realty issued a decision allowing the plaintiff artists in the high profile 5Pointz graffiti art mural case (filed in 2013) to go to trial, finding that the artists demonstrated they were harmed by the building's demolition under the Visual Artists Rights Act (VARA). In particular, Judge Block found that the question of "recognized stature" under VARA was clearly a factual one for the jury, which would assess the plaintiffs' expert's report and testimony at trial.

The court also dismissed the defendants' counterclaim for abuse of process. The plaintiffs' separate claims for conversion, property damage, and intentional infliction of emotional distress were also dismissed: Cohenv.G&MRealty.pdf

April 30, 2017

Center for Art Law Case Law Updates

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

The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith and Lynn Goldsmith LTD, 1:17-cv-02532 (S.D.N.Y., April 7, 2017) "[To] Protect the work and Legacy" of Andy Warhol, his foundation brought a pre-emption action against a photographer claiming copyright in the photograph Warhol used to create a portrait of a late pop musician Prince on the theory of fair use. The complaint is available at http://www.courthousenews.com/warhol-foundation-seeks-pre-empt-copyright-claims/?mc_cid=b0e709ebfc&mc_eid=8a2eda70d8.

Anonymous v. Anonymous, 2017 NY Slip Op 02613 (N.Y., April 4, 2017) A husband commenced a matrimonial action on May 6, 2014, claiming separate ownership of tens of millions of dollars' worth of art, while his wife claims the art was jointly owned and that own four specified works of art purportedly worth a total of approximately $22 million. The parties had a prenuptial agreement, but it did not specifically address how the parties should divide their art collection upon dissolution of the marriage. The question presented was whether certain works of art purchased during the marriage were the husband's separate property or were jointly held. The court held that the fact that the invoice was in the husband's name alone was not the end of the inquiry: "We conclude that title to personalty cannot be determined by relying solely upon an invoice. In determining title to the artwork in question, all the facts and circumstances of the acquisition and indicia of ownership must also be considered." More at http://law.justia.com/cases/new-york/appellate-division-first-department/2017/305863-14.html.

Cohen v. G&M Realty, 13-CV-05612 (FB) (RLM) (E.D.N.Y. Mar. 31, 2017) Earlier in the year, the court ruled that the plaintiff artists in the high profile 5Pointz graffiti art mural case may go to trial, finding that the artists demonstrated they were harmed by the building's demolition under the Visual Artists Rights Act (VARA). In particular, Judge Block found that the question of "recognized stature" under VARA was clearly a factual one for the jury, which would assess the plaintiffs' expert's report and testimony at trial. The defendants' counterclaim for abuse of process were dismissed. The plaintiffs' separate claims for conversion, property damage, and intentional infliction of emotional distress were also dismissed. Opinion available at https://casetext.com/case/cohen-v-gm-realty-lp-2?mc_cid=b0e709ebfc&mc_eid=8a2eda70d8.

Court d'appel [CA] [regional court of appeal] (Versailles, 1e ch., March 24, 2017) Judge Alain PALAU ruled against Christie's auction house, invalidating its 2008 decision to transfer the burden to pay the resale royalty cost from the seller of an art work to the accepting buyer. It was after the sale of the Yves Saint Laurent art collection in the Grand Palais, Paris, in 2009, that the Comité Professionnel des Galeries d'Art (CPGA) and Syndicat National des Antiquaires (SNA) brought a complaint against Christie's shifting obligations to the buyer, claiming among other things that: Christie's was gaining a competitive advantage by seeking to charge buyers rather than sellers.

In March 2017, the Court d'Appel de Versailles ruled that according to the wording of article L 122-8 of the French Intellectual Property Code, the droit de suite should be paid by the vendor "without exception", and that the clause transferring the resale royalty cost to the buyer in the general condition of sales should be void and with no effect. Christie's France intends to appeal before the French civil Supreme Court. Decision is available at https://www.actualitesdudroit.fr/documents/fr/jp/j/ca/78646/2017/3/24/15_07800?mc_cid=b0e709ebfc&mc_eid=8a2eda70d8.

Foyt Jaglom v. Jaglom, 650580/2017 (N.Y., Feb. 2, 2017) This inheritance dispute involves heirs of the art of collector Simon M. Jaglom. His former daughter-in-law brought an action seeing to affect title to artworks consigned by Jaglom's executor. In her complaint, she alleged that the son of the collector consigned the artworks to the auction house in 1994, after the works were gifted to him, and that the remaining 15 artworks passed on to his heirs when he died in 1992. In 1994, Michael Jaglom, as executor of his father's will and co-owner of the gifted artworks, consigned them to the custody of Sotheby's in New York. The auction house supposedly kept the work in storage since that time without charging any storage fees. In 2015, Sotheby's informed the plaintiff that, because of her trustee position in the "Jaglom Family 2012 Art Trust", it intended to transfer custody of the works to a third-party storage facility.

Cipriani v. Kendrick Lamar Duckworth et al., 1:15-cv-04078 (S.D.N.Y Dec. 2016) This action for copyright infringement and related claims brought by Cipriani, the sole author, owner, and exclusive holder of copyrights in a photograph titled "Twins" ("Photograph"), arise from the defendants' unauthorized use of the Photograph in conjunction with the online video release and commercial promotion of a music recording titled "The Blacker the Berry", was voluntarily dismissed after the parties entered mediation.

Hayuk v. Starbucks Corporation, 1:15-cv-04887 (S.D.N.Y, Jan. 12, 2016) Hayuk, a Brooklyn muralist, was seeking an injunction against the ad campaign of Starbucks and its advertising agency 72andSunny Partners LLC, damages up to $150,000 per infringed-upon painting, and a share of the Mini Frappuccino profits. This occured after the advertising agency, despite the refusal of Hayuk, borrowed from her pieces to launch the Frappuccino campaign. It was ruled that the set of works were not substantially similar, even if they shared the use of overlapping colored rays, as "the elements fell into the unprotectible category of "raw materials" or ideas in the public domain". Memo and affirming order available at http://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2015cv04887/443881/50/.

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.

May 30, 2017

Art Law Mixer @ VLA: Estate Planning for Artists

Wine and Cheese Reception followed by Panel Discussion

6:00 PM - 8:00 PM, Thursday, June 8th

Volunteer Lawyers for the Arts Headquarters, 1 East 53rd Street, New York, NY 10022

Speakers: Amy Altman, Esq., Peter Arcese, Esq., Barbara Hoffman, Esq., and Betsy Dale, Esq.

Moderator: Irina Tarsis, Esq.

Preceded by our signature wine and cheese reception, the Center for Art Law brings you a group of experts who will discuss important issues involved in creating an estate plan. They will explain the benefits of wills and trusts, the importance of record-keeping, the more nuanced issues of art appraisal and taxation, and considerations in establishing a foundation. They will offer insight on how to retain and manage tangible and intangible assets and increase revenue through licensing.

The evening is designed to provide a useful overview for emerging and established artists who are interested in preserving their legacies in a way that aligns with their values. If you haven't considered your options before, this is a good starting point; if you are in the midst of the process of estate planning, this may offer helpful guidance. As you approach your final resting place, what will you do to ensure your art lives on?

June 8, 2017

Center for Art Law Case Updates

Republic of Turkey v. Christie's, Inc., 1:2017cv03086 (S.D.N.Y. Apr. 28, 2017) A U.S. Court has granted Turkey 60 days to verify that it is the lawful owner of Guennol Stargazer, a 5,000-year-old, marble statue originally found in the Gallipoli Peninsula in the Eastern Thrace of Turkey (https://www.dailysabah.com/turkey/2017/04/29/battle-over-ancient-relic-pits-ankara-against-christies?mc_cid=9214b948a0&mc_eid=8a2eda70d8). Upon discovering the statue, Turkey brought action against Christie's for auctioning Guennol Stargazer in its April 28th "Exceptional Sale" for approximately $14,000,000. (http://www.christies.com/salelanding/index.aspx?intsaleid=26907&saletitle=&mc_cid=9214b948a0&mc_eid=8a2eda70d8)

Thrasher v. Siegel, 2:cv-17-3047 (W.D.CA, Apr. 24, 2017) Last month a street artist, Monte Thrasher, brought action against Marci Siegel, for ordering the destruction of his mural "Six Heads" without giving the artist the 90 day notice required by the Visual Artists Rights Act (VARA) (http://www.courthousenews.com/wp-content/uploads/2017/04/Bukowski.pdf?mc_cid=9214b948a0&mc_eid=8a2eda70d8). Thrasher claims that Siegel was operating a bar inside the building on which "Six Heads" was painted and that she planned to replace it with a mural promoting her business. The complaint notes that "Six Heads" achieved great renown in the Los Feliz area it occupied since the mid-1990s. Thrasher seeks punitive damages and the opportunity to restore "Six Heads."

US v. Erik Ian Hornak Spoutz a/k/a Robert Chad Smith, a/k/aJohn Goodman, and a/k/a James Sinclair (C.D.N.Y., Feb 16, 2017) Michigan art dealer Erik Spoutz was sentenced to 41 months in prison for wire fraud charges arising out of his sale of dozens of forged artworks purportedly by renowned postwar American artists, such as Willem De Kooning, Robert Indiana, and Joan Mitchell. He allegedly started to sell forged works of art as early as 2005 under various aliases. Despite Spoutz's attempt to provenance for the artworks, Assistant U.S. Attorney Andrew Adams declared: "Spoutz falsified a complex series of seemingly original documentation of each piece's provenance: bills of sale, letters from art dealers, correspondence from prior owner's estates, etc." (http://theartnewspaper.com/news/michigan-art-dealer-sentenced-to-41-months-for-running-modern-art-forgery-scheme/)

Pulphus v. Ayers, Civil Action No. 17-310 (U.S.D.C . Arp. 14, 2017) A high school student, David Pulphus, whose artwork ("Untitled #1") won an art competition and was chosen to be displayed in the halls of Congress, filed a federal lawsuit because his work was removed from the Cannon Tunnel in the U.S. Capitol Complex, after several Congressional members complained about the paintings as being anti-police. The painting depicts a confrontation between police and protesters on the street in downtown St. Louis, and two officers in the forefront have the heads of pigs or warthogs. The lower court denied the plaintiffs' request for preliminary injunction relating to the retroactive removal of Mr. Pulphus' artwork. It was found that the painting's removal did not violate the artist's First Amendment rights. An appeal is anticipated.

Naruto v. Slater 15-cv-04324, 2016 WL 342231, at *3 (N.D. Cal. Jan. 18, 2016). In January 2016, the U.S. District Court for the Northern District of California dismissed a copyright infringement suit brought by PETA on behalf of a selfie-taking, six-year-old macaque named Naruto (http://clancco.com/wp/2016/02/naruto-copyright-author-owner-monkey/?mc_cid=9214b948a0&mc_eid=8a2eda70d8). PETA alleged that the defendants, a photographer and publisher, unlawfully claim ownership of the photographs that Naruto snapped of himself while playing with Slater's camera. The court held that the Copyright Act does not extend standing to non-humans, and therefore the case was properly dismissed. On appeal, PETA stands by its original claim that Slater is not the rightful owner of the photographs. Oral arguments are scheduled for July 12, 2017. (http://clancco.com/wp/2017/05/hey-hey-were-the-selfie-taking-monkeys/?mc_cid=9214b948a0&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.

June 28, 2017

Special Gallery Visit with Davide Cantoni

Friday, July 7, 2017
6:00 PM - 8:00 PM Eastern Daylight Time

Cantoni Studio | 20 Jay Street #315 | Brooklyn NY 11201

EASL's International Law and Fine Arts Committees, together with Center for Art Law, are pleased to offer a special studio visit.

Our host, Davide Cantoni, will open his DUMBO studio for an intimate viewing of mixed-media artwork and a discussion of the issues of international copyright law and fair use. Davide Cantoni's artistic practice, which began in the late 1980s, has focused on the way our society presents images and how they are consumed. Cantoni's particular interest is in relation to new imagery published in the New York Times (he has lived and worked in NYC for the last 20 years).

At the upcoming event, Davide will show one of his recent projects, which uses images from international news sources detailing accounts of war, famine, and other tragic news from around the world.

Born in Italy, Cantoni completed his BA in Fine Arts at the Slade school in London, and completed an exchange year at the Hochschule Der Kunst in Berin in 1988. He attended the Royal College of Art and received an MA (RCA) in Painting in 1993. His work has been shown extensively in Europe and the USA, as well as South Korea, and is included in many public and private collections, some of which include the MoMA and the OSRAM.

After the viewing, guests are invited to join in a lively discussion on topics of fair use and copyright law, moderated by Irina Tarsis, a founding director of the Center for Art Law. Conversations themes are appropriation and licensing, as well as international copyright laws. The New York State Bar Association's EASL Section and the Center for Art Law are excited to join together to engage with this phenomenal artist, and to discuss the copyright and fair use issues that he, and many others, have faced. Light snacks and refreshments will be served.

Tickets are only $20.00! Spaces are limited so reserve now!
Register Now: http://www.nysba.org/store/events/registration.aspx?event=EA3900JL17

June 30, 2017

Center for Art Law Case Law Updates

Sotheby's Inc. v. R.W. Chandler, LLC et al., 1:16-cv-09043 (S.D.N.Y. 2016) In 2013, three New York art dealers arranged through Sotheby's an $80 million private sale of "Salvator Mundi", a rediscovered painting by Leonardo da Vinci. Shortly thereafter, they learned that the buyer, Swiss art dealer Yves Bouvier, resold the painting for $127.5 million to Russian art collector Dmitry Rybolovlev. The dealers, hoping to recover the difference, sought legal action against Sotheby's on the basis of fraud. Rybolovlev, represented by Daniel J. Kornstein, also reportedly questioned the role of Sotheby's in the valuation of the painting. The question at hand revolves around whether Sotheby's representative Samuel Valette knew about Rybolovlev's interest in the artwork. The complaint alleged that weeks before the Sotheby's sale, a meeting was organized by Samuel Valette for inspection of the painting at a Central Park apartment owned by a Rybolovlev family trust.

Sotheby's (represented by Marcus Asner and Arnold & Porter) filed a preemptive lawsuit explaining that the discrepancy in prices represents a distinction between fair market values and retail replacement values for insurance purposes, which are typically higher. The case was dismissed with prejudice in February 2017. Complaint is available at https://www.unitedstatescourts.org/federal/nysd/465541/1-0.html?mc_cid=6822f462dc&mc_eid=8a2eda70d8.

McKenzie et al v. Fishko et al, No. 1:12-cv-07297 (S.D.N.Y. 2015) Defendants' motions for summary judgment were granted in the case between Plaintiff, an art collector who alleged fraud and breach of contract, among other causes of action, against Defendants, Forum Gallery and its owners. According to the complaint, Forum Gallery was employed to represent Plaintiff and make purchases on his behalf. McKenzie "allege[d] that Defendants breached their obligations by manipulating or otherwise falsifying the prices to which the discounts were applied, thereby increasing Defendant's' profits". However, McKenzie failed to allege sufficient facts in support of these claims. After the court granted Defendants' motion for summary judgment on most claims, the case was voluntarily dismissed in 2015. Read Memorandum and Opinion and order at http://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2012cv07297/402393/136/.

The State of Georgia v. William Lowe, d/b/a Lowe Galleries, Inc., The Lowe Gallery, or Bill Lowe Gallery, 123031191 (Ga. April 2017) Gallery owner Bill Lowe plead guilty to using money he should have paid to artists for his own needs. Lowe used the proceeds from consigned art sales for personal uses, such as making mortgage and property payments. The stolen funds amounted to over $500,000. In court, Lowe stated, "I acknowledge that artists relied upon me to receive payment from the proceeds of sales from the artwork." He went on to say that he was "glad" to make the artists "whole again". His sentence includes a 10-year probation to one count of felony theft by conversion, 750 hours of community service, and restitution to the amount of $256,514.92, which was placed in an escrow account to be paid out to the artists. Read Indictment at https://www.scribd.com/document/279817223/Fulton-County-grand-jury-indictment-of-Bill-Lowe?mc_cid=6822f462dc&mc_eid=8a2eda70d8.

MCH Swiss Exhibition Basel Ltd. et al v. Adidas America, Inc. et al, 1:17-cv-22002 (S.D.Fla. May 2017) Plaintiff Art Basel filed suit against Adidas for trademark infringement concerning the use of its mark ART BASEL® on at least 1,000 pairs of sneakers. Adidas produced and distributed a high volume of the infringing sneakers during the annual art fair organized and marketed by Plaintiff without asking for or receiving permission. Art Basel claims the infringement has damaged it by diminishing the value of its licensing partnerships, as well as the value of its incontestable trademark, and that Adidas' actions were intentional, committed with full knowledge of Art Basel's rights. Plaintiff looks to recover injunctive relief, Defendant's profits, damages, and reasonable attorney's fees.

Crile v. Commissioner of Internal Revenue, 9713-10, 29044-11 (US Tax Court, 2 Oct. 2014) The United States Tax Court ruled that art-related expenses, such as relevant travel, materials, and equipment, are tax-deductible as professional expenses. The IRS claimed that the artist and Hunter College professor Susan Crile owed $81,000 in unpaid taxes, arguing her art was "an activity not engaged in for profit." This Tax Court's ruling reaffirmed the artist's victory over the IRS, by finding that she was in "the trade or business" of being an artist. Read Memorandum of Fact and Opinion at https://www.ustaxcourt.gov/InOpHistoric/CrileMemo.Lauber.TCM.WPD.pdf?mc_cid=6822f462dc&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.

August 10, 2017

Center for Art Law Case Law Updates

The following case selection first appeared in the Center for Art Law newsletter:

Pape v. LG Electronics USA Inc., 17-cv-04925 (S.D.N.Y., July 18, 2017) Paula Pape, daughter of late Brazilian artist Lygia Pape, brought suit against LG Electronics, Inc. on the premise that the Seoul-based electronics company is using images of her mother's 2003 sculpture Tteia 1, C in the packaging and promotion of its new product, the K20 V mobile phone. The cultural institution responsible for managing the reproduction rights of Lygia Pape's artwork had denied LG's request to use images of the artist's work multiple times. Paula Pape alleges that, despite these rejections, LG went forth with its original advertising campaign plan and used the images without permission. This case comes at an interesting time: a retrospective spanning five decades of the artist's career at the forefront of Brazilian modernism just closed at the Met Breuer.

Noland v. Michael Janssen Gallery Pte., Ltd et al, 1:17-cv-05452 (S.D.N.Y, July 18, 2017). Artist Cady Noland filed suit for copyright infringement and violation of the Visual Artists' Rights Act against a group of dealers, collectors, and galleries. Noland claims that the defendants were involved in the decision to hire a conservator to refurbish her work Log Cabin (1990), without consulting her. She alleges that the refurbishment carried out by the defendants exceeded that which is considered a normal restoration. Noland argues that because the conservator severely altered Log Cabin--by replacing the original wood that had rotted with new, protected wood--the work now stands as a copy of the original work. In recent years, Noland has received much attention for her sensitivity with regard to restoration, and has gone as far as to disavow artworks. In the current suit, Noland is seeking both the destruction of Log Cabin, as she believes it no longer represents a genuine product of her creation, and that the defendants cease circulating images of the work.

Tierney et al v. Camuto Consulting, Inc. et al., 2:17-cv-04936 (C.D.Cal., July 5, 2017). Street artists Joseph Tierney, Cary Patraglia, Spencer Valdez, and Keith Rowland brought suit against fashion designer Vince Camuto for using their work in his Spring/Summer 2017 ad campaign without seeking the artists' permission (http://www.thefashionlaw.com/home/graffiti-artists-are-increasingly-lawyering-up-to-fight-fashion-copycats?mc_cid=ed6f0f25a5&mc_eid=8a2eda70d8). This copyright infringement suit was fueled by the fact that, beginning in February 2017, Camuto's ad campaign featuring the artwork was displayed on a variety of platforms -- social media, news media, both Vince Camuto and department store websites, and within Vince Camuto stores. Tierney, Patraglia, Valdez, and Rowland seek reputational, future, and punitive damages. This case is one of several others centering around retailers' improper usage of graffiti artists' public murals.

Berkowitz, et al., v. Christie's, 652549/2017 (Sup. NY, May 11, 2017) Co-trustees of the Southern Trust brought action against Christie's, alleging that the auction house, entrusted with the sale of Elizabeth Taylor's jewelry, violated terms of the consignment agreement as well as breached its fiduciary duty when it rescinded the sale of the so-called Taj Mahal diamond. Complaint available at https://www.courthousenews.com/wp-content/uploads/2017/05/5-11-liz-taylor.pdf?mc_cid=ed6f0f25a5&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.


October 21, 2017

Center For Art Law Case Law Updates

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

Apperson v. City of St. Louis, Case No. 17-cv-2461, (E. D. Missouri, Sep. 22, 2017). This fall, MacArthur Justice Center filed a lawsuit alleging that St. Louis officials are improperly arresting, jailing, and prosecuting protesters. The suit claims that the arrests violate First Amendment rights of free speech, the detentions violate the Fourth and Eighth Amendments, and a general due process violation. The suit also brings analogous state-law claims. It seeks monetary damages and an injunction against the continuance of these alleged practices. The ACLU filed a parallel lawsuit alleging police misconduct (using chemical weapons, interfering with video of police activity, and violating due process).

Sotheby's v. Nature Morte LLC and Anatole Shagalov, 655636/2017, (Sup. Ct. N.Y. Cty. 2017, Aug. 31, 2017). Sotheby's filed a complaint in New York State Court seeking to recover $ 6 million dollars from a winning bidder of an artwork at a recent Sotheby's auction. Anatole Shagalov signed a personal guarantee obligating him to an immediate payment for any piece of artwork on which Nature Morte LLC placed the highest bid. Nature Morte placed the winning bid of $ 6 million dollars, but allegedly failed to pay for the artwork. Sotheby's seeks to recover the $6 million dollars plus interest and fees from Nature Morte LLC and Anatole Shagalov, arising out of the breach of the personal guarantee. The Answer was filed on October 11th.

Bouvier v. Adelson, cv 16-3655, (2d Cir. 2017 Aug. 28, 2017) - On August, 28, 2017, a panel for the Second Circuit held that Section 1782 discovery is available for use in a proceeding in a foreign or international tribunal, even when the applicant is not making a claim for damages. The court also held that once an applicant has obtained discovery under Section 1782 for one foreign proceeding, the applicant may use that discovery in other foreign proceedings. The case arose out of the ongoing dispute between Russian Oligarch Dmitry Rybolovlev, and Swiss art dealer Yves Bouvier.

Thome v. The Alexander & Louisa Calder Found'n, 152721/2017, (Sup. Ct. N.Y. Cty. Aug. 22, 2017) - Joel Thome, owner of a theatrical stage set that is allegedly the last artwork by Alexander Calder, filed a new lawsuit against the Calder Foundation, seeing $2 million dollars in damages, based on three causes of action: (1) tortious interference, (2) interference with prospective advantage, (3) product disparagement.

Aboutaam v. Dow Jones & Co., (Supreme Court of the State of New York) On July 17, 2017, Hicham Aboutaam, filed a libel suit against the Wall Street Journal for an article that reported that countries were investigating him for allegedly trafficking in artifacts looted by ISIS.

Moi v. Chihuly Studio, Inc., 17-2-14150-0 SEA, (Sup. Ct. WA, King County, Jun. 17, 2017) While Chihuly's glass sculptures are on display at the New York Botanical Garden, Michael Moi sued his former employer, Chihuly Studio, seeking a declaratory judgment of co-authorship and co-ownership of some of the paintings produced by Dale Chihuly. Other causes of action are accounting of revenue and imposition of constructive trust, as well as injunctive relief under VARA.

International

Weber v. Haerle, [Switzerland, 2017], Ger., Heidi Weber, long-time friend and collaborator of Le Corbusier, is suing Peter Haerle, Culture Director of Zurich, for defamation. In 1964, Weber assisted Le Corbusier in the co-founding of his lakefront museum in Zurich. The construction permit required that 50 years later, the property must be turned over to the city of Zurich. Just two years past the expiration of the original building permit, the city changed the name of the institution from the Centre Le Corbusier Heidi Weber Museum to Pavillon Le Corbusier. Weber and her son have spoken out on the grave injustice they believe is being perpetuated by the local government. Weber is so enraged that she removed her collection of Le Corbusier artifacts that she had loaned to the city. On July 5th, the Court authorized the case to proceed.

Simon de Pury v. Ruedi Staechlin, High Court, UK, 2017, Eng. Recorded as the most expensive work of art ever sold, Paul Gauguin's "Nafea Faa Ipoipo (When Will You Marry?)" (1892) was actually sold for $210 million, placing it behind de Kooning's "Interchanged" (1955) and Cezanne's "The Card Players" (1890-5) as the third most expensive artwork ever known to be sold. This revelation came to light on June 29th, at the United Kingdom High Court, when Simon de Pury sued to collect a hefty commission--$10 million--he argues is owed to him and his wife Michaela under a "gentleman's agreement." De Pury claims that he and his wife acted as middlemen in negotiating the sale of the painting from childhood friend Ruedi Staechlin to the Emir of Qatar. The de Purys and Staechlin argue conflicting accounts of the nature of Simon and Michaela's involvement in this transaction. Staechlin's attorney alleges that the de Purys engaged in a breach of fiduciary duty by misrepresenting prices and "pestering" Staechlin, which de Pury denies.

T. v. T., v. 6 Ob 145/16s, Austria, 2017, On June 27th, the Regional Court for Civil Law in Vienna found the 2012 contracts establishing the Franz West Private Foundation--initiated by those non-family members with a financial stake in West's sales and signed by West on his deathbed--to be improperly executed and incapable of being upheld. The Foundation alleged that it was the rightful owner of West's assets and royalties, rather than his now-deceased wife and their two children. The Court's argument turned on the finding that the Foundation's paperwork was so sloppily drafted that material elements of the agreement--including a formal acceptance--were absent. In line with the Court's ruling, the remaining unsold artwork will now be given to West's children and their guardian... so long as the Foundation does not appeal the Court's decision.

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.

December 2, 2017

Center for Art Law Case Law Updates

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

Chowaika & Co. Fine Arts Ltd., Case No. 17-13228 (MKV) [Carpenter Fine Violins and Collectibles, LLC v. Ezra Chowaiki and David E.R. Danger, 65929/2017 (Sup. Ct. NY Cnty. Nov. 15, 2017), RH9 Group, LLC et al v. Chowaiki, 656930/2017, Sup. Ct. NY Cnty. Nov. 15, 2017, Leser v. Chowaiki & Co. Fine Art Ltd. et al, 656870/2017 (Sup. Ct. NY Cnty Nov. 12, 2017)]

Three lawsuits filed against Chowaiki & Co. Fine Art corporation precipitated the filing for bankruptcy by the private gallery and art advisory service that was founded in 2004 by Ezra Chowaiki, who is now accused of defrauding clients. The cases are stayed pending the U.S. Bankruptcy Court for SDNY.

Joshua Liner Gallery v. Kagan, 656849/2017 (Sup. Ct. NY Cnty. Nov. 9, 2017) -- The plaintiff, a New York gallery, alleges fraudulent concealment of sales of paintings directly through the defendant's studio in violation of the artist-gallery agreement, as well as a failure to create and deliver a painting to the Gallery in consideration of certain sale goals, and other grievances. The complaint reveals that the Gallery was acting as Kagan's exclusive agent for the sale of artworks produced since 2014, and was entitled to a commission of 50% on any artwork Kagan sold. Kagan's art is slated for exhibit at the Virginia Museum of Contemporary Art in 2019.

Berkshire Museum Lawsuits: Two groups of plaintiffs -- members and heirs of Norman Rockwell -- filed two lawsuits in an attempt to enjoin the deaccessioning of 50 artworks in a November 13th Sotheby's auction. The heirs of Norman Rockwell filed a complaint, arguing that the deaccession "violates the museum's establishing statute, promises made to donors and the fiduciary obligations of its trustees." The Massachusetts Attorney General, Maura Healey, supported the Rockwell plaintiffs in a filing. The second complaint, brought by members of the Museum, argues that the museum has reneged on its obligations to its supporters by putting the works up for auction. The theory is that because, under Massachusetts law, members of a nonprofit are treated like shareholders in a corporation, the relationship between the corporation and its governing charters and bylaws must be treated like a contract. A hearing was held on November 1, 2017, and the papers (https://cdn2.hubspot.net/hubfs/878449/Memo%20of%20Law%20in%20Support%20of%20Ps'%20Emergency%20Mtn%20for%20Ex%20Parte%20Temp%20Rest%20Order%20%20%20Prelim%20Injunction%20After%20Notice%20Agst%20BM'sSale%20of%20Art(B2211764).pdf?t=1510241925709&mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8) in support can be (https://cdn2.hubspot.net/hubfs/878449/Affidavit%20of%20Stephen%20C.%20Sheppard(B2211547).pdf?t=1510241925709&mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8)found here (https://cdn2.hubspot.net/hubfs/878449/Affidavit%20of%20Dan%20L.%20Monroe(B2211546).pdf?t=1510241925709&mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8). The Court denied the request for an injunction, allowing the planned November 13th sale to proceed (http://blog.timesunion.com/localarts/files/2017/11/Rockwell-Berkshire-Museum-Injunction1.pdf?mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8).

Schmitt v. Artforum International Magazine Inc. et al, 159464-2017 (Sup. Ct. NY Cnty. Oct. 25, 2017) -- Curator and Art Fair Director Amanda Schmitt, along with eight other women, sued Artforum and Knight Landesman over his alleged sexual harassment (https://www.law360.com/articles/978587/artforum-sued-for-sex-harassment-as-co-publisher-resigns?mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8). The complaint accuses the publication of allowing Landesman's sexually abusive behavior toward multiple women to occur without consequence. It also claims that the defendant slandered Schmitt and threatened retaliation against current and former employees who might speak about the harassment to the authorities or the press. The plaintiff seeks compensatory damages of $500,000 plus attorneys' fees and punitive damages.

Mugrabi v. Mana Contemporary, 159407/2017 (Sup. Ct. NY Cnty. Oct 23, 2017) The Mugrabi family sued Mana Contemporary, which stores works for the dealer family, for preventing the removal of art works from its facility due to unpaid fees (https://www.bloomberg.com/news/articles/2017-10-23/big-warhol-collector-says-art-is-held-hostage-by-storage-firm?mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8). Since the filing of the complaint, the court ordered Mana to release some of the works in exchange for a $1 million payment by the Mugrabis (http://theartnewspaper.com/news/new-york-supreme-court-negotiates-release-of-mugrabi-familys-art-from-new-jersey-storage-site?mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8).

Bauer v. Toll, TGI Paris, 7 nov. 2017, n° 17/58735 - The High Court in Paris ruled to restitute a Pissarro painting, "Picking Peas", to the heirs of a Jewish art collector whose art was looted by the French Vichy government. According to the holding, an American couple, Bruce and Robbi Toll, who lent "Picking Peas" to an exhibition in France at the Musée Marmottan Monet in Paris, did not act in bad faith when they bought the painting from Christie's auction house. In addition, the court did not award the Tolls any compensation for their loss. The painting will continue to be held in escrow in the D'Orsay, pending appeal. Insurance values the painting at over $1 million dollars. (https://www.dalloz-actualite.fr/sites/dalloz-actualite.fr/files/resources/2017/11/doc171117-17112017093540.pdf)

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.

December 31, 2017

Center for Art Law Case Updates

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

Halperin v. Gfoeller, 657184/2017 (Sup. Ct. NY Cnty. Dec. 3, 2017) -- after the defendant refused to refund the sale price, a complaint was filed on behalf of an Israeli resident alleging breaches of contract and express warranty based on a 2008 sale of a painted wooden mask attributed by Juan Gris.

Catlin, The Estate of Thomas Lopresti and William Beauty v. Hogan and Christie's, Inc., 160370/2017 (Sup. Ct. NY Cnty. Nov. 21, 2017) -- The plaintiffs allege tortious activities on behalf of the defendants with regard to a unique numbered Andy Warhol screen print "Electric Chair." Whereas Hogan was a co-owner of the artwork, he consigned the work to Christie's without notifying other owners. The work was sold in May of 2006. According to the complaint, the other joint owners of the work learned of the sale in 2016.

Tobin v. The Rector, Church Wardens, and Vestrymen of Trinity Church, in the City of New York, 17 Civ. 2622 (LGS) (S.D.N.Y. Nov. 14, 2017) -- J.Schofield dismissed the Visual Arts Rights Act (VARA) violation complaint brought by an artist against the Trinity Church and others, because in 2004 the artist transferred all of his rights, including copyright in the contested work, to Trinity. The court found that "simply relocating The Trinity Root does not by itself constitute distortion, mutilation or modification under VARA." As to the site-specific nature of the art, the court applied the 7th Circuit decision in Kelly v. Chicago Park Dist., 635 F.3d 290 (2011) to find that unless gross negligence can be established site-specific work is not protected under VARA.

Chowaika & Co. Fine Arts Ltd., Case No. 17-13228 (MKV) [Carpenter Fine Violins and Collectibles, LLC v. Ezra Chowaiki and David E.R. Danger, 65929/2017 (Sup. Ct. NY Cnty. Nov. 15, 2017), RH9 Group, LLC et al v. Chowaiki, 656930/2017, Sup. Ct. NY Cnty. Nov. 15, 2017, Leser v. Chowaiki & Co. Fine Art Ltd. et al, 656870/2017 (Sup. Ct. NY Cnty Nov. 12, 2017)]
Three lawsuits filed agains Chowaiki & Co. Fine Art corporation have precipitated the filing for bankruptcy by the private gallery and art advisory service founded in 2004 by Ezra Chowaiki, who is now accused of defrauding clients. The cases are stayed pending the U.S. Bankruptcy Court for SDNY decision.

Joshua Liner Gallery v. Kagan, 656849/2017 (Sup. Ct. NY Cnty. Nov. 9, 2017) -- The plaintiff, a New York gallery, alleges fraudulent concealment of sales of paintings directly through the defendant's studio in violation of the artist-gallery agreement, as well as a failure to create and deliver a painting to the Joshua Liner Gallery (Gallery) in consideration of certain sail goals, and other grievances. The complaint reveals that the Gallery was acting as the Artist's exclusive agent for the sale of artworks produced since 2014, and was entitled to a commission of 50% on any artwork Kagan sold. Kagan's art is slated for exhibit on at the Virginia Museum of Contemporary Art in 2019.

Berkshire Museum Lawsuits: Two groups of plaintiffs -- members and heirs of Norman Rockwell -- filed two lawsuits in an attempt to enjoin the deaccessioning of 50 artworks in a planned November 13th Sotheby's auction. The heirs of Norman Rockwell filed a complaint arguing that the deaccession "violates the museum's establishing statute, promises made to donors and the fiduciary obligations of its trustees." The Massachusetts Attorney General, Maura Healey, supported the Rockwell plaintiffs in a filing. The second complaint, brought by members of the Museum, argues that the museum reneged on its obligations to its supporters by putting the works up for auction. The theory is that because, under Massachusetts law, members of a nonprofit are treated like shareholders in a corporation, the relationship between the corporation and its governing charters and bylaws must be treated like a contract. A hearing was held on November 1, 2017. The Court denied the request for an injunction, allowing the planned November 13th sale to proceed.

Schmitt v. Artforum International Magazine Inc. et al, 159464-2017 (Sup. Ct. NY Cnty. Oct. 25, 2017) -- Curator and Art Fair Director Amanda Schmitt, along with eight other women, sued Artforum and Knight Landesman over his alleged sexual harassment. The complaint accuses the publication of allowing Landesman's sexually abusive behavior toward multiple women to occur without consequence. It also claims that the defendant slandered Schmitt and threatened retaliation against current and former employees who might speak out against the harassment to the authorities or the press. The plaintiff seeks compensatory damages of $500,000 plus attorneys' fees and punitive damages.

Mugrabi v. Mana Contemporary, 159407/2017 (Sup. Ct. NY Cnty. Oct 23, 2017) The Mugrabi family sued Mana Contemporary, which stores works for the dealer family, for preventing the removal of art works from its facility due to unpaid fees. Since the filing of the complaint, the court ordered Mana to release some of the works in exchange for a $1 million payment by the Mugrabis.

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.

January 19, 2018

WYWH: "Inside Auction Houses" [By lawyers for lawyers]

By Laura B. Richardson

On October 26, 2017, the EASL Section hosted a panel discussion, "Inside Auction Houses: The Legal Issues", at the New York City offices of Arent Fox, LLP. The program was attended by approximately 30 attendees. The panelists included Sherri Cohen (Bonhams), Mari-Claudia Jiménez (Sotheby's), Jonathan Illari (Phillips Auctioneers), Margaret J. Hoag (Christie's), and Daniel H. Weiner (Hughes Hubbard & Reed LLP). The discussion, moderated by Lena Saltos and Elizabeth Urstadt, offered experienced insights on the inner workings of auction houses and the legal issues specific to their unique business models, which entails regularly acting as trusted agent of clients looking to sell high-value artwork, objects, or collections to buyers at auction or through private sale. The panelists described the exciting, challenging and varied legal work they do, both as in house counsel at auction houses and in their capacity as external counsel to auction houses.

Mari-Claudia Jiménez, formerly with Herrick, who is now Senior Vice President and Managing Director of Trusts & Estates and Valuations, introduced and explained the auction sale process from consignment to post-sale. She included in her discussion common sources of consigned objects - private collectors, estates of deceased collectors, museums, and dealers - as well as the frequent challenge that auction houses face when collecting sale funds due from successful bidders for their lots. She also explained the procedure an auction house may follow when it does not wish to accept an object or has a conflict of interest, but may wish to refer it to another regional or specialized auction house that would be a more appropriate venue to sell a certain object or price point.

Sherri Cohen, Director of Bonhams' Trust and Estates Department and an expert on title insurance with years of work at ARIS, laid out the process of obtaining appraisals for purposes including insurance and estate tax liability, as well as how auction houses evaluate and use different types of appraisals and valuations, such as insurance valuations, tax valuations, and fair market value appraisals. She also highlighted the difference between appraisals and auction estimates, which unlike a valuation, are given ranges of what an auction house expects property to fetch at auction based on various factors such as dimensions, provenance, past sales history, expected appreciation, comparable sales, and prevailing market conditions. Sherri elaborated on the protocol followed when auction houses receive or realize they have a fake offered for sale. There is an expectation of extensive due diligence and research on provenance that the auction houses undertake to mitigate any sort of risk or liability from these threats of in-authenticity. She also described the terms regarding rescission included in buyers' conditions of sale. For example, one term reads:

"If within one year from the date of sale, the original purchaser (a) gives written notice to us alleging that the identification of Authorship of such lot as set forth in the... catalog description of such lot...is not substantially correct based on a fair reading of the catalog, and (b) within 10 days after such notice returns the lot to us in the same condition as at the time of sale, and (c) establishes the allegation in the notice to our satisfaction (including by providing one or more written opinions by recognized experts in the field, as we may reasonably require), then the sale of such lot will be rescinded and, unless we have already paid to the consignor monies owed him in connection with the sale, the original purchase price will be refunded." (Bonhams Conditions of Sale, Limited Right of Rescission)

To illustrate how seriously auction houses take safeguarding against fraud, Mari-Claudia Jiménez noted that Sotheby's even employs scientific forensic testing for purposes of art authentication.

Jonathan Illari, who has worked with both brick and mortar auction houses (Bonhams and Phillips) as well as online auctions, described common financial and legal consignment terms found in the industry. For example, the auction house (as consignee) agrees to take possession of the property and act as agent of the consignor in the sale of the property; the consignor must warrant that he is the sole owner of the property, that there are no other encumbrances on the property, and that the property is genuine and as described in the agreement; the consignor will agree to pay a seller's fee that can be calculated in a number of different ways; a reserve amount may be specified, under which the consignee may not sell the property; while the property is in the consignee's possession, it will be insured (at consignee's expense) for the estimated value listed in the agreement; the consignee will obtain the right to market and promote the property for sale. He also examined how online sales have altered the auction house business, which pieces are better suited to online sales (such as lower value items, or pieces such as rare or fine wine, or watches), and how he thinks in certain situations online auctions allow a wider reach to a broader audience of potential buyers while taking in a broader range of property. He also discussed the ad-hoc determinations auction houses make to broker a private sale of high-value pieces as opposed to selling an object at public auction. Some considerations include the wishes of the seller, whether that be privacy, urgent liquidity, or to shelter the work from the risk of not selling at auction.

Maggie Hoag described the important application of the laws of agency in the auction house business. Auction houses predominantly play the role of agent of a seller and represent their interests as they endeavor to sell the property. This inevitably creates important considerations of fiduciary duties. This clear agency relationship between auction houses and sellers was contrasted with the uncertain roles art dealers or galleries can at times play in the art world, as Dan H. Weiner commented. He warned of the complexities of having several "middle men" and unknown players involved in art sale transactions, as is common for the art world. Maggie and Dan went on to discuss the challenges of collecting sale proceeds from successful auction bidders, the significance of third party guarantees for auctions, and the steps taken prior to potential litigation.

Auction houses that handle art and fine objects have a special allure, and the legal work that is done on behalf of these businesses connect sellers and buyers of these luxury goods. EASL succeeded in bringing together an array of experiences and experts from the leading auction houses, who were all knowledgeable and experienced on the topic. The time-pressures and competition between auction houses to obtain the best lots for upcoming sales was secondary to the stimulating work attorneys receive at Bonhams, Phillips, Sotheby's, and Christie's, as was made apparent through colorful examples and the collegiality shown in the panel setting. Their command of the legal and commercial issues for auction houses allowed for an interesting and informative afternoon of discussion.

Cases involving auction houses for further reading:

Mitchel Gray v. Jeff Koons et al.,(S.D.N.Y. Docket No. 15-cv-9727)

Phillips Auctioneers LLC v. Zhang Chang (NY Supreme Court Index No. 652901/2017)

JP Morgan Chase Bank, N.A. v. Comm'r (In re Estate of Newberger), T.C. Memo 2015-246
Estate of Kollsman v. Comm'r, T.C. Memo 2017-40

February 2, 2018

Center for Art Law Case Law Updates

The following case selection first appeared in this week's Center for Art Law newsletter:
Edited by Elissa D. Hecker

Berkshire Museum Lawsuits (Mass. App. Ct. Jan. 16, 2018) After the Massachusetts Appeals Court granted a 30 day injunction to halt the sale of 40 works from the Berkshire Museum, appellate briefs were filed on behalf of the heirs of Norman Rockwell (https://cdn2.hubspot.net/hubfs/878449/17-P-1548%20-%20Appellant%20Brief%20-%20to%20file(B2239282).pdf?t=1516804118800&mc_cid=18d2d325e7&mc_eid=8a2eda70d8) and the Berkshire Museum trustees (https://cdn2.hubspot.net/hubfs/878449/17-P-1548%20-%20Appellant%20Brief%20-%20to%20file(B2239282).pdf?t=1516804118800&mc_cid=18d2d325e7&mc_eid=8a2eda70d8). Both filings contested the Superior Court's decision to allow the sale of the Museum's artworks to proceed, and reiterated the arguments put before the trial court. As part of the ongoing saga, the Massachusetts Attorney General's Office ("AGO") has been investigating the Museums' planned sale. The AGO recently filed a motion to extend the injunction and have further time to review the plan. On February 1st, the Appeals Court granted the AGO's motion, and continued the injunction until February 5th (http://www.ma-appellatecourts.org/display_docket.php?dno=2017-J-0510&mc_cid=18d2d325e7&mc_eid=8a2eda70d8).

Estate of Chu v. Jacquet, 161429 (N.Y. Sup. Ct. Dec. 27, 2017) The plaintiff brought several claims on behalf of her sister's estate against her sister's estranged husband. The plaintiff claims that her sister never meant for her art to remain with the defendant, but passed away before she could update her will. Further, the plaintiff claims that the defendant denied the plaintiff's family access to her artwork for eight months while he improperly stored the artwork in a storage container behind a gas station. As a result, the artwork was "severely damaged." The plaintiff alleges negligence, fraudulent concealment (and, in the alternative, negligent misrepresentation), breach of contract, that she is entitled to an inventory of her sister's artwork in the defendant's possession, as well as an accounting of previously-undisclosed gifts or sales of her sister's artwork by the Defendant. Plaintiff also claims entitlement to damages of at least $500,000. The Answer was filed on January 18, 2018. The Complaint is available here (https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=PTxIR_PLUS_RX1uXPk7hsw9bzYw==&system=prod&mc_cid=18d2d325e7&mc_eid=8a2eda70d8), and the Answer is available here (https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=XevQE/WYkqva9q0u6wa28g==&system=prod&mc_cid=18d2d325e7&mc_eid=8a2eda70d8).

De Pury v. Staechlin, High Court (UK, Eng. 2017) Simon de Pury and Michaela de Pury won their legal battle against Ruedi Staechlin over the commission for the sale of Gauguin's "Nafea faa Ipoipo". Justice Morgan of the High Court in London ruled that the de Pury couple was entitled to a $10 million commission fee as a result of the $210 million sale.

Hearty v. The Bonfoey Company, 1:18-cv-00015 (N.D. Ohio Jan. 3, 2018) Plaintiffs, a married couple, filed suit against the Bonfoey Gallery, the Bonfoey Company's president, and an art dealer in Florida to whom Bonfoey sold the painting at issue. The plaintiffs stored their painting, "Shades of Evening", by George Inness, at their 94-year-old mother's home, after defendant Bonfoey failed to sell the painting under a consignment agreement. Four years later, Bonfoey's president approached the mother, without informing the plaintiffs, had her sign a new consignment agreement, and sent the painting to the defendant art dealer in Florida. The defendant art dealer allegedly had a buyer for the painting when the plaintiffs demanded its return. Consequently, the plaintiffs brought this suit alleging replevin, conversion, intentional infliction of emotional distress, fraud, breach of bailment, civil theft, and civil conspiracy. The plaintiffs seek to enjoin and restrain the defendants from transferring the painting to a third party, and request return of the painting, damages, attorney's fees, and costs of this action. The Complaint is available here (https://www.courthousenews.com/wp-content/uploads/2018/01/Richard-Hearty.pdf?mc_cid=18d2d325e7&mc_eid=8a2eda70d8).

Hayden v. 2K Games, Inc., 1:17-cv-02635 (N.D. Ohio Dec. 18, 2017) Artist James Hayden filed suit in district court for copyright infringement, violation of the Visual Artists Rights Act, and unjust enrichment under Ohio common law against the creators of the popular video games NBA 2K16, NBA 2K17, and NBA 2K18. Hayden is an Ohio-based tattoo artists who creates original tattoos for high-profile NBA players. He alleges that six of his copyrighted tattoo designs are depicted in the games on the player avatars for LeBron James, Kyrie Irving, Danny Green, and Tristan Thompson. The plaintiff seeks damages and enjoinment of the defendant's further use of his tattoo designs. The Complaint is available here (https://www.courthousenews.com/wp-content/uploads/2017/12/James-Hayden.pdf?mc_cid=18d2d325e7&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.

February 13, 2018

5Pointz Decision

By Barry Werbin

Yesterday's decision by Judge Block (51 pages plus images of all the art) awarded the 5Pointz aerosol artists maximum statutory damages of $150,000 for all 45 works in issue. Judge Block was clearly perturbed by developer Gerald Wolkoff's attitude, emphasizing: "If not for Wolkoff's insolence, these damages would not have been assessed."

It will be interesting to see how this fares before the Second Circuit, which has never ruled on a VARA case substantively as to the test and required evidence for a "recognized work", and of course on damages.

gov.uscourts.nyed.370997.69.0.pdf

February 19, 2018

Goldman v. Breitbart, et al. (Photographer v. News Media)

By Cristopher Beall

Judge Forrest of the SDNY issued a decision last week in a photographer case against various news media. Judge Forrest rejected the so-called "server test" as a defense to a claim of infringement arising from the news organizations' use of an "embed" feature to allow recipients of a news feed to see the photographer's shot of Tom Brady, even though the copy of the photo did not reside on the news organizations' servers. Judge Forrest's decision suggests that the "server test" interpretation of the standard of liability for a violation of the display right is not a correct reading of the Copyright Act. If she is correct, her ruling will dramatically alter the manner in which content is shared on the internet.

Goldman v. Breitbart, et al - Opinion & Order, 2-15-2018-C3.pdf

March 3, 2018

Center for Art Law Case Law Updates

Edited by Elissa D. Hecker

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

Equinox Gallery Ltd. v. Dorfman (S.D.N.Y. Jan. 25, 2018). The Southern District of New York ruled in favor of the Equinox Gallery in Vancouver, Canada, against Fred Dorfman, famous New York art dealer, who is facing civil charges for selling stolen works by Jasper Johns. (https://www.theartnewspaper.com/news/dealer-of-works-stolen-by-jasper-johns-s-assistant-may-be-held-liable-under-racketeering-charges-says-court?mc_cid=3775e3bebc&mc_eid=8a2eda70d8)

Cenedella v. Metro. Museum of Art (S.D.N.Y. Feb. 6, 2018). Artist Robert Cenedella filed a $100 million antitrust class action in Manhattan federal court against the giants of the New York art world, namely the Metropolitan Museum of Art ("the Met"), the Whitney Museum of American Art, the Museum of Modern Art, the Guggenheim Museum, and the New Museum of Contemporary Art. On behalf of himself and "innumerable other deserving artists", he claimed that the museums violated antitrust laws by showing artists represented by five galleries merely because of close financial ties between the museums and the galleries. (https://www.courthousenews.com/wp-content/uploads/2018/02/Cenedella.pdf?mc_cid=3775e3bebc&mc_eid=8a2eda70d8)

Native Am. Church of N. Am. v. Transp. Sec'y Admin. (W.D. Tex. Jan. 26, 2018). A settlement agreement was reached on January 26, 2018 between the Native American Church of North America (NACNA) and the Department of Homeland Security, namely the Transportation Security Administration (TSA). The TSA mishandled religious artifacts while the NACNA was traveling.
(https://turtletalk.files.wordpress.com/2018/01/nacna-v-tsa-settlement-docs-final.pdf?mc_cid=3775e3bebc&mc_eid=8a2eda70d8)

Cohen v. G&M Realty L.L.P. (E.D.N.Y. Feb. 12, 2018). In 100 page decision, Judge Frederick Block of the Eastern District ruled in favor of the group of street artists who painted the "art mecca of the 5Pointz", a highly decorated building in Long Island City. Artists sued Gerald Wolckoff, a developer, who whitewashed the building without warning to make condos. This is a big win, worth $6.7 million, for street art and for moral rights. (https://news.artnet.com/art-world/judge-awards-6-million-5pointz-lawsuit-1222394?utm_content=from_artnetnews&utm_source=Sailthru&utm_medium=email&utm_campaign=US%20Morning%20Newsletter%202.13&utm_term=New%20US%20Newsletter%20List&mc_cid=3775e3bebc&mc_eid=8a2eda70d8)

Zuckerman v. Metro. Museum of Art (S.D.N.Y. Feb. 7, 2018). The Southern District of New York ruled that the Met does not have to give back a Picasso painting back to previous Jewish owners, who sold it in 1938, for a price below market value in an attempt to flee Italian Fascism, because the sale "occurred between private individuals, not at the command of the Fascist or Nazi governments." (https://www.courthousenews.com/wp-content/uploads/2018/02/Picasso.pdf?mc_cid=3775e3bebc&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.

March 6, 2018

Street Artists Awarded $6.75 Million in Damages Against Developer Who Whitewashed Artworks Covering His Buildings

By, Jana S. Farmer
Edited by Elissa D. Hecker

In one of the most important decisions to date applying the Visual Artists Rights Act of 1990 ("VARA") since its adoption, on February 12, 2018, New York's Eastern District awarded $6.75 million in statutory damages to 21 aerosol artists whose works were intentionally destroyed by the owner of the buildings on which they were painted.

Gerald Wolkoff and his four real estate entities owned several dilapidated warehouses in a formerly crime-infested neighborhood in Long Island City, known as 5 Pointz. Around 2002, Wolkoff agreed to let Jonathan Cohen, one of the world's most accomplished aerosol artists (known professionally as Meres One), curate the artworks that were put on the walls of 5 Pointz to cover random graffiti. Cohen created a veritable competition among street artists who vied to win a place on one of the project's "long-standing walls." Ultimately, Cohen's efforts led to a change in the quality of the neighborhood, turning 5 Pointz into a world renowned "graffiti Mecca." The site, featured on television, in video games, and the 2013 motion picture "Now You See Me", became a destination for weddings and school trips, and a major tourist attraction.

Around 2013, after the economic conditions in the area improved significantly, Wolkoff sought municipal approvals to demolish the warehouses and erect luxury condominiums. The artists brought a preliminary injunction to preserve 5 Pointz for street artists. The injunction was denied by the court in November 2013 in a ruling from the bench, with a caveat that a written opinion would follow shortly. Without waiting for the written opinion, Wolkoff had the walls of 5 Pointz painted, covering some artworks completely, and some only partially. Unfortunately, none of the artworks was salvageable. Twenty-one artists filed suit, seeking damages for the destruction of their works under VARA.

VARA was enacted to protect the moral rights of artists in their works of visual art as distinguished from the ownership rights in the works. The statute gives artists the right to sue to prevent the destruction of a work of "recognized stature," an undefined term. Additionally, an artist may seek money damages if his/her/their work is distorted, mutilated or otherwise modified to the prejudice of the artist's honor or reputation. With respect to artworks made part of a building, VARA distinguishes between removable and non-removable artworks. The artist may sue to prevent the destruction of non-removable artwork unless he/she/they had a written agreement with the owner of the building that specified that the artwork may subject to "destruction, distortion, mutilation, or other modification, by reason of its removal." See 17 U.S.C. §113(d)(1)(B). Wolkoff had no such agreements with the artists.

VARA gives the artists an opportunity to remove their works upon 90 days' notice that the building's owner wishes to remove the artwork. See 17 U.S.C. §113(d)(2)(A)-(B). If the artist fails to remove the artwork, or if the owner could not notify the artist despite a good faith effort to do so, the owner may destroy the work without consequences. Id. The 5 Pointz artists were never afforded the opportunity to remove their works.

The 5 Pointz trial began in mid-October 2017 and lasted three weeks. At the eleventh hour, the plaintiffs decided to convert the case to a bench trial. The court, acknowledging the work of eight jurors that followed the case with rapt attention for weeks and − recognizing the cultural significance 5 Pointz had achieved in the local community and worldwide − chose to try the case with the advisory jury, meaning that the court is not bound by the jury's findings, but may choose to be guided by them. In November 2017, the jury issued a non-binding verdict that 36 of the works at 5 Pointz were art of "recognized stature." Judge Block did more than merely adopt the jury's findings; he found that an additional nine works qualified for liability and found Wolkoff's actions to be willful, warranting harsher damages.

Judge Frederic Block of the Eastern District made several important rulings that will likely impact future interpretations of VARA nationwide.

• First, Judge Block gave a road map of the kind of proof needed to demonstrate that an artwork is of "recognized stature," and whether its distortion would be detrimental to the artist's honor and reputation. Specifically, the plaintiff artists demonstrated an impressive array of professional achievements and recognition in the form of fellowships, teaching positions, public and private commissions, media coverage and social media buzz. The plaintiffs submitted the testimony of high-profile luminaries in the field to assert quality, stature, value and potential removability of each work. Judge Block even cited with approval the decision in Martin v. City of Indianapolis, 192 F.3d 608 (7th Cir. 1999), suggesting that "recognized stature" may be sufficiently shown by "certain newspaper and magazine articles" and recommendation letters from the art community.

• Significantly, Judge Block determined that even artworks that are temporary in nature are protected under VARA, regardless of whether VARA does not directly address this issue. Noting that VARA is part of the Copyright Act, under which a work is "created" when fixed sufficiently to be perceived for a period of more than transitory duration, Judge Block pronounced that fixation even for a short period will suffice. Possible short life span of artworks is an issue with street art, as it may be, and frequently is, covered over by new street art, although the 5 Pointz previous artworks were not destroyed or painted over by incoming artists without permission.

• Finally, Judge Block analyzed the artists' proof of damages and found that actual damages could not be shown, as the plaintiffs did not establish a reliable market value of their works, some of which were the size of an entire building wall and thus hard to sell. The court did award the maximum available statutory damages for each of the destroyed artworks at issue, at $150,000 each for the 45 works found to be of "recognized stature," holding that Wolkoff acted willfully and has been insolent and "singularly unrepentant." Thus, Judge Block significantly increased the award that the jury would have given to the artists, which was $545,750 in actual damages and $651,750 in statutory damages.

This case was appealed to the Second Circuit Court of Appeals within days of the decision. As this is a case of first impression for the Second Circuit on issues such as what is considered an artwork of "recognized stature" under VARA, it will be an important case to watch for street artists and property owners.

March 27, 2018

Artists' Rights: Practical Considerations

Tuesday, May 01, 2018
4:00 PM - 6:30 PM

ArtsWestchester
31 Mamaroneck Ave, 9th Floor
White Plains, NY 10601

This program is FREE to all who attend, but capacity is limited so registration is required. This event is for information only, no CLE will be provided.

REGISTER NOW

Join the EASL Section (http://www.nysba.org/easl), ArtsWestchester (https://artswestchester.org/) and Wilson Elser for a discussion on practical ways for artists to protect their copyright and moral rights. The discussion will including licensing, appropriation art, and collaborations.

Speakers:

Jana S. Farmer, Esq., Wilson Elser. Jana is an art lawyer representing art market participants in all stages of the creation, licensing, sale, lending, gifting, merchandising and display of art.

Jill A. Ellman, Esq., M. Ross & Associates LLC. Jill's intellectual property practice incorporates transactional and litigation matters on copyright and trademark issues ranging from registration through enforcement for creative clients in the retail, apparel and luxury goods industries.

Donna Frosco, Esq., Dunnington, Bartholow & Miller. Donna Frosco is a partner with the law firm of Dunnington, Bartholow and Miller LLP in the firm's Intellectual Property and Art Law, and International Practice Groups concentrating on representation of clients in relation to intellectual property and brand protection.

Moderator:

Nisa Ojalvo, VP, Legal Affairs, LVMH Moët Hennessy Louis Vuitton Inc. Nisa joined LVMH's New York office in 2001, and worked previously in Japan and Hong Kong. She is an internationally published photographer and has exhibited her work in Scandinavia, Asia and Europe.

To register over the phone please contact the Member Resource Center at 1-800-582-2452 for questions please contact Beth Gould at Bgould@nysba.org

April 3, 2018

FASHION LAW 2018

Sponsored by the Committee on Continuing Legal Education and by the Fashion Law Committee of the Entertainment, Arts and Sports Law Section of the New York State Bar Association.

Wednesday, April 25, 2018
5:00 p.m. - 8:30 p.m.
Live CLE Program, Networking Reception, and Stylist Presentation

Dorsey & Whitney LLP
51 West 52nd Street
New York, NY 10019

2.0 MCLE Credits: 2.0 Areas of Professional Practice

Agenda
5:00 - 5:30 Cocktails/Networking
5:30 - 5:40 Introductory Remarks/Introduction of moderator/panelists
5:40 - 6:30 Social Media Influencers Panel
1.0 MCLE Credit in Areas of Professional Practice
6:30 - 6:40 Q&A
6:40 - 6:50 Break/2nd Panel Set-up
6:50 - 7:40 Sexual Harassment Panel
1.0 MCLE Credit in Areas of Professional Practice
7:40 - 7:50 Q&A
7:50 - 8:30 Stylist Presentation/Cocktails

Panel I - Social Media Influencers
Social media influencer marketing has become an integral component of many fashion brands' overall marketing strategy. While the power of influencer marketing is undeniable, brands must still be mindful of the potential legal and PR pitfalls involved with using influencers. How can brands and influencers create authentic and effective content while complying with applicable laws and regulations and maintaining consumer trust?

NYSBA's Fashion Law Committee invites you to attend its annual panel for a lively discussion with industry attorneys and influencers as they discuss a range of topics surrounding influencer marketing, including best practices, FTC regulations and enforcement, contract negotiations and recent cases.

Moderator: Sarah Robertson, Esq., Partner, Dorsey & Whitney LLP
Panelists:
Paula Barnes, Esq., Senior Counsel, Macy's, Inc.
Jamie Lieberman, Esq., Partner, Hashtag Legal
Julie Zerbo, Esq., Attorney and Founder/Editor-in-Chief, The Fashion Law
Influencer (TBD)

Panel II - Sexual Harassment/Assault
In this #MeToo era, the fashion industry continues to grapple with issues of sexual harassment and sexual assault that some argue have long plagued the industry. Please join the Fashion Law Committee for a timely and engaging discussion that will explore the ways industry stakeholders are tackling these issues from a legal, policy and organizational perspective. Hear industry insiders, attorneys and advocates discuss employer obligations and best practices, legal protections available to employees and independent contractors, recent legislative and policy initiatives and the impact the recent scandals have had on the fashion industry.

Moderator: TBD
Panelists:
Sara Ziff, Model and Founder/Executive Director, Model Alliance
Andrew W. Singer, Esq., Partner, Tannenbaum Helpern Syracuse & Hirschtritt LLP
Mirande Valbrune, Esq., Author, #MeToo: A Practical Guide to Navigating Today's Cultural Workplace Revolution
Sil Lai Abrams, Activist and Writer

To register, visit: https://www.nysba.org/login/login.aspx?RETURL=%2fstore%2fevents%2fregistration.aspx%3fevent%3d0FJ34

NYSBA Member: $75 | Non-Member: $150

EASL Section Member: $35

Entertainment, Arts and Sports Law Section Chair:
Barry Skidelsky, Esq. | New York City

Committee and Program Chairs:
Kristin Gabrielle Garris, Esq., Tannenbaum Helpern Syracuse Hirschtritt LLP
Erika Maurice, Esq., ALM Media, LLC
Lisa Marie Willis, Esq., Kilpatrick Townsend & Stockton LLP

Learn more about the Entertainment, Arts and Sports Law Section! http://www.nysba.org/EASLHomePage/

Newly Admitted Attorneys: To receive skills credit, newly admitted attorneys must take accredited transitional CLE courses in traditional live classroom settings that have been approved by the CLE Board for use by newly admitted attorneys. For more information about the CLE Rules, please go to www.nycourts.gov/Attorneys/CLE.

Out of State Accreditation: This program has also been approved for MCLE credit by the State Bar of California, the Pennsylvania Continuing Legal Education Board and the Board of Continuing Legal Education of the State of New Jersey. If you require MCLE credit in other states, we can provide you a Uniform MCLE Form.

Partial Credit for Program Segments Not Allowed: Under the New York State Continuing Legal Education Board Regulations and Guidelines, attendees at CLE programs cannot get MCLE credit for a program segment (typically, a lecture or panel, of which there are usually several in a program) unless they are present for the entire segment. Those who arrive late, depart early, or are absent for any portion of the program WILL NOT receive credit for that program segment.

April 11, 2018

Center for Art Law Case Law Updates

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

Viktor v. Lamar, No. 18-cv-1554 (S.D.N.Y. Feb. 20, 2018). Visual artist Lina Iris Viktor sued musical artists Kendrick Lamar, SZA, and Top Dawg Entertainment, for allegedly using Viktor's art to create a scene in the music video for "All the Stars," the lead single for the Black Panther soundtrack. Viktor further alleges that she was approached by representatives two times for the use of her art in and promotion for the movie. However, she turned them down both times. Viktor alleged copyright infringement, contributory copyright infringement, and vicarious contributory infringement against the defendants, and demanded a declaration that defendants violated the Copyright Act, a permanent injunction on defendant's use of her works, and damages. The Complaint can be read at: https://www.google.com/url?hl=en&q=https://itsartlaw.us2.list-manage.com/track/click?u%3D78692bfa901c588ea1fe5e801%26id%3D976b48793f%26e%3D8a2eda70d8&source=gmail&ust=1523553058991000&usg=AFQjCNEbdlgWRPJVezoIQX8YzQQcdn4h0g.

Rentmeester v. Nike, Inc., No. 15-35509 (9th Cir. Feb. 27, 2018). The Ninth Circuit affirmed dismissal of plaintiff photojournalist's copyright infringement suit against defendant Nike. The plaintiff alleged that Nike's "Jumpman" logo infringed on a photograph he took of Michael Jordan mid-dunk with the ball raised above his head. The court held that while the plaintiff had a copyright for the photograph and the way the pose was expressed in it, the pose itself was not subject to copyright protection. The court further held that the logo was not substantially similar to the photograph, and thus Nike had not copied enough of the plaintiff's work to constitute unlawful appropriation. The full decision can be read at: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/27/15-35509.pdf?mc_cid=b08d62be6a&mc_eid=8a2eda70d8.

Reif, Fraenkel, and Vavra v. Nagy, No. 161799/2015 (N.Y. App. Div, April 5, 2018). The New York Superior Court awarded title of two Egon Schiele paintings (https://www.theartnewspaper.com/news/richard-nagy-ordered-to-return-egon-schiele-watercolours-to-heirs-of-holocaust-victims?mc_cid=b08d62be6a&mc_eid=8a2eda70d8) to the heirs of Holocaust victim Franz Friedrich, in application of the Holocaust Expropriated Art Recovery (HEAR) Act 2016, which expands federal statute of limitation for Nazi-era looted art to six years. The full decision can be found at: https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=ArwgFNvrArm9vdnLCoM5nw==&system=prod&mc_cid=b08d62be6a&mc_eid=8a2eda70d8.

Beale v. Wallace Gallery et al, No. 2:2018cv00871 (E.D.N.Y, Feb. 8, 2018). The cousin of Jackie Onassis Kennedy
filed a lawsuit against the owners of a portrait of the First Lady in her teenage years, alleging that it was stolen from the East Hampton family estate in the course of a theft in the 1970s that was never reported. https://www.nytimes.com/2018/02/15/nyregion/jackie-kennedy-onassis-painting-lawsuit.html?mc_cid=b08d62be6a&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.

May 17, 2018

Center for Art Law Case Law Updates

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

Rubin v. Islamic Republic of Iran, 583 U.S. ___ (2018). On February 21st, in a unanimous decision, the Supreme Court ruled that victims of an Iran-sponsored terrorist bombing cannot seize Iran's "Persepolis Collection" at the University of Chicago's Oriental Institute to fulfill payment of the damages they were previously awarded (https://www.theartnewspaper.com/news/terror-victims-cannot-seize-iranian-antiquities-us-supreme-court-rules?mc_cid=97c8bdba58&mc_eid=8a2eda70d8). The Court held that a 2008 amendment to the Foreign Sovereign Immunity Act did not remove the requirement of commercial activity from the Act's bar on seizure of a sovereign nation's assets unless the assets are used in commercial activities within the United States. The full opinion is available at https://www.supremecourt.gov/opinions/17pdf/16-534_6jfm.pdf?mc_cid=97c8bdba58&mc_eid=8a2eda70d8.

Tananbaum v. Gagosian Gallery, Inc. et al, No. 651889/2018 (NY Sup. Ct., filed on April 19, 2018). In September 2013, a private collector signed a contract with Jeff Koons and the Gagosian Gallery, whereby they would deliver to him three sculptures worth more than $13 million. Five years later, he filed a complaint (available at https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=mDyDl8p2L9a_PLUS_SP1ONEOyUA==&mc_cid=97c8bdba58&mc_eid=8a2eda70d8) against the two kings of the New York art scene, condemning a Ponzi-like fraudulent scheme (https://www.theartnewspaper.com/news/legal-battle-over-modigliani-painting-rumbles-on?mc_cid=97c8bdba58&mc_eid=8a2eda70d8).

Silver v. Gagosian Gallery, Inc., No. 652090/2018 (Sup. Ct. NY, filed on April, 27, 2018) This is the second lawsuit filed in eight days against defendant Gagosian Gallery (http://www.artnews.com/2018/04/30/citing-frustration-purchase-8-m-jeff-koons-sculpture-producer-joel-silver-sues-gagosian-gallery/?mc_cid=97c8bdba58&mc_eid=8a2eda70d8) in connection with its prospective sale of multi-million dollar sculptures by artist Jeff Koons. According to the complaint, plaintiff Silver, a film producer, paid $8 million for a sculpture "Balloon Venus" in 2014 and he is yet to see the yellow goddess emerge from Koons' studio. "Frustrated by the delay and skeptical when, if ever," the sculpture he wanted would be done, Silver asked for his money back and learned that he would be forfeiting $3.2 million if he were to stop making payments on the revised payment plan. The plaintiff seeks a declaratory judgment and alleges breach of the New York Arts and Cultural Affairs law. The complaint is available upon request.

Madonna Ciccone v. Gotta Have It Collectibles, No. 156454/2017 (Sup. Ct. NY, April 23, 2018) In July 2017, Gotta Have Rock and Roll held an auction of Madonna's personal items, orchestrated by her former assistant, including a breakup letter she wrote to American rapper Tupac Shakur (a/k/a 2Pac). Madonna filed an emergency court order, alleging that the items should not have been in the possession of her assistant and that she never agreed to the sale (https://www.rollingstone.com/music/news/auction-house-wins-battle-over-madonnas-tupac-letter-w519480?mc_cid=97c8bdba58&mc_eid=8a2eda70d8). The court ruled in favor of the auction house, saying that Madonna had not made any demand for the return of her possessions and that she forfeited her rights. The decision is available at https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=piETQikzGIl4R5YiIEyU6g==&mc_cid=97c8bdba58&mc_eid=8a2eda70d8.

Neumann v. Sotheby's, Inc., No. 652170/2018 (Sup. Ct. NY, filed May 3, 2018) This dispute, now pending appeal, involves the 86 year-old paterfamilias of the Neumann family, who seeks injunction against Sotheby's from offering the painting "Flesh and Spirit" by Jean-Michel Basquiat for sale (https://www.nytimes.com/2018/05/03/arts/basquiat-auction-sothebys-neumann.html?mc_cid=97c8bdba58&mc_eid=8a2eda70d8). Neumann alleged that per a 2015 agreement, which was confirmed a year later, Sotheby's promised Neumann that they would seek his "approval on all matters relating to cataloging, placement, and exhibiting each and every work consigned". Although pieces in the collection are "owned by a variety of persons and entities", they are all considered part of the Neumann Family Collection, of which Hubert Neumann is the steward. However, in April 2018 Neumann learned that his daughter Belinda had consigned Basquiat's "Flesh and Spirit" - part of the collection - to Sotheby's for a sale in May, breaching the terms of his previous agreement with the auction house. The complaint is available at https://www.documentcloud.org/documents/4451958-Complaint.html?mc_cid=97c8bdba58&mc_eid=8a2eda70d8.

US v. Kyriacou, Canaye, et al., CR-18-0102 (E.D. N.Y., Filed Feb. 28, 2018; Superseding Indictment Submitted March 20, 2018) In March 2018, a press release by the Department of Justice revealed that six individuals and four corporate entities were indicted on charges of "conspiracy to commit securities fraud and money laundering conspiracy" (https://www.justice.gov/usao-edny/pr/six-individuals-and-four-corporate-defendants-indicted-50-million-international?mc_cid=97c8bdba58&mc_eid=8a2eda70d8). British art dealer Matthew Green is among the defendants. He is charged with conspiring to launder money using art. Green and others agreed to help an undercover agent clean "over $9 million dollars, which [he] represented to be the proceeds of securities fraud", by selling him the Picasso painting "Personnages" and thus providing him with paperwork for the purchase. The operation was halted before the painting's ownership was transferred. The original indictment is available at https://www.justice.gov/usao-edny/press-release/file/1040471/download?mc_cid=97c8bdba58&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.

July 26, 2018

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.

October 2, 2018

Center For Art Law Case Law Updates

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

Shepard v. European Pressphoto Agency, 291 F. Supp. 3d 465 (S.D.N.Y. 2017).
The plaintiffs, courtroom artists, illustrated many high-profile criminal trials. Their works were published without their consent by the defendants, an international news services and a stock photo agency. Claiming copyright infringement, breach of licensing agreement, and unfair competition, the court granted the motion to dismiss on two last claims, as they are preempted under the Copyright Act 1976. The court denied the motion on the copyright claim. The case was ultimately settled in April 2018.
https://scholar.google.ch/scholar_case?case=8547437924276188111&hl=en&as_sdt=2005&sciodt=2006

Von Saher v. Norton Simon Museum of Art, 897 F.3d 1141 (9th Cir. 2018).
Lucas Craner the Elder's "Adam and Eve" painting was the subject of a long battle between the family of the original owners and the Norton Simon Museum in California. The Renaissance painting was forcibly sold by Jacques Goudstikker, a Jewish art dealer in the Netherlands during WWII, but the Dutch court denied the heirs' claims based on their failure to state a claim before the statute of limitations ran for Nazi-era looted art restoration. The Ninth Circuit court ruled in favor of the museum, to avoid overruling the Dutch decision.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/16-56308.pdf

Williams v. Nat'l Gallery, No. 17-3253-cv, 2018 U.S. App. LEXIS 25519 (2d Cir. 2018).
The New York Court of Appeals for the Second Circuit rejected the restitution of a Matisse painting, entitled "Portrait of Greta Moll", about one of the painter's muses. The painting was in the possession of the National Gallery in London and Moll's heirs sought to have the piece back, claiming that it was stolen from her home in 1947. The Court denied the claim on grounds of lack of jurisdiction, because the alleged theft would have occurred two years after the end of WWII.
https://www.theartnewspaper.com/news/court-rejects-claim-to-matisse-owned-by-national-gallery

Tobin v. Rector, Church-Wardens, & Vestrymen of Trinity Church, No. 17-4010-cv, 2018 U.S. App. LEXIS 23761 (2d Cir. 2018).
The Second Circuit denied Visual Artists Rights Act (VARA) claims to Steven Tobin, the artist behind a 9/11 memorial at the Trinity Church in lower Manhattan. The claimant sought relief for the removal of his "Trinity Root" sculpture from the church site to a Connecticut seminary, which he claims violated his moral rights. However, the court held that he had signed a contract with Trinity, where he waived any such right. https://www.leagle.com/decision/infco20180823125

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.

October 8, 2018

The Artist's Copyright and the Art of Its Protection

Join a panel of skilled attorneys as they discuss copyright as it applies to working artists. Topics will include the fine points of the copyright application and copyright registration, in addition to strategies that unrepresented artists and artists working with a gallery all can employ to protect their work from infringement. Information and insights will be constructive, sensible and anything but abstract!

October 16, 2018 | 4:00 p.m. to 6:00 p.m.

ArtsWestchester

31 Mamaroneck Avenue, 9th Floor White Plains, NY 10601

S P E A K E R S

Betsy Dale, Esq., Dunnington, Bartholow & Miller

Betsy is an attorney practicing in the corporate, litigation, and intellectual property and art law practice areas, with a concentration on disputes, contracts and intellectual property matters.

Jana S. Farmer, Esq., Wilson Elser

Jana is an art lawyer representing art market participants in all stages of the creation, licensing, sale, lending, gifting, merchandising and display of art.

Julie A. Hopkins, Esq., Hopkins IP

Julie provides counseling, registration, and enforcement of trademarks and copyrights to clients in the fashion and apparel, arts, food, beverage, technology, and healthcare industries.

M O D E R A T O R

Nisa Lynn Ojalvo, Vice President Legal Affairs, LVMH Moët Hennessy Louis Vuitton Inc.

Nisa is a corporate transactional lawyer with a specialty in intellectual property. Prior to joining LVMH in 2001, Nisa worked at Millbank Tweed Hadley & McCloy in Hong Kong and at Fuji Television in Japan. She is also an internationally published photographer.


Space is limited. RSVP to Kristina Maldonado at kmaldonado@nysba.org or 518.487.5588.

October 18, 2018

Center For Art Law Case Law Updates

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

Accent Delight International Ltd. et al v. Sotheby's et al, 1:18-cv-09011-JMF (Oct. 2, 2018).
In another international and voluminous case, now against Sotheby's, the Russian oligarch Dmitry Rybolovlev claims that Swiss businessman and art dealer Yves Bouvier defrauded him in connection with the purchase of a world-class art collection, to the tune of approximately $1 Billion. The Complaint alleges that Sotheby's aided and abetted the fraud. It is available upon request at itsartlaw@gmail.com.

US v. Chowaiki, 1:18-cr-00323 (S.D.N.Y. Sept. 26, 2018).
Manhattan art dealer Erza Chowaiki pleaded guilty to charges of fraud (https://www.justice.gov/usao-sdny/press-release/file/1059951/download?utm_source=Center+for+Art+Law+General+List&utm_campaign=5b751c1117-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-5b751c1117-346773625&mc_cid=5b751c1117&mc_eid=8a2eda70d8), and was sentenced to spend 18 months in prison. This is the end of a procedure following his bankruptcy and three years of supervised release for defrauding art dealers and collectors of millions of dollars. He was also ordered to give up his interest in more than 20 works of art involved in the fraud, including pieces by Picasso and Alexander Calder.

Adrian Falkner v. General Motors Company et al., 2:18-cv-00549 (C.D. Cal. Sept. 17, 2018).
A California federal judge allowed the street artist Adrian Falkner to move forward in his copyright lawsuit against General Motors (GM) over an advertisement that incorporated his work. GM failed to convince the judge on summary judgment that the mural was inseparable from the parking garage (https://news.artnet.com/art-world/judge-greenlights-street-artists-copyright-lawsuit-against-gm-1352788?utm_content=from_&utm_source=Center%20for%20Art%20Law%20General%20List&utm_medium=email&utm_campaign=5b751c1117-RSS_EMAIL_CAMPAIGN&utm_term=0_022731d685-5b751c1117-346773625&mc_cid=5b751c1117&mc_eid=8a2eda70d8). This sets aside the classification of the mural as an architectural work, which copyright law permits as pictorial representations. Nonetheless, the court denied Falker's punitive claim for punitive damages. The Order is available upon request at artlawteam@itsartlaw.com.

Matter of Salz, 2018 NY Slip Op 04965 (App. Div. July 5, 2018).
New York's First Department Appellate Division affirmed the Surrogate's court decision to dismiss the petition for discovery by a newly-appointed administrator of the Sam Salz Estate on the grounds that fraud, which might have been conducted in settling the affairs of the renowned private art dealer, should have been discovered sometime after 1999. It was the second ruling from the court in connection with the Salz estate, see Matter of Salz, 80 A.D.2d 769, 436 N.Y.S.2d 713 (App. Div. 1981).

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.

November 12, 2018

Center for Art Law Case Law Updates

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

Pumpkin Season. The Gulbenkian family, one of the biggest names in the art market, is currently being sued before the High Court in London over the claim that it received almost $1.4 million for a Yayoi Kusama sculpture that never materialized.

https://www.bloomberg.com/news/articles/2018-07-27/in-art-deal-gone-awry-an-illustrious-name-faces-claim-of-fraud?utm_source=Center+for+Art+Law+General+List&utm_campaign=d47e3aef42-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-d47e3aef42-346773625&mc_cid=d47e3aef42&mc_eid=8a2eda70d8

Sotheby's v. de Saint Donat-Pourrieres, No. 1:17-cv-00326 (S.D.N.Y. Nov. 6, 2018). A NY federal judge ordered the seller of a painting of Saint Jerome that had been attributed to Parmigianino to refund Sotheby's after an expert report "conclusively" found that the painting was a "modern forgery." Decision available upon request.

https://www.theartnewspaper.com/news/us-court-orders-collector-to-repay-sotheby-s-usd1-2m-for-parmigianino-fake?utm_source=Center+for+Art+Law+General+List&utm_campaign=d47e3aef42-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-d47e3aef42-346773625&mc_cid=d47e3aef42&mc_eid=8a2eda70d8

DeLorean v. Delorean Motor Co. (TEXAS), No. 2:18-cv-08212 (D.N.J. 2018). A federal judge rejected John DeLorean Estate's claim for "Back to the Future" royalties, as it found that the estate for the automobile executive signed over the rights to the proceeds of the contract with Universal when it settled an earlier lawsuit.

https://images.law.com/contrib/content/uploads/documents/399/17039/delorean.pdf?utm_source=Center+for+Art+Law+General+List&utm_campaign=d47e3aef42-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-d47e3aef42-346773625&mc_cid=d47e3aef42&mc_eid=8a2eda70d8

Viktor v. Top Dawg Entertainment LLC, No. 1:18-cv-01554 (S.D.N.Y. Oct. 24, 2018). A New York federal judge refused to give hip hop artist Kendrick Lamar a partial win against a visual artist's claims that the musician copied her artwork for the soundtrack of the movie "Black Panther". The case will move forward to discovery.

https://www.scribd.com/document/372063199/Viktor-v-Top-Dawg-Entertainment-LLC-Et-Al?utm_source=Center+for+Art+Law+General+List&utm_campaign=d47e3aef42-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-d47e3aef42-346773625&mc_cid=d47e3aef42&mc_eid=8a2eda70d8

Alexander v. Take-Two Interactive Software, Inc. et al., No. 3:18-cv-00966 (S.D.Ill. Oct. 24, 2018). The defendant, a videogame company, moved to dismiss the case brought by a tattoo artist against it, where the artist complains that her work, a tribal tattoo placed on the skin of WWE wrestler Randy Orton, was illegally reproduced in the videogame. This is not the first suit concerning athletes' tattoos reproduced in video-games.

https://www.scribd.com/document/376712193/Alexander-v-Take-Two-Interactive-Software-Inc?utm_source=Center+for+Art+Law+General+List&utm_campaign=d47e3aef42-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-d47e3aef42-346773625&mc_cid=d47e3aef42&mc_eid=8a2eda70d8

Meaders v. Helwaser et al., No. 1:18-cv-05039 (S.D.N.Y. Oct. 8, 2018). This ongoing case is awaiting response from the court on whether a standing stabile by Alexander Calder was lawfully sold to Helwaser Gallery in 2016. A relative of Phyliss P. Meaders was given the Calder as a gift and she argues that her partial ownership of the work entitles her to damages when it was sold by her bother Paul Mead III without her knowledge. Complaint and answer available upon request.

Artemus USA LLC v. Paul Kasmin Gallery, Inc., No. 156295/2018 (Sup. Ct. N.Y. Co.). The Paul Kasmin Gallery is currently being sued by Artemus, a company that allows collectors, art dealers, and other professionals to leverage and monetize artworks through sale-leaseback arrangements and art-secured loans. Artemus alleges that the gallery backdated and falsified invoice in striking a 2016 deal to purchase the piece. Amended complaint available upon request.

https://www.courthousenews.com/art-leasing-giant-cries-foul-over-backdated-invoice/?utm_source=Center+for+Art+Law+General+List&utm_campaign=d47e3aef42-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-d47e3aef42-346773625&mc_cid=d47e3aef42&mc_eid=8a2eda70d8

Barnet v. Greek Ministry of Culture, No. 1:18-cv-04963 (S.D.N.Y. June 5, 2018). In the case brought by Sotheby's against Greece, the defendants are moving to dismiss. Sotheby's had removed a bronze horse from sale, after a letter from the Greek government castdoubts on its provenance. It is now suing Greece for interference without lawful justification and seeking declaratory relief to declare the respective rights of the parties regarding the Bronze Horse. Complaint and motion to dismiss available upon request.

https://itsartlaw.com/2018/09/24/case-review-sothebys-v-greece/?utm_source=Center+for+Art+Law+General+List&utm_campaign=d47e3aef42-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-d47e3aef42-346773625&mc_cid=d47e3aef42&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.

Week In Review

By Eric Lanter
Edited By Elissa D. Hecker

GENERAL NEWS

America Votes in the Midterms

The Democrats secured the House of Representatives and the Republicans increased their majority in the Senate, but there were nuances and there remain elections to be called. In the Senate, Democrat incumbents Claire McCaskill and Heidi Heitkamp of Missouri and North Dakota, respectively were unsuccessful in their re-election bids. In Georgia and Florida, the races for governor are still too close to call, and recounts are underway in Florida as required by law in such a close election result. New York Governor Andrew Cuomo was re-elected and a record 117 women won office. With the House of Representatives shifting to Democratic control, it is likely that Nancy Pelosi will take the gavel of the Speaker of the House, and it is also expected that Democrats will begin using their investigative powers, including the subpoena power, soon after being sworn in.

https://www.nytimes.com/2018/11/07/us/elections/women-elected-midterm-elections.html

https://www.nytimes.com/2018/11/06/nyregion/andrew-cuomo-wins-governor.html

https://www.nytimes.com/2018/11/08/us/recount-runoff-florida-georgia.html

https://www.nytimes.com/2018/11/07/us/politics/elections-divided-nation.html

https://www.nytimes.com/2018/11/09/us/florida-ballots-recount-scott-nelson-gillum-desantis.html

https://www.nytimes.com/2018/11/09/us/politics/election-turnout.html

Jeff Sessions Forced Out and Acting Attorney General Has Baggage

The day after the midterm elections, President Trump forced Attorney General Jeff Sessions to resign. Then he appointed Matthew Whitaker as acting attorney general, a move that some have called illegal and unconstitutional without the Senate's consent. Whitaker comes into the position with baggage: He was on the board of a Florida company that a federal judge shut down last year and fined nearly $26 million after the government accused the company of scamming customers. Whitaker has also publicly disputed the need for an investigation. Before Sessions was forced to resign, he signed a memorandum "sharply curtailing the use of so-called consent decrees" that are between the Justice Department and local governments and foster changes in law enforcement and related institutions. The decrees were used during the Obama administration to combat police abuses.

https://www.nytimes.com/2018/11/07/us/politics/sessions-resigns.html

https://www.nytimes.com/2018/11/08/us/politics/sessions-limits-consent-decrees.html

https://www.nytimes.com/2018/11/08/us/politics/whitaker-trump-attorney-general.html

https://www.nytimes.com/2018/11/09/us/politics/matthew-whitaker-donald-trump.html

Trump Suspends Some Asylum Rights, Calling Illegal Immigration 'A Crisis'

President Trump issued a proclamation suspending asylum rights for all immigrants who attempt to enter the United States illegally, which officials said was a policy aimed to prevent several thousand migrants traveling north through Mexico in caravans from entering illegally and then applying for asylum. Within hours of the proclamation being issued, the American Civil Liberties Union filed a lawsuit urging a federal judge in San Francisco to prohibit Trump from moving ahead with enforcing the proclamation, as it would be "in direct violation of Congress's clear command that manner of entry cannot constitute a categorical asylum bar."

https://www.nytimes.com/2018/11/09/us/politics/trump-asylum-seekers-executive-order.html

https://www.nytimes.com/2018/11/08/us/politics/trump-asylum-seekers-executive-order.html

Appeals Court Rules Against Trump on Deferred Action for Childhood Arrivals Immigrant Policy

The 9th United States Circuit Court of Appeals has blocked President Trump from immediately ending an Obama-era program known as the Deferred Action for Childhood Arrivals (DACA) program, calling the administration's move one based on a flawed legal theory. While the federal government argued that the program was unlawful in that Obama did not have the authority to adopt it, the 9th Circuit panel disagreed, finding that there was a long history of the federal government using its discretion to not enforce immigration law against certain categories of people stretching back to the Eisenhower administration. The matter may ultimately end up being decided in the Supreme Court.

https://www.nytimes.com/aponline/2018/11/08/us/ap-us-trump-immigration-legal-challenge.html

Inside the Trump Administration's Fight to Add a Citizenship Question to Census

The Commerce Secretary Wilbur Ross has pushed to add a question to the 2020 census asking whether respondents were American citizens. Backlash began immediately: state attorneys general, cities, and advocacy groups filed lawsuits, and Ross has had to explain how the decision came about. Initially, he said the question was added solely due to a Justice Department request for data to enforce the 1965 Voting Rights Act, but it turned out that he requested the Justice Department to add the question. While he has not had to testify (because the Supreme Court blocked the testimony), a trial is scheduled to begin on Monday, which could decide not only the existence of the question but impact how political districts are remapped after the census carrying consequences to the House of Representatives and the Electoral College.

https://www.nytimes.com/2018/11/04/us/wilbur-ross-commerce-secretary.html

Kentuckian Felons Fight to Restore Right to Vote

Across the country, approximately 6.2 million citizens cannot vote or hold office because they have felonies on their record. Kentucky, Iowa, and Florida impose lifetime bans, and Kentucky has one in 10 of its adults with a felony record. Among African-Americans in Kentucky, one in four have a felony, which prevents them from voting for the rest of their lives and is the highest rate of black disenfranchisement. This situation is due to the "tough-on-crime ethos" of the 1980s and 1990s as it resulted in nonviolent violations such as low-volume drug sales and failure to pay spousal support being the sole cause for disenfranchisement. Efforts are underway in Kentucky and Florida to change the law and reverse the lifetime ban.

https://www.nytimes.com/2018/11/04/us/felony-vote-disenfranchisement-kentucky-florida.html

Justice Ruth Bader Ginsburg Hospitalized

After taking a fall in her office, Supreme Court Justice Ruth Bader Ginsburg was hospitalized with three broken ribs. At 85 years old, she is the court's oldest member and "the linchpin of the four-member liberal minority" on the court. The next session of the Supreme Court begins on November 26th, and given her history of returning soon after injuries or illness, it would not be a surprise to see her hearing cases on the first day.

https://www.nytimes.com/2018/11/08/us/politics/ruth-bader-ginsburg-hospitalized.html

https://www.nytimes.com/2018/11/09/us/politics/ruth-bader-ginsburg-hospital.html

Amazon Plans to Split HQ2 Between Long Island City and Arlington

Amazon appears set to announce that it will establish a second headquarters in two location on the East Coast: Long Island City in Queens and Crystal City near Arlington, Virginia. The two locations will house a total of 50,000 employees. It is rumored that New York State has offered hundreds of millions of dollars in subsidies to the company.

https://www.nytimes.com/2018/11/05/technology/amazon-second-headquarters-split.html

Industries Turn Freedom of Information Act Requests on Their Critics

The Freedom of Information Act (FOIA), and its analogs in states, have long been tools for individuals and companies to hold government institutions accountable. Recently however, they have become used as weapons "in legal and business disputes". For example, when a law professor at the University of California, Davis, criticized H&R Block and Intuit about their making a deal with the Internal Revenue Service for free tax filing services, the companies filed requests with the university. They sought the professor's communications about the companies resulting in dozens of hours and 1,189 pages of documents sent to the companies, and a clear message sent to the professor. The tactic has spread to other industries as well, including activists and industry groups, who have used the requests to undermine the work of researchers in controversial fields.

https://www.nytimes.com/2018/11/05/us/politics/freedom-of-information-requests.html

The Girl Scouts Sue the Boy Scouts

The Girl Scouts organization has sued the Boy Scouts organization for infringing its trademark, engaging in unfair competition, and causing "an extraordinary level of confusion among the public." The cause for the allegations was the Boy Scouts announcing that it will drop "boy" from its program name and welcome girls into the ranks of the organization. The Boy Scouts released a statement, which explained the changes as responding to requests by parents over many years and simply an expansion of programs accommodating girls that have existed within the organization since the 1970s.

https://www.nytimes.com/2018/11/09/us/girl-scouts-sue-boy-scouts.html

Schneiderman Will Not Face Criminal Charges

Prosecutors have announced that they will not charge former New York State attorney general Eric Schneiderman. The potential for charges emerged when Schneiderman resigned amidst accusations that he had assaulted four women. The district attorney in Nassau County said that the accusations were credible but that there were legal hurdles to bringing charges against Schneiderman, but the district attorney did not explain the nature of the hurdles other than that the statute of limitations had expired for some of the charges.

https://www.nytimes.com/2018/11/08/nyregion/eric-schneiderman-abuse-charges.html

Ex-Guard at Nazi Camp Tried in German Juvenile Court

A former guard in Hitler's SS, Johann Rehbogen, is facing trial on charges of assisting in the murder of hundreds of the 60,000 people at the Stutthof concentration camp. The 94-year-old is being tried in a juvenile court, where the maximum sentence is 10 years in prison, and he has been charged with knowing of various methods of killing prisoners and working to enable those methods of killing. The trial is expected to last for the next couple of months, and Rehbogen's attorneys indicate that their client will testify at some point.

https://www.nytimes.com/2018/11/06/world/europe/germany-nazi-trial-johann-rehbogen.html

Below, for your browsing convenience, the categories are divided into Entertainment, Arts, Sports, and Media:

ENTERTAINMENT

Cox Cannot Relocate Impending Music Piracy Showdown

Several major labels, including Sony and Warner Bros. Records, have sued Cox Communications, accusing it of deliberately refusing to disconnect persistent music pirates. A federal judge has issued a decision refusing to transfer the case from the Eastern District of Virginia. The case will move forward on the allegations, which include Cox having devised a system that never permanently bars any users from using its internet service to illegally download music, even after hundreds of infringements.

https://www.law360.com/ip/articles/1096546

Pharrell Williams Sends Trump Legal Threat Letter for Playing "Happy"

The artist Pharrell Williams has sent a cease and desist letter through his lawyer to President Trump for the latter's playing Williams' song "Happy" at a rally just hours after the shooting at a Jewish congregation in Pittsburgh. In the letter, Williams' attorney confirms that Williams did not provide Trump with permission to publicly perform or disseminate his music, including "Happy", and Trump's actions constitute copyright and trademark infringement.

https://www.hollywoodreporter.com/thr-esq/pharrell-williams-sends-trump-legal-threat-letter-playing-happy-synagogue-shooting-1156155

Led Zeppelin Urges 9th Circuit to Undo "Stairway" Ruling

The band Led Zeppelin is pressing the Ninth Circuit Court of Appeals to undo a ruling last month that revived a copyright lawsuit over the intro of its hit song "Stairway to Heaven". An earlier case ended in a favorable decision for the band at trial, but on appeal, the court determined that the judge during the trial gave misleading information to jurors.

https://www.law360.com/ip/articles/1096557

9th Circuit Denies CBS Rehearing on Pre-1972 Songs

On Wednesday, the Ninth Circuit Court of Appeals ruled that it will not reconsider its decision that remastered versions of old recordings are not entitled to new copyright protections, despite CBS's vigorous arguments. The trial court in the case had sided with CBS in holding that music owners could enjoy perpetual copyright because each remastered version of a song was independently copyrightable. On appeal, the Ninth Circuit reversed the decision and opened up remastered versions of songs to not be copyrightable despite arguments by CBS that the older recordings were almost invariably distributed in vinyl format and would currently be in a remastered format and eligible for copyright protection.

https://www.law360.com/ip/articles/1097711

Cloud Lingers Over Jan Fabre's Show Amid Sexual Harassment Complaints

Former members of Jan Fabre's company have accused him of "demanding sex for solos, asking a dancer to masturbate in front of him, and generally running a performing arts company where 'humiliation is a daily bread.'" Activists have demanded that New York University do more to address the allegations of sexual harassment as the company continues to prepare performances there. The university has stipulated with Fabre that he would not appear publicly in conjunction with the show and offered refunds to all who wished them.

https://www.nytimes.com/2018/11/09/arts/nyu-skirball-jan-fabre-metoo.html

ARTS

The Supreme Court Will Not Hear Digital Millennium Copyright Act Safe Harbor Case

The United States Supreme Court disclosed that it will not hear a controversial case dealing with the Digital Millennium Copyright Act's (DMCA) "safe harbor" clause. The clause provides a safe harbor to Internet Service Providers for unlicensed user uploaded content, and in this case, the adult film industry sought to bring the DMCA to be reviewed by the Supreme Court for the first time in its 20-year existence. The industry argued that the lower courts had scattered results on applying the safe harbor clause.

https://www.law360.com/ip/articles/1096538

Judge Refuses to Let Notorious Media Foe Redact 'Copyright Troll' From Ruling

Judge Denise Cote of the Southern District of New York has denied a request by attorney Richard Liebowitz to redact the phrase "copyright troll" from a ruling issued earlier this year. The ruling came after Liebowitz filed a lawsuit and then withdrew it for lack of proof of jurisdiction over the defendant. The defendant moved for attorneys' fees and costs, which Judge Cote denied, but she cautioned Liebowitz against filing any other actions in the Southern District of New York with a frivolous basis for jurisdiction. She then labeled him a copyright troll.

https://www.hollywoodreporter.com/thr-esq/judge-refuses-let-notorious-media-foe-redact-copyright-troll-ruling-1155840

Robert Indiana Estate to Sell Art Valued at Up to $4 Million

Two major pieces of art from the collection of artist Robert Indiana are scheduled to be offered at auction in New York this month. The proceeds will help pay for Indiana's estate's mounting legal fees and repairs to his home. The works to be sold are by Ed Ruscha and Ellsworth Kelly and are expected to bring in around $4 million, according to Christie's. There have been significant legal fees resulting from his business agent accusing a caretaker and publisher of isolating Indiana and selling fake artworks attributed to the artist.

https://www.nytimes.com/2018/11/06/arts/design/robert-indiana-estate-to-sell-art-valued-at-up-to-4-million.html

The Satanic Temple Sues Over Statue

The Satanic Temple (ST) has filed a lawsuit against Warner Bros. and Netflix alleging that the new "Sabrina" series infringes a copyright protected goat-headed statue belonging to ST. The plaintiff is claiming damages of at least $50 million for each alleged infraction and an injunction barring the companies from distributing the series with the image of the statue. ST is based in Massachusetts and defines its mission to "reject tyrannical authority" and to "encourage benevolence and empathy among all people." The statue it is seeking to protect was designed approximately five years ago and was going to be publicly displayed at the Oklahoma Capitol to counter a Ten Commandments statue that ultimately was outlawed from being displayed.

https://www.nytimes.com/2018/11/09/us/satanic-temple-suing-netflix-sabrina.html

Jeff Koons Again An Infringer

A Jeff Koons work known as "Fait d'hiver" is a sculpture that bears a striking resemblance to a 1985 advertisement for French clothing brand Naf Naf. The creator of the advertisement, Franck Davidovici, sued Koons in 2015 and attempted to have the work seized. He was not successful in having the work seized, but the court has agreed that there was copyright infringement and awarded Davidovici $170,000.

https://www.nytimes.com/2018/11/08/arts/design/jeff-koons-fait-dhiver-naf-naf-copyright.html

Chicago Pulls Painting From Auction Following Criticism

Kerry James Marshall's "Knowledge and Wonder" was scheduled to be sold in Chicago at Christie's on November 15th for between $10 million and $15 million. The mayor, Rahm Emanuel, announced that the city of Chicago would sell the work with proceeds going to upgrading the library. The artist criticized the move, and public arts advocates unleashed fierce criticism. The city has cancelled the auction.

https://www.nytimes.com/2018/11/05/arts/design/chicago-kerry-james-marshall-christies-auction.html

China Grants Ivanka Trump Initial Approval for New Trademarks

Ivanka Trump has recently received 16 preliminary trademark approvals from the Chinese government, renewing questions about the Trump family's business commingling with President Trump's public office. The trademarked items included shoes, shirts, and sunglasses, which would appear to be related to her fashion brand that closed in July after Trump announced that she would focus exclusively on her role in the White House. Last year, President Trump had dozens of trademarks preliminarily approved after he told Chinese leader Xi Jinping that he would maintain the United States' policy toward Taiwan.

https://www.nytimes.com/2018/11/06/business/china-ivanka-trump-trademarks.html

Shadow and Support of Government Follows Hungarian Opera

The Hungarian State Opera and National Ballet brought hundreds of members to New York for six productions, but their arrival was tainted by their government's right-wing Prime Minister, Viktor Orban. Hungary's ambassador to the United Nations, Katalin Bogyay, greeted the audience during the opening series with an attack on the Hungarian president but expressed thanks to Orban for his support of the opera and ballet companies. The government's funding and support of the productions comes from Orban's view of the pieces as a "means to achieve prestige and assert national identity."

https://www.nytimes.com/2018/11/04/arts/music/hungarian-state-opera-national-ballet.html

Neighbors Take Tate Modern to Court Over Privacy

The Tate Modern's Blavatnik Building opened in London in 2016 and has been popular with visitors. One of the enclosed walkways in the building, however, looks into private homes of residents in luxury apartments. In 2017, four residents sued the museum, and a court has begun to hear their case for "relentless" invasion of privacy by the gallery. The plaintiffs are seeking an injunction that would require the gallery to restrict access or erect a screen.

https://www.nytimes.com/2018/11/05/world/europe/uk-tate-modern-privacy-law-suit.html

Writer's Invitation is Pulled, Causing Concern For Hong Kong as a Refuge

Exiled Chinese writer Ma Jian was scheduled to speak at the Tai Kwun Center for Heritage and Arts in Hong Kong, but the organization abruptly canceled the event and released a statement: "We do not want Tai Kwun to become a platform to promote the political interests of any individual." They are now seeking "a more suitable alternative venue," but some see the actions as just the latest troubling sign of eroding freedoms in the city. Jian is a well-known author and critic of the Chinese government who just released a book that has been called a "biting satire of totalitarianism that reveals what happens to a nation when it is blinded by materialism and governed by violence and lies."

https://www.nytimes.com/2018/11/08/world/asia/hong-kong-ma-jian.html

Scientists Discover Oldest Figurative Painting in the World in Borneo Cave

For over 40,000 years, in a cave nestled in the jungles of Borneo has sat a work of art depicting a "thick-bodied, spindly-legged animal, drawn in reddish ocher." It has recently been discovered and is presently the oldest figurative art known in the world. The findings shows that ancient humans had made a creative transition to art, demonstrating a shift in how humans saw and thought about the world surrounding them. Until now, the oldest figurative artworks were approximately 40,000-year-old ivory figurines. A new dating method was used in determining the age of the cave art: whereas radiocarbon dating is the standard, it has its limits. In the cave, water trickles down and leaves a translucent "curtain of minerals called a flowstone," which contains uranium, an element that decays at a predictable rate into thorium. The method provided precision into dating the art and confirming it as the oldest in the world.

https://www.nytimes.com/2018/11/07/science/oldest-cave-art-borneo.html

SPORTS

2nd Circuit Delivers Blow to National Football League and Associated Press in Copyright Spat

The Second Circuit Court of Appeals has rejected the National Football League's (NFL) request to reconsider a decision to revive a copyright suit by photographers with the Associated Press (AP). The case was dismissed for failure to state a claim, but the Second Circuit revived the claims as the NFL has used photographs without licenses from the photographers or AP including, in some cases, on promotional materials.

https://www.worldipreview.com/news/second-circuit-delivers-blow-to-nfl-and-ap-in-copyright-spat-16917

Documents Discovered at USA Gymnastics Headquarters

USA Gymnastics officials, in the wake of leadership changes, have found a trove of documents that are "central to a sexual abuse investigation and long sought by investigators." The United States Olympic Committee has moved to seize control of the organization, as there is growing alarm about the management. The recently discovered documents are expected to show the extent of knowledge in the organization of the pervasive sexual abuse by team doctor Lawrence Nassar.

https://www.nytimes.com/2018/11/08/sports/olympics/usa-gymnastics-documents.html

PSG Confirms That It Used Racial Profiling in Recruiting Players

At the pinnacle of French soccer, Paris St.-Germain recruits some of the best players in the world, and it has acknowledged that for the previous five years, its scouts have used racial profiling in recruiting. The announcement was made just as an investigative journalism outlet, Mediapart, was preparing a report on the profiling of several top European soccer clubs. In the case of PSG, recruiters evaluated physical and technical skills and then checked a box noting the players' "origin," and the club has announced that it is beginning an internal investigation into the profiling.

https://www.nytimes.com/2018/11/08/sports/psg-racial-profiling.html

Maryland Fires Two Trainers Who Treated Jordan McNair Before His Death

Two University of Maryland athletic trainers have been terminated by the university after their tending to the football player who died of a heat stroke during spring practice. This is only the latest development relating to the player Jordan McNair's death in the spring: last week, the university president fired the head football coach and the board's chairman resigned. An outside medical report regarding McNair's death found that cold-water immersion was not conducted, and more than an hour elapsed before anyone called for emergency personnel.

https://www.nytimes.com/2018/11/07/sports/maryland-football-trainers-fired.html

Thousands of Greyhounds May Need Homes as Florida Bans Racing

Florida voters passed a measure that ended greyhound racing by the end of 2020, after years of efforts by animal activists calling for an end to the sport. The greyhounds were said to be mistreated and subjected to harsh living conditions. Track owners and trainers argued that no such harsh conditions existed, but Florida voters still backed the measure with 69% of the vote. Regardless, there are thousands of greyhounds in Florida, and while many may become pets, it is expected that many will go race somewhere else.

https://www.nytimes.com/2018/11/09/us/greyhound-racing-florida-adoption.html

National Hockey League (NHL) Concussion Lawsuit Reportedly Near Settlement

The lawsuit involving more than 100 former players suing the National Hockey League (NHL) with claims of negligence in dealing with head injuries appears to be near settlement totaling $18.9 million. The settlement would compensate each player approximately $22,000 each if the reported terms are consummated. The lawsuit has been pending since 2013, and in July 2018, the judge denied class-action certification for the players, prompting settlement negotiations between the parties. The substance of the allegations is similar to those NFL players have made: the league knew the danger of the conditions and concealed those dangers, which include concussions and the brain disease known as chronic traumatic encephalopathy.

https://www.nytimes.com/reuters/2018/11/09/sports/hockey/09reuters-icehockey-nhl-concussions-lawsuit.html

MEDIA

Facebook and Google to Drop Forced Arbitration in Harassment Cases

Facebook has announced that it will no longer force employees to settle sexual harassment claims in private arbitration just one day after Google announced similar plans. Approximately a year ago, Microsoft made a similar move, and Uber followed suit six months later. The use of arbitration clauses in contracts is pervasive as corporations strive to keep disputes, particularly inflammatory ones, away from public scrutiny.

https://www.nytimes.com/2018/11/09/technology/facebook-arbitration-harassment.html

https://www.nytimes.com/2018/11/08/technology/google-arbitration-sexual-harassment.html

Booksellers Protest Amazon's Move to Drop Stores From Certain Countries And Win

Amazon's subsidiary bookstore, AbeBooks, announced that it would drop all sellers from several nations, including South Korea, Hungary, and Russia. Within hours, hundreds of antiquarian book dealers in over two dozen countries removed their books from the website. The acrimony shows the power of Amazon but also the increasing attention that Amazon receives. The company's statement chalked up the scaling back to it no longer being viable "to operate in these countries due to increasing costs and complexities." It then changed its policy in light of the protest.

https://www.nytimes.com/2018/11/04/technology/abebooks-amazon-protest-booksellers.html

https://www.nytimes.com/2018/11/07/technology/amazon-bookseller-protest-strike.html

Media Giants Stop Running Trump Caravan Ad Criticized as Racist

Facebook, NBC, CNN, and Fox News refused to air one of President Trump's political ads characterizing the caravan of asylum seekers in Mexico as the ad came under fire for being a racist and misleading spot. Trump claimed to not know of the ad but said to reporters, "We have a lot of ads, and they certainly are effective, based on the numbers that we're seeing." Some saw its prohibition as getting it a larger audience simply because of the controversy. In the days leading up to the midterms, the ad was "spreading like wildfire - for free" on the internet as networks refused to air it.

https://www.nytimes.com/2018/11/05/us/politics/nbc-caravan-advertisement.html

Sean Hannity Erased a Line by Taking the Stage with Trump

Sean Hannity, a prime-time star on Fox News, posted on Twitter that he would not be on the stage campaigning with President Trump. Hours later, he was on stage campaigning with President Trump in Missouri. Trump welcomed Hannity onto the stage as someone who was "with us since the beginning" and pointed toward reporters in the back calling out, "By the way, all those people in the back are fake news." Hannity's decision to join a subject of news coverage on stage complicates the relationship between the news network and Trump's presidency.

https://www.nytimes.com/2018/11/06/business/media/sean-hannity-trump-fox-news.html

Twitter Said It Was Ready for the Midterms, but Rogue Accounts Weren't Letting Up

Despite Twitter having a team dedicated to rooting out suspicious activity and working with the Department of Homeland Security, it still was not enough to stop false content from being spread on the site. Last week, researchers found that Twitter had 5% more false content than during the 2016 presidential election. While the correlation between false information on social media and the ballot box is difficult, if not impossible to discern, there remain significant numbers of accounts that are posing as state Republican officials and spreading false information to unknowing followers.

https://www.nytimes.com/2018/11/05/technology/twitter-fake-news-midterm-elections.html

Russian Trolls Were at It Again Before Midterms, Facebook Says

Facebook announced that in the days leading up to the midterm elections, it blocked more than 100 Facebook and Instagram accounts for being linked to the Internet Research Agency, an arm of the Russian government that has had more than a dozen members indicted for interfering in the 2016 presidential election. The agency has used social media platforms to spread false or misleading information in an effort to influence voters and election results.

https://www.nytimes.com/2018/11/07/technology/facebook-russia-midterms.html

Trump Administration Uses Misleading Video to Justify Barring CNN's Jim Acosta and Warns of More Retaliation to Reporters Who Don't Show 'Respect'

The Trump administration's attacks on the media continue. Jim Acosta, a CNN journalist, attempted to ask a question of President Trump at a press conference when a White House intern tried to take his microphone away from him and causing "brief, benign contact" between the two. He said, "Pardon me, ma'am." Press secretary Sarah Huckabee Sanders posted a 15-second video clip that had been edited to zoom in and repeat several frames, having the effect of exaggerating the contact between the two. The White House has removed Acosta's credentials for "placing his hands on a young woman," and President Trump has warned other journalists: "You have to treat the presidency with respect."

https://www.nytimes.com/2018/11/08/business/media/infowars-white-house-jim-acosta-cnn.html

https://www.nytimes.com/2018/11/09/business/media/trump-retaliation-reporters-april-ryan.html

World Leaders Echoing Trump's Words and Policies

From Nigeria to Syria to Brazil to Turkey and Europe more broadly, world leaders have adopted many of President Trump's techniques in dealing with the media and events in their countries. In Nigeria, for example, the army has justified deadly shootings on protesters when Trump said that if migrants threw rocks at members of the military, the military should consider those rocks to be rifles. In Syria, President Bashar al-Assad has said, "We are living in a fake-news era," after his government has been under attack for gassing its own citizens amidst a civil war.

https://www.nytimes.com/2018/11/04/world/americas/foreign-leaders-echo-trump.html

https://www.nytimes.com/2018/11/06/world/europe/erdogan-khashoggi-turkey.html

Facebook Admits It Was Used to Incite Violence in Myanmar

While Facebook touts itself as a tool for bringing people together in an effort to make the world a better place, it has acknowledged that the site was used to "foment division and incite offline violence" in Myanmar. While its top-level management agrees the site "can and should do more" to prevent violence as a result of use of the site, human rights activists and analysts do not see the site making an earnest effort to do so. In Myanmar, the violence resulted in not just political and social divisions but ultimately ethnic cleansing of the Muslim Rohingya minority.

https://www.nytimes.com/2018/11/06/technology/myanmar-facebook.html

Husband of Freed Pakistani Christian Woman Pleads for Asylum

From Pakistan comes a plea from a husband of a Christian woman who was acquitted after spending eight years on death row facing blasphemy charges. The plea from Ashiq Masih is to President Trump for refuge given the danger to the family's lives. The Islamist party in Pakistan blocked major roads in the country's big cities for three days and called for the Supreme Court judges that acquitted Asia Bibi to be killed. The blasphemy charges stem from accusations that Bibi made derogatory remarks about Islam when "neighbors objected to her drinking water from their glass because she was not Muslim."

https://www.nytimes.com/2018/11/04/world/asia/pakistan-asia-bibi-asylum.html

January 5, 2019

Center for Art Law Case Updates

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

Bruce Berg v. Kingdom of The Netherlands et al., No. 2:18-cv-3123 (D.S.C. filed on Nov. 11, 2018). In the wake of restitution cases brought against European museums, Bruce Berg, the heir of the Katz brothers who were Dutch partners and collectors, filed a federal suit against the Dutch government to recover paintings allegedly sold or traded under duress to representatives of the Nazi regime between mid-1940 and 1942, during the Nazi occupation of the Netherlands (https://www.forbes.com/sites/walterpavlo/2018/12/10/federal-lawsuit-seeks-to-recover-art-lost-during-nazi-occupation-of-netherlands/amp/?utm_source=Center+for+Art+Law+General+List&utm_campaign=b82c81de10-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-b82c81de10-346773625&mc_cid=b82c81de10&mc_eid=8a2eda70d8). Complaint available upon request.

Otto v. Hearst Communications, Inc., No. 1:17-cv-04712 (S.D.N.Y. Dec. 10, 2018). A case over a photo misused by several media sources to headline stories about President Trump highlights how Copyright law extends to amateur photographers, such as Jonathan Otto (https://www.law360.com/articles/1110325/-guy-with-iphone-beats-hearst-in-trump-pic-copyright-suit?nl_pk=933b2dbc-00b3-4d5d-9896-14cf322848bb&utm_source=newsletter&utm_medium=email&utm_campaign=special&utm_source=Center+for+Art+Law+General+List&utm_campaign=b82c81de10-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-b82c81de10-346773625&mc_cid=b82c81de10&mc_eid=8a2eda70d8, http://blog.digitalmedialicensing.org/?p=4678&utm_source=Center+for+Art+Law+General+List&utm_campaign=b82c81de10-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-b82c81de10-346773625&mc_cid=b82c81de10&mc_eid=8a2eda70d8). The Southern District allowed Otto to claim originality in his work, and found that Esquire.com's use of the 2017 photo of Trump at a private wedding in an article about him crashing the wedding was not fair use. Order available upon request.

His All Holiness, Bartholomew I, The Archbishop of Constantinople, Newrome, and Ecumenical Patriarch et al v. Princeton University, No. 3:18-cv-17195 (D.N.J. filed on Dec. 13, 2018). Princeton University's collection includes Byzantine Era Manuscripts that church leaders argued were stolen from a monastery in Greece during World War I (https://www.nytimes.com/2018/12/14/arts/design/princeton-eastern-orthodox-church.html?utm_source=Center+for+Art+Law+General+List&utm_campaign=b82c81de10-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-b82c81de10-346773625&mc_cid=b82c81de10&mc_eid=8a2eda70d8). Evidence put forth by the church leaders includes a Princeton-published book, which states that the manuscripts had been taken by Bulgarian guerrilla forces in 1917. Princeton, meanwhile, remains confident that its provenance research demonstrates that the manuscripts were not looted. Complaint available upon request.

Cenedella v. Metropolitan Museum of Art et al., No. 1:18-cv-01029 (S.D.N.Y. Dec. 19, 2018). "Rebel" artist Robert Cenedella's suit against five major New York museums was dismissed for insufficient evidence (https://hyperallergic.com/476464/can-an-outsider-artist-win-his-100-million-lawsuit-against-nycs-five-major-museums/?utm_source=Center+for+Art+Law+General+List&utm_campaign=b82c81de10-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-b82c81de10-346773625&mc_cid=b82c81de10&mc_eid=8a2eda70d8, https://news.artnet.com/art-world/art-bastard-suit-dismissed-1426297?utm_source=Center%20for%20Art%20Law%20General%20List&utm_campaign=b82c81de10-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-b82c81de10-346773625&mc_cid=b82c81de10&mc_eid=8a2eda70d8). Cenedalla claimed that the Metropolitan Museum of Art, the Whitney Museum of American Art, the Museum of Modern Art, the Solomon R. Guggenheim Museum, and the New Museum were conspiring to exclude him and other deserving artists from their collections and exhibition programs because the artists were not represented by major galleries. Order available upon request.

U.S. v. One Painting Entitled "Secret Departure of Ivan the Terrible Before the Oprichina", No. 1:18-cv-03015 (D.D.C. filed on Dec. 20, 2018). The U.S. Attorney filed a notice of forfeiture of an oil painting entitled "Secret Departure of Ivan the Terrible Before the Oprichina" by Russian artist Mikhail N. Panin. The piece had hung on the walls of the Connecticut home of Holocaust survivor Gabby Tracy (https://www.nbcnewyork.com/investigations/national-investigations/Painting-Stolen-From-Nazi-Occupied-Eastern-Europe-Recovered-in-DC-Area-503324421.html?amp=y&utm_source=Center+for+Art+Law+General+List&utm_campaign=b82c81de10-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-b82c81de10-346773625&mc_cid=b82c81de10&mc_eid=8a2eda70d8); it was sent for auction in 2017, before research revealed that it had been looted from the Dnepropetrovsk Art Museum in Ukraine during WWII (https://www.washingtonpost.com/local/public-safety/ivan-the-terrible-painting-sent-for-auction-had-been-looted-during-nazi-occupied-ukraine/2018/12/21/d0a43c68-0546-11e9-b5df-5d3874f1ac36_story.html?mc_cid=b82c81de10&mc_eid=8a2eda70d8&noredirect=on&utm_campaign=b82c81de10-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_source=Center%20for%20Art%20Law%20General%20List&utm_term=.6aaff6739eb2). The government seized the painting right before the auction, which was not contested by the Tracys. The notice filed by the U.S. Attorney ensures that no one else can claim ownership before the FBI returns the painting to Ukraine. Complaint available here: https://www.courthousenews.com/wp-content/uploads/2018/12/Forfeiture-Complaint.pdf?utm_source=Center+for+Art+Law+General+List&utm_campaign=b82c81de10-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-b82c81de10-346773625&mc_cid=b82c81de10&mc_eid=8a2eda70d8.

Viktor v. Top Dawg Entertainment LLC, No. 1:18-cv-01554 (S.D.N.Y. Dec. 21, 2018). Artist Lina Iris Viktor claimed rapper Kendrick Lamar appropriated her artwork in a video clip for the "Black Panther" movie soundtrack. The parties announced that they reached a settlement (https://www.theartnewspaper.com/news/artist-lina-iris-viktor-and-rapper-kendrick-lamar-resolve-black-panther-legal-battle?utm_source=Center+for+Art+Law+General+List&utm_campaign=b82c81de10-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-b82c81de10-346773625&mc_cid=b82c81de10&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.

February 4, 2019

Center for Art Law Case Law Updates

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

Schmitt v. Artforum Int'l Magazine, Inc., 2018 Slip Op 33345(U) (N.Y. Sup. Dec. 20, 2018). The New York Supreme Court has dismissed Amanda Schmitt's retaliation claim (https://www.google.com/url?q=https://itsartlaw.us2.list-manage.com/track/click?u%3D78692bfa901c588ea1fe5e801%26id%3D5b9147accf%26e%3D8a2eda70d8&source=gmail&ust=1549377238751000&usg=AFQjCNGbFmbVpMIT_XQGYofsZw1mWDCxSw) against her former employer and publisher of Artforum Magazine, Knight Landesman. Schmitt claimed that Landesman had harassed her and other women while working at the magazine. However, the statute of limitations on workplace sexual misconduct had expired and Schmitt proceeded under a retaliation claim. Judge Nervo nevertheless dismissed the case, finding that the five-year gap between Schmitt's employment at Artforum to the confrontation in question had removed the requisite nexus to sustain her claim. https://law.justia.com/cases/new-york/other-courts/2018/2018-ny-slip-op-33345-u.html?utm_source=Center+for+Art+Law+General+List&utm_campaign=5b56733dfc-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-5b56733dfc-346773625

De Csepel, et al. v. Republic of Hungary, et al., No. 17-1165 (U.S. Jan. 7, 2019). On January 7, 2019, the Supreme Court of the United States denied (https://www.supremecourt.gov/DocketPDF/17/17-1165/74114/20181204152445106_17-1165%20De%20Csepel.pdf?utm_source=Center+for+Art+Law+General+List&utm_campaign=4a99c9828a-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-4a99c9828a-&mc_cid=4a99c9828a&mc_eid=%5bUNIQID%5d&utm_source=Center+for+Art+Law+General+List&utm_campaign=5b56733dfc-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-5b56733dfc-346773625&mc_cid=5b56733dfc&mc_eid=8a2eda70d8) the Herzog family's petition for certiorari, which proposed that the Supreme Court examines questions of jurisdiction (http://www.dailyjournal.net/2019/01/07/us-supreme-court-hungary-art-lawsuit/?utm_source=Center+for+Art+Law+General+List&utm_campaign=4a99c9828a-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-4a99c9828a-&mc_cid=4a99c9828a&mc_eid=%5bUNIQID%5d&utm_source=Center+for+Art+Law+General+List&utm_campaign=5b56733dfc-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-5b56733dfc-346773625&mc_cid=5b56733dfc&mc_eid=8a2eda70d8). The Herzogs are heirs of Baron Mor Lipot Herzog, a Jewish art collector, whose artwork was stolen during WWII. The heirs have been unsuccessfully attempting to reclaim the works from Hungary.

Lehman Maupin v. Yoo, No. 1:18-cv-11126 (S.D.N.Y. filed Nov. 29, 2018). The Lehmann Maupin Gallery filed suit against its former director, Bona Yoo, who jumped ship to join Lévy Gorvy after giving her employer one day's notice. The complaint seeks to "prevent Yoo from gaining an unfair competitive advantage and recover damages it says it incurred when Yoo corrupted or deleted confidential information." The updated complaint is available upon request.

U.S. v. Mary Boone, No. 1:18-cr-00634 (S.D.N.Y. filed May 9, 2018). Mary Boone, the New-York based art dealer who pleaded guilty in September to two counts of tax fraud, is now seeking leniency because of "childhood trauma". The prosecution nonetheless seeks a three-year-sentence (https://news.artnet.com/art-world/mary-boone-tax-fraud-trial-1438561?utm_source=Center%20for%20Art%20Law%20General%20List&utm_campaign=5b56733dfc-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-5b56733dfc-346773625&mc_cid=5b56733dfc&mc_eid=8a2eda70d8). Sentencing was initially scheduled for January 18th, but has been postponed to February 14, 2019.

Dawson v. Stoko Gallery LLC, No. 1:2019cv00824 (S.D.N.Y. filed Jan. 28, 2019); Dawson v. Sperone Westwater Gallery LLC, No. 1:2019cv00825 (S.D.N.Y. filed Jan. 28, 2019); Dawson v. Pace Editions, No. 1:2019cv00681 (S.D.N.Y. filed Jan. 23, 2019). Deshawn Dawson filed more than 23 lawsuits before the Southern District of New York against various galleries in the last month (https://hyperallergic.com/482319/more-than-75-new-york-galleries-hit-with-lawsuits-alleging-ada-violations/?fbclid=IwAR0jIiYgOYMQ169rJJ089OhVhRvnM70dr4r8_cGG3nutW2IKY1EdQ2WoGOI&utm_source=Center+for+Art+Law+General+List&utm_campaign=4a99c9828a-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-4a99c9828a-&mc_cid=4a99c9828a&mc_eid=%5bUNIQID%5d&utm_source=Center+for+Art+Law+General+List&utm_campaign=5b56733dfc-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-5b56733dfc-346773625&mc_cid=5b56733dfc&mc_eid=8a2eda70d8), alleging that they have violated the Americans with Disabilities Act by failing to make their websites accessible to blind or visually impaired people. Apparently, these websites lack a code that would enable screen-reading software in browsers to describe images via audio translation.

*Erratum (newsletter June 2018): Shagalov v. Edelman, 6449N 655576/17 (N.Y. App. Div. May 3, 2018). The New York State Appellate Division affirmed a lower court order granting a preliminary injunction to enjoin defendants Asher Edelman et al. from "transporting, transferring, disposing, alienating, pledging, assigning, or otherwise encumbering or moving Keith Haring's 'Untitled (March 5, 1984)' and Frank Stella's 'Guifa E La Berretta Rossa' and 'La Scienza della Fiacca.'" The plaintiffs, represented by Barton, LLP, successfully demonstrated that they would be "irreparably harmed absent the requested preliminary injunction" and met their burden of "establishing a reasonable probability of success on the merits of their claim that defendants violated their UCC Article 9 rights." (https://www.law.cornell.edu/ucc/9?mc_cid=1828a75f39&mc_eid=88512bac9d) The decision is available here https://www.courtlistener.com/opinion/4494991/shagalov-v-edelman/?mc_cid=1828a75f39&mc_eid=88512bac9d.

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.

March 4, 2019

Center For Art Law Case Law Updates

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

Bah v. Simpson, II et al., No. 2:17-cv-05550 (C.D. Cal. filed July 27, 2017). Art collector Abdoulaye Bah is suing the Houston-based Simpson Gallery, its two namesakes, and Public Storage. The complaint alleges that part of Bah's collection was stored in a unit at Public Storage in Houston. https://us2.campaign-archive.com/?e=8a2eda70d8&u=78692bfa901c588ea1fe5e801&id=9925c84dab

Lehmann Maupin v. Yoo, No. 1:18-cv-11126 (S.D.N.Y. filed Nov. 29, 2018). Last month, Bona Yoo was sued by her former employer, Lehmann Maupin Gallery, for stealing trade secrets when she took a job with the competing gallery Lévy Gorvy. Now, Bona Yoo has filed a response, where she claims her former employers filed suit out of spite (https://news.artnet.com/art-world/former-lehmann-maupin-gallery-director-bona-yoo-responds-to-lawsuit-hed-tkkt-1462519?utm_source=Center%20for%20Art%20Law%20General%20List&utm_campaign=9925c84dab-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-9925c84dab-346773625&mc_cid=9925c84dab&mc_eid=8a2eda70d8).

Kush et al v. Grande et al., No. 2:2019cv00186 (D. Nev. filed Jan. 31, 2019). Artist Vladimir Kush is suing singer Arianna Grande for copyright infringement for scenes in her music video "God is a Woman". (https://www.theartnewspaper.com/news/las-vegas-based-artist-claims-that-ariana-grande-plagiarised-his-work?utm_source=Center+for+Art+Law+General+List&utm_campaign=9925c84dab-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-9925c84dab-346773625&mc_cid=9925c84dab&mc_eid=8a2eda70d8) The case centers around the representation of a woman dancing in the wick of a candle. Kush claims that Grande, her record label, and others involved in the music video copied his expression of that concept.

The Art and Antique Dealers League of Am., Inc. et al v. Basil Seggos, No. 1:2018cv02504 (S.D.N.Y. filed Feb. 1, 2019). The Art and Antiques Dealers League of America brought an action (https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2018cv02504/490523/48/?utm_source=Center+for+Art+Law+General+List&utm_campaign=9925c84dab-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-9925c84dab-346773625) against the Commissioner of the New York State Department of Environmental Conservation. https://us2.campaign-archive.com/?e=8a2eda70d8&u=78692bfa901c588ea1fe5e801&id=9925c84dab

Patrick Hoelck v. Billionaire Boulevard, Inc. et al., No. 2:2019cv00939 (C.D. Cal. filed Feb. 7, 2019). Photographer Patrick Hoelck is suing a number of companies alleging that they reproduced T-shirts that contained images substantially similar to his portrait of rapper Ice Cube. Complaint available upon request.

Vismanos et al., v. Philippe Hoerle-Guggenheim, No. 2:2019cv01115 (C.D. Cal. filed Feb. 13, 2019). Art dealer Philippe Hoerle-Guggenheim is being sued for fraud after accepting payment for paintings that were never received (https://news.artnet.com/art-world/philippe-hoerle-guggenheim-sued-over-art-scheme-1469824?utm_content=from_artnetnews&utm_source=Center%20for%20Art%20Law%20General%20List&utm_medium=email&utm_campaign=9925c84dab-RSS_EMAIL_CAMPAIGN&utm_term=0_022731d685-9925c84dab-346773625&mc_cid=9925c84dab&mc_eid=8a2eda70d8). The plaintiffs, collectors Liza Vismanos and Randy Rosen, purchased three paintings, including a Renoir, and claim that Hoerle-Guggenheim has repaid a portion of the funds but has been evasive about the artwork and further payments.

State St. Glob. Advisors Tr. Co. v. Visbal, No. 650981 (Sup. Ct. N.Y. filed Feb. 14, 2019). The investment firm State Street Global made headlines two years ago when it commissioned artist Kristen Visbal to create the 'Fearless Girl' statue located in Bowling Green (https://news.artnet.com/art-world/firm-suing-fearless-girl-artist-for-replicas-1468270?utm_content=from_artnetnews&utm_source=Center%20for%20Art%20Law%20General%20List&utm_medium=email&utm_campaign=9925c84dab-RSS_EMAIL_CAMPAIGN&utm_term=0_022731d685-9925c84dab-346773625&mc_cid=9925c84dab&mc_eid=8a2eda70d8). After discovering that Visbal created replicas for display, State Street Global filed a trademark infringement action against the artist (https://www.documentcloud.org/documents/5745208-State-Street-Global-Advisors-vs-Kristen-Visbal.html?utm_source=Center+for+Art+Law+General+List&utm_campaign=9925c84dab-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-9925c84dab-346773625&mc_cid=9925c84dab&mc_eid=8a2eda70d8#document/p5).

U.S. v. Boone, 18-cr-634 (S.D.N.Y Feb. 14, 2019). New York-based art dealer Mary Boone has been sentenced to 30 months in jail for tax evasion (https://news.artnet.com/art-world/mary-boone-is-sentenced-1464904?utm_source=Center%20for%20Art%20Law%20General%20List&utm_campaign=9925c84dab-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-9925c84dab-346773625&mc_cid=9925c84dab&mc_eid=8a2eda70d8). Supporters of Boone suggested house arrest. However, the court determined, in line with the government's sentencing memorandum (https://www.courthousenews.com/wp-content/uploads/2019/02/boone-memo-govt.pdf?utm_source=Center+for+Art+Law+General+List&utm_campaign=9925c84dab-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-9925c84dab-346773625&mc_cid=9925c84dab&mc_eid=8a2eda70d8), that Boone should serve time for her actions. Both of Boone's galleries will be closing, with their final exhibitions ending on April 27th (http://www.artnews.com/2019/02/23/mary-boone-gallery-will-close/?utm_source=Center+for+Art+Law+General+List&utm_campaign=9925c84dab-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-9925c84dab-346773625&mc_cid=9925c84dab&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.

About Arts

This page contains an archive of all entries posted to The Entertainment, Arts and Sports Law Blog in the Arts category. They are listed from oldest to newest.

ADR/Litigation is the previous category.

Barry Skidelsky is the next category.

Many more can be found on the main index page or by looking through the archives.