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October 18, 2009

Brandeis University's Rose Art Museum Litigation Update

Brandeis University's motion to dismiss has been denied by the court in the lawsuit filed by three overseers of the Rose Art Museum. The plaintiffs want to prevent the museum from closing and selling its art, in order to raise money to support Brandeis' financial situation. Brandeis stated in court that it will not sell any art that had been donated by the plaintiffs, Meryl Tose, Jonathan Lee and Lois Foster. It also said that it would give the MA attorney general an opportunity for review if it wants to sell art from other donors.

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.

November 3, 2009

Resolution Institute at New York County Lawyers' Association on Nov 20

Course begins Friday, November 20, 2009, 8:30 AM - 5:30 PM

Additional Date: Thursday, November 19, 2009, 5:30 - 7:30 PM

Member Price: $200
Non-Member Attorney Price: $250
Location: 14 Vesey Street, 2nd Floor Auditorium
9 MCLE Credits: 4 Ethics, 1 Skills, 4 Professional Practice; Transitional and Non-transitional

Course Description:

Join us for a full day event featuring unparalled panels of experts from the bench, bar, museums, art galleries, auction houses, trade publications and on-line media, appraisers and insurance companies.

Agenda* (Panels are subject to change)
Panel I: Holocaust Restitution Claims: Courtrooms, ADR or a U.S. Restitution Commission?
Panel II: Proving Provenance of Artworks: Discovery and Investigative Tools
Panel III: Installation Art: Construction, Control and Caretaking in a Litigious World
Panel IV: The Artist's Estate and Foundation: Problems and Perspectives
Panel V: Biennials and Art Fairs: Law and Practice
Panel VI: Expert Appraisals: Practice and Ethics
Panel VII: Deviations from Trust Indentures, Cy Pres and Deaccessioning

SPECIAL COCKTAIL RECEPTION on Thursday Evening, November 19
Presentation of EMIPS Award to: Ambassabor Stuart E. Eizenstat
Gagosian Gallery, 980 Madison Ave., at 77th Street

5:30 - 7:30 PM
RECEPTION SPONSOR: Gagosian Gallery
Award Chairs: Olivera Medenica; Carol Steinberg and Nancy Wolff

Faculty in formation: Christopher Alfieri, Christovich & Kearney, LLP, Director, Biennial, Inc./Prospect 1&2 New Orleans; Helen Allen, Pulse Art Fair, Affordable Art Fair; Hon. Phyllis Beck, Barnes Foundation; Judith Bresler, Withersworldwide; Hon. Nicholas Garaufis, U.S. Dist. Ct., EDNY; Hon. Arthur Gonzalez, U.S. Bankruptcy Ct., SDNY; Hon. Barbara Jaffe, Civil Court, NYC; Amb. J. Christian Kennedy, Special Envoy for Holocaust Issues, U.S. Dept. of State; Jules Kroll, Jemkroll Holdings LLC; Prof. Jennifer Kreder, Northern Kentucky University; Ralph Lerner, Withersworldwide; Christopher Marinello, The Art Loss Register; Judith Prowda, Professor, Sotheby’s Institute; Hon. Reena Raggi, U.S. Ct. of App., 2d Cir.; Donn Zaretsky, Deaccessioning Art Law Blog; Hon. Richard Wesley, US Ct. of Appeals, 2d Cir.

Program Co-Chairs: Hon Stephen G. Crane, JAMS; Raymond J. Dowd, Dunnington Bartholow & Miller LLP

Keynote Speaker: Assemblymember Daniel J. O'Donnell, 69th Assembly District; Standing Member, Arts and Tourism Committee

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.

April 23, 2010

Judge Chin Confirmed to Second Circuit

In a unanimous 98-0 vote, Judge Denny Chin was confirmed to a seat on the Second Circuit. We will have to wait to see what this will mean for the Google Book Project/Authors Guild proposed settlement. What we do know is that the class action suit brought against Google by photographers and visual artists will be reassigned to someone else.

Elissa D. Hecker

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.

October 26, 2010

Morning Lecture Series: Breakfast and Art on Thursday, November 4


One of the legal community's fastest growing fields is art law. The New York State Bar Association's Entertainment, Arts & Sports Law Section invites you to an introductory lecture about this developing area of law. Leila Amineddoleh will be presenting a 1-hour overview about art law on Thursday, November 4th, from 8:30am-9:30 am at Sotheby's Institute of Art (570 Lexington Ave).

Join us for breakfast, networking opportunities, and a lecture about art law. The event is $10 for non-NYSBA EASL members, $5 for NYSBA EASL members, and free for students. Please join us for this fascinating lecture presented by the Lawyers-in-Transition Committee. Please RSVP to Leila.Alexandra@gmail.com.

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.



March 22, 2011

Fair Use Decision

By Monica Pa

On March 18, 2011, the Southern District of New York (Batts, J.), 08 Civ. 11327, issued a decision in the closely-watched copyright infringement case involving the well-known "appropriation" artist Richard Prince. In a surprising decision, the court held that images created by Price infringed the plaintiff Patrick Cariou's copyright in photographs of Rastafarians in a series of collages and paintings created by Prince and sold by his art dealer, co-defendant the Gagosian Gallery.

In 2000, Patrick Cariou published Yes, Rasta, a book of photographs that was released by PowerHouse Books. The book featured photographs of portraits of Rastafarian individuals in and landscapes of Jamaica.

Richard Prince is a well known artist who has shown at numerous museums and other institutions, including a solo show at the Guggenheim Museum in New York City. He is represented by the Gagosian Gallery, Inc., which is owned by Lawrence Gagosian. Prince admits that he used 41 images from the plaintiff's book as artistic elements in a series of paintings titled "Canal Zone", which was first exhibited in St. Barts and then in a 2008 exhibition at the Gagosian Gallery in New York City. The work included images taken from Yes, Rasta, some in their entirety, some where only portions were used, some were collaged, enlarged, cropped, and/or painted-over. The "Canal Zone" included photos and works from other sources as well.

The defendants argued that Prince's use of the plaintiff's photographs was a permissible fair use, which allowed him to use copyrighted materials for purposes like commentary, criticism, news reporting, and scholarship, as set forth in Section 107 of the Copyright Act.

The court, however, held that Prince's use of plaintiff's photographs in these collage works was not fair use. It reasoned that there is no "per se" exemption for appropriation art; instead, for the "fair use" defense to be available, there must be "a focus on the original works or their historical context[.]" Order at 16. Yet the court did not cite to any case law support for this proposition; instead, this rule appears to impose a wholly new element for a fair use defense. The court argued that, based on its reading of prior precedent, those cases all "impose[] a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works." Id. It concluded that "Prince's paintings are transformative only to the extent that they comment on the Photos; to the extent they merely recast, transform, or adapt the Photos, Prince's Paintings are instead infringing derivative works." Id. at 18.

The decision appears to contravene the Second Circuit decision in Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), which held that the fair use defense was available to the "appropriation" artist Jeff Koons who had used the plaintiff's photograph in his collage painting. In Blanch, the court held that "[w]hen, as here, the copyrighted work is used as 'raw material,' in the furtherance of distinct creative or communicative objectives, the use is transformative." Id. at 254. Judge Batts, however, distinguished Richard Prince's collage paintings from Jeff Koon's paintings by holding that Koon's work was transformative; specifically, the purpose of Koons' paintings, unlike Prince's paintings, was "to comment on the role such advertisements [like the plaintiff's photographs] play in our culture and on the attitudes the original and other advertisements like it promote." Order at 17.

The district court's recent decision in Prince should certainly concern artists and galleries who had previously relied on Koons in the creation, distribution, and sale of "appropriation" art. The decision appears to add a new and poorly-defined element to the "fair use" defense (e.g., the necessity that works actually "at their core focus on the original works or their historical context"). Finally, in reading this decision, it is unclear whether and to what extent the attorneys for Prince relied on Blanch, which should have served as a playbook for their litigation defense. Certainly, it would not have been difficult to argue that, like Koons, Prince was also commenting on plaintiff's allegedly appropriated image. Indeed, it is surprising that Prince's attorneys thought to argue initially that there was no copyright in the plaintiff's photographs whatsoever, a position that is against well-settled law that has, for decades, held that photographs are worthy of copyright protection. Order at 10.

The decision is available at: http://www.scribd.com/doc/51219154/Cariou-v-Prince-S-D-N-Y-Mar-18-2011.

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.

September 21, 2011

Richard Prince's Appeal Allowed to Go Forward

By Judith B. Bass

The Second Circuit Court of Appeals last week refused to dismiss appropriation artist Richard Prince's appeal of the district court ruling that found that Prince had violated the copyright of photographer Patrick Cariou in using Cariou's photographs in a series of collages and paintings known as "Canal Zone."

In March, Judge Deborah A. Batts of the United States District Court for the Southern District of New York found that Prince's use of 41 of Cariou's photographs was not allowable as a fair use. Specifically, she held that Prince's use was not transformative in that it did not comment on the original works. The court then ordered all unsold copies of Prince's "Canal Zone" paintings to be impounded or destroyed, as the plaintiff determined. The defendants were also required to notify current or future owners of the paintings that they could not "lawfully be displayed."

In refusing to grant Cariou's motion to dismiss Prince's appeal, the Second Circuit stated that the questions raised by the case remained "a continuing controversy capable of redress by this Court." See http://artsbeat.blogs.nytimes.com/2011/09/15/court-allows-richard-prince-to-appeal-copyright-decision/.

March 30, 2012

Gagosian Gallery Trials and Tribulations

By Gergana Miteva

Gagosian Gallery e-mails reveal the "behind the scenes" of the litigated sale of Girl in Mirror. (http://www.nytimes.com/2012/03/27/arts/design/revealing-e-mails-by-gagosian-gallery-in-lichtenstein-suit.html)

Recently, the embattled Gagosian Gallery suffered another legal setback. New e-mails have come to light, suggesting that in his negotiations to sell a painting, Larry Gagosian, the owner of the Gagosian Gallery, ardently solicited a "low ball" bid from a buyer. In January, Jan Cowles, a prominent New York art collector, filed a lawsuit against Gagosian and his gallery for conversion, fraud, breach of fiduciary duty, and unjust enrichment over the sale of a painting from her collection. The piece in question is Roy Lichtenstein's 1964 Girl in Mirror, which is one of a series of eight pieces in epoxy enamel on metal. In her complaint, Mrs. Cowles alleged that in the fall of 2008, Mr. Gagosian struck a deal with her son, without her knowledge or consent, to sell the painting on consignment for $3 million and retain half a million dollars as commission. The plaintiff maintains that the piece's market value at the time had been $4.5 million. Mrs. Cowles further alleged that her son, who had been an art dealer for many years, had no authority to sell the painting and acted without her knowledge only because he was in a "desperate financial condition." (See Jan Cowles' complaint, available at (http://www.courthousenews.com/2012/01/20/Gagosian.pdf).

Mr. Gagosian eventually sold the piece for $2 million and retained a $1 million commission. The plaintiff claimed that Mr. Gagosian induced her son to accept the "below market sales price" by falsely representing that the painting was badly damaged. She argued that if there had been any damage to the work, Gagosian Gallery's staff would have documented it before accepting the painting on consignment, which is a customary practice in the industry to avoid subsequent disputes about the value and condition of the artwork. Mrs. Cowles further implies that at the time of the sale of the painting, the Gagosian Gallery had a second piece from the Girl in Mirror series that may have been damaged. Her theory is that Gagosian sold the damaged painting for $2 million while her painting may still be in Gagosian's possession. If Mrs. Cowles is able to back up this admittedly cinematic hypothesis, she would provide a plausible explanation of the sold painting's condition report, which describes the damage as "numerous dark inclusions and small pits in the yellow field," "three areas of discoloration," "altered texture" and "noticeable prior restoration."

As The New York Times reported, the latest papers filed by Mrs. Cowles' attorney reveal the e-mail negotiations between Mr. Gagosian and the art collector who eventually bought the painting. Apparently, Gagosian represented that the seller of the work was "in terrible straits and needs cash" and invited the art dealer to make "a cruel and offensive offer" for the painting. This new evidence, coupled with Mrs. Cowles' theory that the piece had been swapped with a damaged one, may account for why it was sold for less than half of its claimed market value at the time. (Randy Kennedy, Frank E-Mails Reveal Negotiations at Art Gallery, N.Y. TIMES, March 26, 2012, http://www.nytimes.com/2012/03/27/arts/design/revealing-e-mails-by-gagosian-gallery-in-lichtenstein-suit.html)

This is not the first time Mr. Gagosian and his gallery have been sued over the sale of a painting from Mrs. Cowles collection. Last year, Mrs. Cowles filed a lawsuit in Federal court for the gallery's sale of The Innocent Eye Test by Mark Tansey, another piece her son had put up for sale. Apparently, she had donated 31 percent of her interest in the painting to the Metropolitan Museum of Art, where the painting was on display for many years, with the intention of eventually transferring her entire interest in the work to the museum. Mrs. Cowles sued Gagosian for the return of the painting and the British collector who purchased it sued him for fraud. The case was settled for $4.4 million after the piece was returned to Mrs. Cowles, who then donated it to the museum. This prior implicit victory for Mrs. Cowles adds more ammunition to the merits of her case in the current dispute with Gagosian. (Randy Kennedy, Collector Sues Gagosian Gallery for Selling Him a Painting Partially Owned by Met, N.Y. TIMES, March 11, 2011, http://artsbeat.blogs.nytimes.com/2011/03/11/collector-sues-gagogosian-gallery-for-selling-him-a-painting-partially-owned-by-met/).

Mrs. Cowles is seeking $4.5 million in compensatory damages and $10 million in punitive damages for the Girl in Mirror sale.

May 18, 2012

Is Manga a Crime? Non-photographic Images, Child Pornography and Freedom of Expression


Wednesday, May 23, 2012

- Location -
Sotheby's Institute of Art
570 Lexington Avenue,
6th Floor
New York, NY
518-487-5674

6:00PM-7:30PM

Sponsored by the Digital Media & Fine Arts Committees of the New York State Bar Association Entertainment, Arts, & Sports Law Section

Speakers
Amy Adler, Professor of Law, New York University School of Law
Michael Delohery, Chief, High Technology Crime Bureau, Westchester County DA's Office
Charles Brownstein, Executive Director, Comic Book Legal Defense Fund

Program Summary:
In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the US Supreme Court deemed certain parts of the Child Pornography Prevention Act of 1996 (CPPA) unconstitutional as it prohibited lawful speech (images that do not involve minors, including drawings). Following this decision, the PROTECT Act of 2003 was passed.

Individuals in the United States have been charged and sentenced under the PROTECT Act because of their possession of non-photographic images deemed to be child pornography. In US v. Handley, 564 F. Supp. 2d 996 (S.D. Iowa 2008), Judge Gritzner deemed certain sections of the PROTECT Act unconstitutional (18 U.S.C.S. § 1466A(a)(2) and (b)(2)) but allowed the sections that required the application of the Miller test for obscenity (18 U.S.C.S. 2252A), Miller v. California, 413 U.S. 15 (1973). Handley entered into a guilty plea bargain so a jury never got to determine whether or not the manga in his collection was obscene.

The current law raises concerns for creators, publishers, and collectors of various forms of entertainment (including, but not limited to, comics/manga, video games, and fine art), and this panel will explore the legal issues facing these groups in light of the cases and laws mentioned above. The panel will also address international concerns with transporting these images across borders, specifically the Canadian border.

1.5 MCLE Credits in Professional Practice
www.nysba.org/EASLFreedomofExpression

August 12, 2013

Dereck Seltzer v. Green Day, Inc. et al

By Barry Werbin

The Ninth Circuit issued its significant opinion on Aug. 7th in Dereck Seltzer v. Green Day, Inc. et al., affirming on fair use grounds the District Court's grant of summary judgment to the rock band Green Day and its concert tour video producer and photographer, who had created a four-minute video that included an image of the plaintiff's copyright-protected "Scream-Icon" poster affixed to a wall on Sunset Boulevard. The still image of the poster was taken by the photographer and set designer, Roger Staub, initially for his personal use, who also was a co-defendant and made the video. The video added graphic elements to the plaintiff's work, and was played as a backdrop for one of Green Day's songs ("East Jesus Nowhere") on its 2009-10 national concert tour, including at some 70 concerts and the MTV Video Music Awards.

The Court recognized this was a "close and difficult case," but found that this was a fair use and was [no surprise] "transformative." Yet the Court to its credit delves into the propriety and scope of "transformative use," including as it has been applied by other courts and discussed in various respected law review articles and commentaries.

From the case syllabus: "First, the purpose and character of the use was transformative because the video altered the expressive content or message of the illustration, and the use was not overly commercial. Second, the illustration was a creative work, but its nature included its status as a widely disseminated work of street art. Third, the defendants copied most of the illustration, but it was not meaningfully divisible. Fourth, the video backdrop did not affect the value of the illustration."

The court's description of the video and how the image was "modified" is important and is analogous to Cariou v. Prince (which is referenced in the opinion):

"The video depicts a brick alley way covered in graffiti. As "East Jesus Nowhere" is performed, several days pass at an accelerated pace and graffiti artists come and go, adding new art, posters, and tags to the brick alleyway. The graffiti includes at least three images of Jesus Christ, which are defaced over the course of the video. Throughout the video, the center of the frame is dominated by an unchanging, but modified, Scream Icon. Staub used the photograph he had taken at Sunset and Gardner, cut out the image of Scream Icon and modified it by adding a large red "spray-painted" cross over the middle of the screaming face. He also changed the contrast and color and added black streaks running down the right side of the face."

With respect to the first Section 107 factor, the Court cited to the Supreme Court's statement in the Campbell case (1994) that the "central purpose" of this factor is to see "whether and to what extent the new work is transformative." However, the Court noted (citing to the dissent in Cariou) that "whether a work is transformative is a often highly contentious topic." The Court described the legal body of transformative use cases and commentaries as "treacherous waters." In particular, it focuses on the creation of the doctrine in Campbell based on Judge Leval's 1990 Harvard Law Review article, and found that under that analysis, the use of the poster here was transformative because Scream Icon is only one component of "what is essentially a street-art focused music video about religion and especially about Christianity." While the "message and meaning" of Scream Icon "is debatable," it "clearly says nothing about religion."

The Court also noted that "Although the law in this area is splintered ... our conclusion on transformation is generally in line with other appellate authority on transformative use. In the typical "non-transformative" case, the use is one which makes no alteration to the expressive content or message of the original work.... In contrast, an allegedly infringing work is typically viewed as transformative as long as new expressive content or message is apparent. This is so even where--as here--the allegedly infringing work makes few physical changes to the original or fails to comment on the original." [Citing Cariou v. Prince]

Last, under the first factor, the Court found that "Green Day's use of Scream Icon was only incidentally commercial; the band never used it to market the concert, CDs, or merchandise. Under these circumstances, the first fair use factor weighs in Green Day's favor."

With respect to the second factor, while "Scream Icon is a creative work, meriting strong protection," at the same time the Court considered as a mitigating factor that Scream Icon also had been widely published initially by Seltzer himself as street art, including on the Internet, which "weighs only slightly in Seltzer's favor."

On the third factor, because it is a single image, "Scream Icon is not meaningfully divisible..." Thus, "this court has acknowledged that this factor will not weigh against an alleged infringer, even when he copies the whole work, if he takes no more than is necessary for his intended use."

Finally, on the fourth potential market harm factor, the Court noted that "Where the allegedly infringing use does not substitute for the original and serves a 'different market function,' such factor weighs in favor of fair use." This factor also weighed in favor of fair use because: "The original, created six years before Green Day's use, was primarily intended as street art. Green Day's allegedly infringing use, on the other hand, was never placed on merchandise, albums, or promotional material and was used for only one song in the middle of a three hour touring show. In this context, there is no reasonable argument that conduct of the sort engaged in by Green Day is a substitute for the primary market for Seltzer's art."

The Court did reverse the District Court's award of legal fees against Seltzer, finding that his position not "objectively unreasonable" especially in this case: "This was a close and difficult case. We concluded that Seltzer's work was transformed by Green Day's use. But that transformation was far from obvious given Green Day's only slight alterations to the original. Furthermore, of the remaining three factors, one was in Seltzer's favor, one was in Green Day's favor, and one was neutral. There is simply no reason to believe that Seltzer "should have known from the outset that [his] chances of success in this case were slim to none."

A copy of the decision is attached.Green Day decision.pdf

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

December 21, 2013

Daniel v. Goliath: Photographer Daniel Morel Awarded $1.2 Million for Copyright Infringement from Photo Agency Giants AFP and Getty

By Barry Werbin and Laura Tam, Herrick, Feinstein LLP

On November 22, 2013, a federal jury ordered Agence France-Presse (AFP) and Getty Images (Getty) to pay a whopping $1.2 million to Daniel Morel (Morel), a freelance photojournalist, for their unauthorized use and distribution of eight photographs Morel had posted to Twitter. The jury determined that AFP and Getty had willfully violated the Copyright Act and the Digital Millennium Copyright Act (DMCA) when they widely disseminated Morel's photographs of the devastation of the 2010 Haiti earthquake without his permission. Morel asserted that AFP and Getty had infringed on a number of exclusive rights granted by 17 U.S.C. § 106, including the rights of reproduction, public display and distribution.

On January, 12, 2010, hours after a devastating earthquake struck Haiti, Morel took photographs of the aftermath and posted them to Twitter through a TwitPic account. The photographs were reposted by Lisandra Suero (Suero) and were picked up by the AFP and uploaded to its database. The images, however, were wrongly credited to Suero. The AFP then transmitted the photos to Getty, since the stock agencies had a license agreement with reciprocal rights to license each other's images. From there, the photographs were published on Getty's website, and numerous clients, including The Washington Post, licensed and published the images. Soon thereafter, the agencies realized their mistake, issuing kill notices for Morel's photographs and alerting subscribers of the copyright issue. While Morel's images from the AFP's database were removed after the issuance of the kill notice, Morel's photographs that had been attributed to Suero remained on Getty's website until February 2, 2010, when they were finally removed.

The AFP initiated legal action by filing a lawsuit against Morel in March 2010, seeking a declaration that it had not infringed Morel's copyrights in the images. In response, Morel filed counterclaims against AFP, Getty and The Washington Post for willful infringement.

On January 14, 2013, the Southern District of New York granted Morel's motion for summary judgment, finding that AFP, Getty and The Washington Post were liable for direct copyright infringement. The Washington Post later settled with Morel for an undisclosed amount. The court rejected the stock agencies' affirmative defenses, including that (1) by posting the photos on Twitter, Morel had granted AFP a license to use his images, (2) Getty was entitled to the benefit of the DMCA safe harbor provision, and (3) Getty had not engaged in volitional conduct to impose liability.

First, the court determined that the Terms of Service of Twitter or TwitPic did not grant the AFP a license to sell and distribute Morel's photographs. Pointing to specific language in the Terms of Service, which provided that "[y]ou retain your rights to any Content you submit, post or display" and "what's yours is yours -- you own your own content," the court determined that the AFP was not a third party beneficiary to the Terms of Service and therefore not insulated from liability.

Second, the court rejected Getty's argument that it was protected by 17 U.S.C. § 512(c)(1), the safe harbor provision of the DMCA for service providers. The court noted that "an entity that is directly licensing copyrighted material online is not a 'service provider.'"

Finally, the court also rejected Getty's argument that it had not taken affirmative acts to violate Morel's copyrights. The court stated that there were genuine disputes of fact on this issue, since a jury could infer that Getty took volitional acts to distribute Morel's photographs in violation of his copyrights, including entering into a license agreement with AFP, setting a price for the photographs, and maintaining the website on which the images were displayed. After the court granted summary judgment to Morel, the case proceeded to trial on the sole determination of damages.

The jury awarded Morel $1.2 million, $150,000 for each of the eight photographs that were infringed, which is the maximum amount of statutory damages available under 17 U.S.C. § 504(c)(2). The jury also determined that AFP and Getty had violated the DMCA a total of 16 times under 17 U.S.C. §§ 1202(a) and 1202(b), and awarded Morel $20,000 in total for the 16 violations; however, that DMCA award is under dispute because the DMCA's statutory damages provisions provide for a minimum award of $2,500 per violation. Morel's attorneys thus argued in a letter to the court in early December 2013 that the minimum DMCA statutory award for Morel must be $40,000.

The landmark decision is one of the first cases to address the commercial use of content posted by individuals through social media, but it certainly won't be the last. A copy of the January 14, 2013 decision is available here: http://www.scribd.com/doc/120501947/AFP-v-Morel-10-Civ-02730-AJN-S-D-N-Y-Jan-14-2013.

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.

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.

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 16, 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=1f0b40784d-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-1f0b40784d-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=1f0b40784d-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-1f0b40784d-346773625

• [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=1f0b40784d-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-1f0b40784d-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 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/

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 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.

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.

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 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.

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

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

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.

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.

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.

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 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 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.

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.

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 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 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

About Fine Arts

This page contains an archive of all entries posted to The Entertainment, Arts and Sports Law Blog in the Fine Arts category. They are listed from oldest to newest.

Fashion is the previous category.

Literary Works is the next category.

Many more can be found on the main index page or by looking through the archives.