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Case Law Corner – Archives 2022

Keeping track of lawsuits involving artworks, cultural property, artists’ estates, galleries, etc.

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From the January 2022 Newsletter

Spencer Elden v. Nirvana, L.L.C., et al., No. 2:21-cv-06836 (C.D Cal. 2021) (Jan. 3, 2022) 

The plaintiff, Spencer Elden, earlier sued the band Nirvana, for use of Elden’s baby photo for their album cover. Elden argued that it constituted commercial child sexual exploitation. The judge, Fernando Olguin, dismissed the case on something of a technicality: Elden’s legal team had failed to meet a deadline to respond to Nirvana’s motion to dismiss. But Olguin extended the deadline to January 13, 2022, to refile the motion. Nirvana’s team, meanwhile, retains their position that the suit has no merit. Read the order here.

Anonymous 1 v. Anonymous 3, Slip Op 51078 (U) [68 Misc. 3d 1226 (A)] (N.Y Aug. 7, 2020) 

Libra Max previously sued Barbara Lissner to end guardianship of her father, Peter Max, an iconic psychedelic artist of the ‘60s and ‘70s. Peter has been under guardianship since December 2016. All his affairs, whether personal, financial, or legal, are controlled by “court appointed strangers.” Lissner has now sued back, alleging that Libra Max’s legal and public relations campaign defamed her. Read the opinion here.

Fenwick v. Sotheby’s, No. 2:21-cv-11987 (D.N.J May, 2021)

The lawsuit alleges that Sotheby’s denied full time employees their benefits by misidentifying them as freelancers; additionally, Fenwick, a former employee, is claiming that Sotheby’s didn’t pay him in a timely manner and that the auction house violated the Freelance Isn’t Free Act. The legal team for Sotheby’s filed a motion to dismiss the case in November 2021, claiming that it was “so devoid of factual allegations…it was difficult (if not impossible) to discern.” Read the complaint and motion to dismiss here.

Michael Xufu Huang v. Federico Castro Debernardi, No. 005156-CA-01 (M.D Mar. 3, 2021) 

In a lawsuit filed in March 2021 in a Miami-Dade County circuit court, collector Michael Xufu Huang alleged that collector Federico Castro Debernardi violated the terms of a sales agreement involving the sale of a $700,000 Cecily Brown painting. Huang was seeking $1.3 million in “reputational damages” from Debernardi. The case has now been settled out of court. Access a copy of the lawsuit here.

International

UK | R v. Graham et. al., Bristol’s Magistrate Court (Jan. 5, 2022). The ‘Colston Four,’ a group of activists, who toppled a statue of a 17th-century slave trader, Edward Colston in the U.K, have been cleared of criminal charges. Public support for the statue’s removal was a key element in the defense’s case. Lawyers argued the statue was offensive and needed to go, and that the Colston Four had not committed a criminal offense by taking the matter into their own hands. Banksy helped fundraise for the activists’ legal defense and after a two-week trial, a jury found them not guilty of causing criminal damage. Bail was granted and they are next due to appear at Bristol Crown Court on 8 February. Read more here.

From the February 2022 Newsletter

Morgan Art Foundation v. Michael McKenzieNo. 1:18-cv-04438-AT-BCM (S.D.N.& filed Dec. 10, 2021).

ArtNet reported that the Morgan Art Foundation (MAF) filed an “explosive memorandum” last December in its lawsuit against publisher McKenzie. Magistrate Judge Barbara Moses calendared a 2-½ hour March 1 hearing. “Given the gravity of the allegations made by MAF,” Judge Moses writes, “the Court will permit live testimony as requested by defendant McKenzie, including equal time for cross-examination by MAF.” Read the December memo HERE. Read Judge Moses’s order HERE.

Free Holdings Inc. v. Keven McCoy, Sotheby’s et alNo. 1:22-cv-00881-LGS (S.D.N.Y. filed Feb. 1, 2022).

In a case that could shape how the law applies to NFTs, ArtNet reports that a holding company claiming true ownership of Kevin McCoy’s Quantum (2014), auctioned by Sotheby’s last year, has sued the auction house and artist. In its heated complaint (which you can read here), the plaintiff accuses McCoy and Sotheby’s of “concerted efforts . . . to establish a false narrative concerning what is presumed to be the first NFT” and features numerous screenshots, including at least one Elmo meme. Read about the suit HERE.

Hayden v. Koons, 1:21-cv-10249-LGS (S.D.N.Y. filed Dec. 2, 2021).

In a case that has copyright nerds taking cold showers, the sculptor behind a serpent-wrapped sex stage has sued artist Jeff Koons for infringement. Koons used the platform, originally made for Italian adult-film star and politician Cicciolina (Ilona Staller),  in his 1989 “Made in Heaven” series. Koons is no stranger to litigation and even cites two prior lawsuits in his February 4 motion to dismiss, which you can read here. Originally reported by Reuters.

Korsen v. Volkswagen et al., 2:21-cv-08893-DMG-SK (C.D.Ca. filed Nov 11, 2021).

Artist Jennifer Korsen sued Volkswagen and Marvel Entertainment last November for copyright infringement, among other claims. Volkswagen, which owns Audi, produced an Audi commercial in partnership with Marvel for its movie Avengers: Endgame, in which mural art by Korsen appears in the background. The parties settled quickly and the case was dismissed with prejudice on February 4, 2022. You can read the complaint here. No answers were ever filed.

Higgins v. GladstoneNo. 150934/2022 (Sup. Ct. N.Y. filed Jan. 31, 2022).

Nate Freeman reports for Vanity Fair that former Gladstone Gallery employee Laura Higgins has sued the gallery, its owner, Barbara Gladstone, and its manager, Max Falkenstein, for a litany of complaints, including retaliation, intentional infliction of emotional distress, defamation, and assault. As Freeman points out, art litigation is commonplace, but “[i]t’s much rarer to see low-level employees looking for legal redress from name-brand employers.” The case has divided the New York gallery community. You can read the complaint here.

Concannon v. Lego Systems, No. 3:21-cv-01678-JBA (Dis. of Conn. filed Dec. 17, 2021).

The Fashion Law Blog reported last month that artist and designer James Concannon is suing Lego for copyright infringement. When Lego released its Queer Eye set last year, the Antoni Porowski figurine included a bodice that mimicked a custom leather jacket designed for Porowski by Concannon. Concannon accuses Lego of “blatant disregard for his intellectual property rights and . . . willful infringement.” Read the complaint here.

From the March 2022 Newsletter

United States

Vincent Sicre de Fontdrune, et. al., v. Alan Wofsy, (Ct. App. 9th) (July 13, 2022) D.C. No. 5:13-cv-05957- EJD

In the 1930’s, Christian Zervos, a photographer, created a catalogue raisonne of the works of Pablo Picasso. In 1979, Yves Sicre de Fontbrune acquired all of Zervos’ intellectual property rights, including those of the Zervos Catalog. In 1991, Alan Wofsy acquired permission from the estate of Pablo Picasso to publish a retrospective on Picasso’s works, The Picasso Project, which included reproductions of photographs from the Zervos Catalog. Sicre de Fontbrune then brought a copyright infringement suit in 1998 against Wofsy in the French courts, which determined that the Zervos photographs were subject to copyright protection and that Wofsy had violated those intellectual property rights. In 2011, Sicre de Fontbrune brought a new suit in a French court seeking to enforce the terms of the “astreinte” (a sanction that would entitle Sicre de Fontbrune to damages of 10,000 francs for each infraction of the prohibition against Wofsy’s use of the Zervos photographs) .Sicre de Fontbrune then brought a suit in Superior Court of California, Alameda County, to enforce the French judgment, and the district court dismissed the case;the Ninth Circuit reversed; and on remand, the district court granted summary judgment to Wofsy, determining that the astreinte was repugnant to the public policy of the United States and California that favors free expression. On appeal, the Ninth Circuit reversed the district court grant of summary judgment, finding that the reproductions of the photographs in The Picasso Project were not protected by fair use and that the French judgment of copyright infringement was not against public policy in the United States and California. Read the case HERE.

Estate of Henry Joseph Darger v. The Nathan and Kiyoko Lerner Foundation et al., No. 1:2022-cv-03911 (N.D III. Jul. 27, 2022)
Christen Sadowski, plaintiff and relative of artist Henry Darger, filed a lawsuit against the artist’s former Chicago landlords, Kiyoko Lerner and her late husband, Nathan Lerner, regarding the artwork Darger left behind and the copyrights therein. The lawsuit seeks to give the estate sole ownership of the copyrights inDarger’s works and the return to the estate of those works. The suit is also seeking any profits from the sale of the art and a list, from Lerner, of all of the Darger artwork in her possession. Read more HERE.

Hayden v. Koons, No. 21 CIV. 10249 (LGS), 2022 WL 2819364 (S.D.N.Y. Jul. 18, 2022)
Michael Hayden, an artist who worked in Italy, sued Jeff Koons, contemporary artist, after discovering one of his “Made in Heaven” works was used in photographs by Koons and mentioned in connection with Koons in an Italian news article. Hayden filed a suit against Koons in New York federal court for copyright infringement, publication of false copyright management information under the Digital Millennium Copyright Act (DMCA), and violation of the right of attribution under the Visual Artists Rights Act (VARA). Koons moved to dismiss the complaint on the pleadings, which the district court denied. In denying Koons’s  motion to dismiss, the district court rejected the argument that the sculpture was a useful article that was not subject to copyright protection and held that Koons’ fair use defense was not capable of determination on pleadings. Read the case HERE.

Pindell v. N’Namdi et al, 1:20-cv-00818-PGG (S.D.N.Y.)
Artist Howardena Pindell originally filed a lawsuit against her former gallery, G. R. N’Namdi Gallery, in 2020. Pindell claims that the gallery misled her about the sales of many of her works, in violation of Section 12.01 of the New York Arts and Cultural Affairs Law (NYACAL). Under NYACAL Section 12.01, an artist merchant shall act as an agent of the artist and is bound to the artist by a fiduciary duty. Pindell sought $500,000 in damages and the return of 20 works still in the gallery’s possession. Following extensive motion practice, including the submission of 126 documents to the court, the parties settled. Terms of the settlement were not made public.

Mochary v. Bergstein, No. 21-1972 (2d Cir. 2022)
The suit centers around the ownership of a Jackson Pollock collage, which is part of the millions of dollars of disputed marital property in former state Sen. Alex Kasser’s contentious divorce. Bergstein claimed it was joint property of the marriage and its future ownership should be decided by a state divorce court. Kasser’s brother, Matthew Mochary, claimed the collage is his, a gift from his mother that he loaned to his sister and Bergstein to display in their home. When Bergstein refused to return the art, Mochary sued in federal court. The U.S. district court dismissed Mochary’s suit last year, ruling for Bergstein, who wanted to leave ownership to a property settlement in divorce court. This year, a federal appeals court in New York reversed the decision, such that  Mochary may renew his fight for the art in federal court as the divorce trial, now scheduled to start in October, plays out. Mochary claims in his suit that his parents bought the 16 x 21 inch mixed-media collage — valued at $175,000 — from Sotheby’s in 1978. Bergstein asserts that Mochary’s mother testified in a deposition that she gave the Pollock to her daughter and confirmed the gift on a tax return. What’s more, Bergstein claims his wife has listed the Pollock as personal property on three separate financial affidavits. Read the full case HERE.

Morford v. Cattelan, No. 1:21-cv-20039 (S.D. Fla. Apr. 8, 2022)
A federal court in Miami denied Italian artist Maurizio Cattelan’s motion to dismiss the litigation brought by American artist, Joe Morford, alleging that Cattelan’s “Comedian “infringes the copyright of his own work, “Banana & Orange”. Morford, who is representing himself, claimed that Cattelan plagiarized and inappropriately copied Banana & Orange, which Morford registered with the U.S. Copyright Office in 2000. The court concluded that, at this stage in the civil suit, Morford has “adequately alleged that Cattelan’s Comedian has a substantial similarity to […] elements of Banana & Orange.” Read the full case HERE.

From the April 2022 Newsletter

United States

Vincent Sicre de Fontdrune, et. al., v. Alan Wofsy, (Ct. App. 9th) (July 13, 2022) D.C. No. 5:13-cv-05957- EJD

In the 1930’s, Christian Zervos, a photographer, created a catalogue raisonne of the works of Pablo Picasso. In 1979, Yves Sicre de Fontbrune acquired all of Zervos’ intellectual property rights, including those of the Zervos Catalog. In 1991, Alan Wofsy acquired permission from the estate of Pablo Picasso to publish a retrospective on Picasso’s works, The Picasso Project, which included reproductions of photographs from the Zervos Catalog. Sicre de Fontbrune then brought a copyright infringement suit in 1998 against Wofsy in the French courts, which determined that the Zervos photographs were subject to copyright protection and that Wofsy had violated those intellectual property rights. In 2011, Sicre de Fontbrune brought a new suit in a French court seeking to enforce the terms of the “astreinte” (a sanction that would entitle Sicre de Fontbrune to damages of 10,000 francs for each infraction of the prohibition against Wofsy’s use of the Zervos photographs) .Sicre de Fontbrune then brought a suit in Superior Court of California, Alameda County, to enforce the French judgment, and the district court dismissed the case;the Ninth Circuit reversed; and on remand, the district court granted summary judgment to Wofsy, determining that the astreinte was repugnant to the public policy of the United States and California that favors free expression. On appeal, the Ninth Circuit reversed the district court grant of summary judgment, finding that the reproductions of the photographs in The Picasso Project were not protected by fair use and that the French judgment of copyright infringement was not against public policy in the United States and California. Read the case HERE.

Estate of Henry Joseph Darger v. The Nathan and Kiyoko Lerner Foundation et al., No. 1:2022-cv-03911 (N.D III. Jul. 27, 2022)
Christen Sadowski, plaintiff and relative of artist Henry Darger, filed a lawsuit against the artist’s former Chicago landlords, Kiyoko Lerner and her late husband, Nathan Lerner, regarding the artwork Darger left behind and the copyrights therein. The lawsuit seeks to give the estate sole ownership of the copyrights inDarger’s works and the return to the estate of those works. The suit is also seeking any profits from the sale of the art and a list, from Lerner, of all of the Darger artwork in her possession. Read more HERE.

Hayden v. Koons, No. 21 CIV. 10249 (LGS), 2022 WL 2819364 (S.D.N.Y. Jul. 18, 2022)
Michael Hayden, an artist who worked in Italy, sued Jeff Koons, contemporary artist, after discovering one of his “Made in Heaven” works was used in photographs by Koons and mentioned in connection with Koons in an Italian news article. Hayden filed a suit against Koons in New York federal court for copyright infringement, publication of false copyright management information under the Digital Millennium Copyright Act (DMCA), and violation of the right of attribution under the Visual Artists Rights Act (VARA). Koons moved to dismiss the complaint on the pleadings, which the district court denied. In denying Koons’s  motion to dismiss, the district court rejected the argument that the sculpture was a useful article that was not subject to copyright protection and held that Koons’ fair use defense was not capable of determination on pleadings. Read the case HERE.

Pindell v. N’Namdi et al, 1:20-cv-00818-PGG (S.D.N.Y.)
Artist Howardena Pindell originally filed a lawsuit against her former gallery, G. R. N’Namdi Gallery, in 2020. Pindell claims that the gallery misled her about the sales of many of her works, in violation of Section 12.01 of the New York Arts and Cultural Affairs Law (NYACAL). Under NYACAL Section 12.01, an artist merchant shall act as an agent of the artist and is bound to the artist by a fiduciary duty. Pindell sought $500,000 in damages and the return of 20 works still in the gallery’s possession. Following extensive motion practice, including the submission of 126 documents to the court, the parties settled. Terms of the settlement were not made public.

Mochary v. Bergstein, No. 21-1972 (2d Cir. 2022)
The suit centers around the ownership of a Jackson Pollock collage, which is part of the millions of dollars of disputed marital property in former state Sen. Alex Kasser’s contentious divorce. Bergstein claimed it was joint property of the marriage and its future ownership should be decided by a state divorce court. Kasser’s brother, Matthew Mochary, claimed the collage is his, a gift from his mother that he loaned to his sister and Bergstein to display in their home. When Bergstein refused to return the art, Mochary sued in federal court. The U.S. district court dismissed Mochary’s suit last year, ruling for Bergstein, who wanted to leave ownership to a property settlement in divorce court. This year, a federal appeals court in New York reversed the decision, such that  Mochary may renew his fight for the art in federal court as the divorce trial, now scheduled to start in October, plays out. Mochary claims in his suit that his parents bought the 16 x 21 inch mixed-media collage — valued at $175,000 — from Sotheby’s in 1978. Bergstein asserts that Mochary’s mother testified in a deposition that she gave the Pollock to her daughter and confirmed the gift on a tax return. What’s more, Bergstein claims his wife has listed the Pollock as personal property on three separate financial affidavits. Read the full case HERE.

Morford v. Cattelan, No. 1:21-cv-20039 (S.D. Fla. Apr. 8, 2022)
A federal court in Miami denied Italian artist Maurizio Cattelan’s motion to dismiss the litigation brought by American artist, Joe Morford, alleging that Cattelan’s “Comedian “infringes the copyright of his own work, “Banana & Orange”. Morford, who is representing himself, claimed that Cattelan plagiarized and inappropriately copied Banana & Orange, which Morford registered with the U.S. Copyright Office in 2000. The court concluded that, at this stage in the civil suit, Morford has “adequately alleged that Cattelan’s Comedian has a substantial similarity to […] elements of Banana & Orange.” Read the full case HERE.

From the May 2022 Newsletter

United States

Vincent Sicre de Fontdrune, et. al., v. Alan Wofsy, (Ct. App. 9th) (July 13, 2022) D.C. No. 5:13-cv-05957- EJD

In the 1930’s, Christian Zervos, a photographer, created a catalogue raisonne of the works of Pablo Picasso. In 1979, Yves Sicre de Fontbrune acquired all of Zervos’ intellectual property rights, including those of the Zervos Catalog. In 1991, Alan Wofsy acquired permission from the estate of Pablo Picasso to publish a retrospective on Picasso’s works, The Picasso Project, which included reproductions of photographs from the Zervos Catalog. Sicre de Fontbrune then brought a copyright infringement suit in 1998 against Wofsy in the French courts, which determined that the Zervos photographs were subject to copyright protection and that Wofsy had violated those intellectual property rights. In 2011, Sicre de Fontbrune brought a new suit in a French court seeking to enforce the terms of the “astreinte” (a sanction that would entitle Sicre de Fontbrune to damages of 10,000 francs for each infraction of the prohibition against Wofsy’s use of the Zervos photographs) .Sicre de Fontbrune then brought a suit in Superior Court of California, Alameda County, to enforce the French judgment, and the district court dismissed the case;the Ninth Circuit reversed; and on remand, the district court granted summary judgment to Wofsy, determining that the astreinte was repugnant to the public policy of the United States and California that favors free expression. On appeal, the Ninth Circuit reversed the district court grant of summary judgment, finding that the reproductions of the photographs in The Picasso Project were not protected by fair use and that the French judgment of copyright infringement was not against public policy in the United States and California. Read the case HERE.

Estate of Henry Joseph Darger v. The Nathan and Kiyoko Lerner Foundation et al., No. 1:2022-cv-03911 (N.D III. Jul. 27, 2022)
Christen Sadowski, plaintiff and relative of artist Henry Darger, filed a lawsuit against the artist’s former Chicago landlords, Kiyoko Lerner and her late husband, Nathan Lerner, regarding the artwork Darger left behind and the copyrights therein. The lawsuit seeks to give the estate sole ownership of the copyrights inDarger’s works and the return to the estate of those works. The suit is also seeking any profits from the sale of the art and a list, from Lerner, of all of the Darger artwork in her possession. Read more HERE.

Hayden v. Koons, No. 21 CIV. 10249 (LGS), 2022 WL 2819364 (S.D.N.Y. Jul. 18, 2022)
Michael Hayden, an artist who worked in Italy, sued Jeff Koons, contemporary artist, after discovering one of his “Made in Heaven” works was used in photographs by Koons and mentioned in connection with Koons in an Italian news article. Hayden filed a suit against Koons in New York federal court for copyright infringement, publication of false copyright management information under the Digital Millennium Copyright Act (DMCA), and violation of the right of attribution under the Visual Artists Rights Act (VARA). Koons moved to dismiss the complaint on the pleadings, which the district court denied. In denying Koons’s  motion to dismiss, the district court rejected the argument that the sculpture was a useful article that was not subject to copyright protection and held that Koons’ fair use defense was not capable of determination on pleadings. Read the case HERE.

Pindell v. N’Namdi et al, 1:20-cv-00818-PGG (S.D.N.Y.)
Artist Howardena Pindell originally filed a lawsuit against her former gallery, G. R. N’Namdi Gallery, in 2020. Pindell claims that the gallery misled her about the sales of many of her works, in violation of Section 12.01 of the New York Arts and Cultural Affairs Law (NYACAL). Under NYACAL Section 12.01, an artist merchant shall act as an agent of the artist and is bound to the artist by a fiduciary duty. Pindell sought $500,000 in damages and the return of 20 works still in the gallery’s possession. Following extensive motion practice, including the submission of 126 documents to the court, the parties settled. Terms of the settlement were not made public.

Mochary v. Bergstein, No. 21-1972 (2d Cir. 2022)
The suit centers around the ownership of a Jackson Pollock collage, which is part of the millions of dollars of disputed marital property in former state Sen. Alex Kasser’s contentious divorce. Bergstein claimed it was joint property of the marriage and its future ownership should be decided by a state divorce court. Kasser’s brother, Matthew Mochary, claimed the collage is his, a gift from his mother that he loaned to his sister and Bergstein to display in their home. When Bergstein refused to return the art, Mochary sued in federal court. The U.S. district court dismissed Mochary’s suit last year, ruling for Bergstein, who wanted to leave ownership to a property settlement in divorce court. This year, a federal appeals court in New York reversed the decision, such that  Mochary may renew his fight for the art in federal court as the divorce trial, now scheduled to start in October, plays out. Mochary claims in his suit that his parents bought the 16 x 21 inch mixed-media collage — valued at $175,000 — from Sotheby’s in 1978. Bergstein asserts that Mochary’s mother testified in a deposition that she gave the Pollock to her daughter and confirmed the gift on a tax return. What’s more, Bergstein claims his wife has listed the Pollock as personal property on three separate financial affidavits. Read the full case HERE.

Morford v. Cattelan, No. 1:21-cv-20039 (S.D. Fla. Apr. 8, 2022)
A federal court in Miami denied Italian artist Maurizio Cattelan’s motion to dismiss the litigation brought by American artist, Joe Morford, alleging that Cattelan’s “Comedian “infringes the copyright of his own work, “Banana & Orange”. Morford, who is representing himself, claimed that Cattelan plagiarized and inappropriately copied Banana & Orange, which Morford registered with the U.S. Copyright Office in 2000. The court concluded that, at this stage in the civil suit, Morford has “adequately alleged that Cattelan’s Comedian has a substantial similarity to […] elements of Banana & Orange.” Read the full case HERE.

From the June 2022 Newsletter

United States

Vincent Sicre de Fontdrune, et. al., v. Alan Wofsy, (Ct. App. 9th) (July 13, 2022) D.C. No. 5:13-cv-05957- EJD

In the 1930’s, Christian Zervos, a photographer, created a catalogue raisonne of the works of Pablo Picasso. In 1979, Yves Sicre de Fontbrune acquired all of Zervos’ intellectual property rights, including those of the Zervos Catalog. In 1991, Alan Wofsy acquired permission from the estate of Pablo Picasso to publish a retrospective on Picasso’s works, The Picasso Project, which included reproductions of photographs from the Zervos Catalog. Sicre de Fontbrune then brought a copyright infringement suit in 1998 against Wofsy in the French courts, which determined that the Zervos photographs were subject to copyright protection and that Wofsy had violated those intellectual property rights. In 2011, Sicre de Fontbrune brought a new suit in a French court seeking to enforce the terms of the “astreinte” (a sanction that would entitle Sicre de Fontbrune to damages of 10,000 francs for each infraction of the prohibition against Wofsy’s use of the Zervos photographs) .Sicre de Fontbrune then brought a suit in Superior Court of California, Alameda County, to enforce the French judgment, and the district court dismissed the case;the Ninth Circuit reversed; and on remand, the district court granted summary judgment to Wofsy, determining that the astreinte was repugnant to the public policy of the United States and California that favors free expression. On appeal, the Ninth Circuit reversed the district court grant of summary judgment, finding that the reproductions of the photographs in The Picasso Project were not protected by fair use and that the French judgment of copyright infringement was not against public policy in the United States and California. Read the case HERE.

Estate of Henry Joseph Darger v. The Nathan and Kiyoko Lerner Foundation et al., No. 1:2022-cv-03911 (N.D III. Jul. 27, 2022)
Christen Sadowski, plaintiff and relative of artist Henry Darger, filed a lawsuit against the artist’s former Chicago landlords, Kiyoko Lerner and her late husband, Nathan Lerner, regarding the artwork Darger left behind and the copyrights therein. The lawsuit seeks to give the estate sole ownership of the copyrights inDarger’s works and the return to the estate of those works. The suit is also seeking any profits from the sale of the art and a list, from Lerner, of all of the Darger artwork in her possession. Read more HERE.

Hayden v. Koons, No. 21 CIV. 10249 (LGS), 2022 WL 2819364 (S.D.N.Y. Jul. 18, 2022)
Michael Hayden, an artist who worked in Italy, sued Jeff Koons, contemporary artist, after discovering one of his “Made in Heaven” works was used in photographs by Koons and mentioned in connection with Koons in an Italian news article. Hayden filed a suit against Koons in New York federal court for copyright infringement, publication of false copyright management information under the Digital Millennium Copyright Act (DMCA), and violation of the right of attribution under the Visual Artists Rights Act (VARA). Koons moved to dismiss the complaint on the pleadings, which the district court denied. In denying Koons’s  motion to dismiss, the district court rejected the argument that the sculpture was a useful article that was not subject to copyright protection and held that Koons’ fair use defense was not capable of determination on pleadings. Read the case HERE.

Pindell v. N’Namdi et al, 1:20-cv-00818-PGG (S.D.N.Y.)
Artist Howardena Pindell originally filed a lawsuit against her former gallery, G. R. N’Namdi Gallery, in 2020. Pindell claims that the gallery misled her about the sales of many of her works, in violation of Section 12.01 of the New York Arts and Cultural Affairs Law (NYACAL). Under NYACAL Section 12.01, an artist merchant shall act as an agent of the artist and is bound to the artist by a fiduciary duty. Pindell sought $500,000 in damages and the return of 20 works still in the gallery’s possession. Following extensive motion practice, including the submission of 126 documents to the court, the parties settled. Terms of the settlement were not made public.

Mochary v. Bergstein, No. 21-1972 (2d Cir. 2022)
The suit centers around the ownership of a Jackson Pollock collage, which is part of the millions of dollars of disputed marital property in former state Sen. Alex Kasser’s contentious divorce. Bergstein claimed it was joint property of the marriage and its future ownership should be decided by a state divorce court. Kasser’s brother, Matthew Mochary, claimed the collage is his, a gift from his mother that he loaned to his sister and Bergstein to display in their home. When Bergstein refused to return the art, Mochary sued in federal court. The U.S. district court dismissed Mochary’s suit last year, ruling for Bergstein, who wanted to leave ownership to a property settlement in divorce court. This year, a federal appeals court in New York reversed the decision, such that  Mochary may renew his fight for the art in federal court as the divorce trial, now scheduled to start in October, plays out. Mochary claims in his suit that his parents bought the 16 x 21 inch mixed-media collage — valued at $175,000 — from Sotheby’s in 1978. Bergstein asserts that Mochary’s mother testified in a deposition that she gave the Pollock to her daughter and confirmed the gift on a tax return. What’s more, Bergstein claims his wife has listed the Pollock as personal property on three separate financial affidavits. Read the full case HERE.

Morford v. Cattelan, No. 1:21-cv-20039 (S.D. Fla. Apr. 8, 2022)
A federal court in Miami denied Italian artist Maurizio Cattelan’s motion to dismiss the litigation brought by American artist, Joe Morford, alleging that Cattelan’s “Comedian “infringes the copyright of his own work, “Banana & Orange”. Morford, who is representing himself, claimed that Cattelan plagiarized and inappropriately copied Banana & Orange, which Morford registered with the U.S. Copyright Office in 2000. The court concluded that, at this stage in the civil suit, Morford has “adequately alleged that Cattelan’s Comedian has a substantial similarity to […] elements of Banana & Orange.” Read the full case HERE.

From the July 2022 Newsletter

United States

Vincent Sicre de Fontdrune, et. al., v. Alan Wofsy, (Ct. App. 9th) (July 13, 2022) D.C. No. 5:13-cv-05957- EJD

In the 1930’s, Christian Zervos, a photographer, created a catalogue raisonne of the works of Pablo Picasso. In 1979, Yves Sicre de Fontbrune acquired all of Zervos’ intellectual property rights, including those of the Zervos Catalog. In 1991, Alan Wofsy acquired permission from the estate of Pablo Picasso to publish a retrospective on Picasso’s works, The Picasso Project, which included reproductions of photographs from the Zervos Catalog. Sicre de Fontbrune then brought a copyright infringement suit in 1998 against Wofsy in the French courts, which determined that the Zervos photographs were subject to copyright protection and that Wofsy had violated those intellectual property rights. In 2011, Sicre de Fontbrune brought a new suit in a French court seeking to enforce the terms of the “astreinte” (a sanction that would entitle Sicre de Fontbrune to damages of 10,000 francs for each infraction of the prohibition against Wofsy’s use of the Zervos photographs) .Sicre de Fontbrune then brought a suit in Superior Court of California, Alameda County, to enforce the French judgment, and the district court dismissed the case;the Ninth Circuit reversed; and on remand, the district court granted summary judgment to Wofsy, determining that the astreinte was repugnant to the public policy of the United States and California that favors free expression. On appeal, the Ninth Circuit reversed the district court grant of summary judgment, finding that the reproductions of the photographs in The Picasso Project were not protected by fair use and that the French judgment of copyright infringement was not against public policy in the United States and California. Read the case HERE.

Estate of Henry Joseph Darger v. The Nathan and Kiyoko Lerner Foundation et al., No. 1:2022-cv-03911 (N.D III. Jul. 27, 2022)
Christen Sadowski, plaintiff and relative of artist Henry Darger, filed a lawsuit against the artist’s former Chicago landlords, Kiyoko Lerner and her late husband, Nathan Lerner, regarding the artwork Darger left behind and the copyrights therein. The lawsuit seeks to give the estate sole ownership of the copyrights inDarger’s works and the return to the estate of those works. The suit is also seeking any profits from the sale of the art and a list, from Lerner, of all of the Darger artwork in her possession. Read more HERE.

Hayden v. Koons, No. 21 CIV. 10249 (LGS), 2022 WL 2819364 (S.D.N.Y. Jul. 18, 2022)
Michael Hayden, an artist who worked in Italy, sued Jeff Koons, contemporary artist, after discovering one of his “Made in Heaven” works was used in photographs by Koons and mentioned in connection with Koons in an Italian news article. Hayden filed a suit against Koons in New York federal court for copyright infringement, publication of false copyright management information under the Digital Millennium Copyright Act (DMCA), and violation of the right of attribution under the Visual Artists Rights Act (VARA). Koons moved to dismiss the complaint on the pleadings, which the district court denied. In denying Koons’s  motion to dismiss, the district court rejected the argument that the sculpture was a useful article that was not subject to copyright protection and held that Koons’ fair use defense was not capable of determination on pleadings. Read the case HERE.

Pindell v. N’Namdi et al, 1:20-cv-00818-PGG (S.D.N.Y.)
Artist Howardena Pindell originally filed a lawsuit against her former gallery, G. R. N’Namdi Gallery, in 2020. Pindell claims that the gallery misled her about the sales of many of her works, in violation of Section 12.01 of the New York Arts and Cultural Affairs Law (NYACAL). Under NYACAL Section 12.01, an artist merchant shall act as an agent of the artist and is bound to the artist by a fiduciary duty. Pindell sought $500,000 in damages and the return of 20 works still in the gallery’s possession. Following extensive motion practice, including the submission of 126 documents to the court, the parties settled. Terms of the settlement were not made public.

Mochary v. Bergstein, No. 21-1972 (2d Cir. 2022)
The suit centers around the ownership of a Jackson Pollock collage, which is part of the millions of dollars of disputed marital property in former state Sen. Alex Kasser’s contentious divorce. Bergstein claimed it was joint property of the marriage and its future ownership should be decided by a state divorce court. Kasser’s brother, Matthew Mochary, claimed the collage is his, a gift from his mother that he loaned to his sister and Bergstein to display in their home. When Bergstein refused to return the art, Mochary sued in federal court. The U.S. district court dismissed Mochary’s suit last year, ruling for Bergstein, who wanted to leave ownership to a property settlement in divorce court. This year, a federal appeals court in New York reversed the decision, such that  Mochary may renew his fight for the art in federal court as the divorce trial, now scheduled to start in October, plays out. Mochary claims in his suit that his parents bought the 16 x 21 inch mixed-media collage — valued at $175,000 — from Sotheby’s in 1978. Bergstein asserts that Mochary’s mother testified in a deposition that she gave the Pollock to her daughter and confirmed the gift on a tax return. What’s more, Bergstein claims his wife has listed the Pollock as personal property on three separate financial affidavits. Read the full case HERE.

Morford v. Cattelan, No. 1:21-cv-20039 (S.D. Fla. Apr. 8, 2022)
A federal court in Miami denied Italian artist Maurizio Cattelan’s motion to dismiss the litigation brought by American artist, Joe Morford, alleging that Cattelan’s “Comedian “infringes the copyright of his own work, “Banana & Orange”. Morford, who is representing himself, claimed that Cattelan plagiarized and inappropriately copied Banana & Orange, which Morford registered with the U.S. Copyright Office in 2000. The court concluded that, at this stage in the civil suit, Morford has “adequately alleged that Cattelan’s Comedian has a substantial similarity to […] elements of Banana & Orange.” Read the full case HERE.

From the August 2022 Newsletter

United States

Vincent Sicre de Fontdrune, et. al., v. Alan Wofsy, (Ct. App. 9th) (July 13, 2022) D.C. No. 5:13-cv-05957- EJD
In the 1930’s, Christian Zervos, a photographer, created a catalogue raisonne of the works of Pablo Picasso. In 1979, Yves Sicre de Fontbrune acquired all of Zervos’ intellectual property rights, including those of the Zervos Catalog. In 1991, Alan Wofsy acquired permission from the estate of Pablo Picasso to publish a retrospective on Picasso’s works, The Picasso Project, which included reproductions of photographs from the Zervos Catalog. Sicre de Fontbrune then brought a copyright infringement suit in 1998 against Wofsy in the French courts, which determined that the Zervos photographs were subject to copyright protection and that Wofsy had violated those intellectual property rights. In 2011, Sicre de Fontbrune brought a new suit in a French court seeking to enforce the terms of the “astreinte” (a sanction that would entitle Sicre de Fontbrune to damages of 10,000 francs for each infraction of the prohibition against Wofsy’s use of the Zervos photographs) .Sicre de Fontbrune then brought a suit in Superior Court of California, Alameda County, to enforce the French judgment, and the district court dismissed the case;the Ninth Circuit reversed; and on remand, the district court granted summary judgment to Wofsy, determining that the astreinte was repugnant to the public policy of the United States and California that favors free expression. On appeal, the Ninth Circuit reversed the district court grant of summary judgment, finding that the reproductions of the photographs in The Picasso Project were not protected by fair use and that the French judgment of copyright infringement was not against public policy in the United States and California. Read the case HERE.

Estate of Henry Joseph Darger v. The Nathan and Kiyoko Lerner Foundation et al., No. 1:2022-cv-03911 (N.D III. Jul. 27, 2022)
Christen Sadowski, plaintiff and relative of artist Henry Darger, filed a lawsuit against the artist’s former Chicago landlords, Kiyoko Lerner and her late husband, Nathan Lerner, regarding the artwork Darger left behind and the copyrights therein. The lawsuit seeks to give the estate sole ownership of the copyrights inDarger’s works and the return to the estate of those works. The suit is also seeking any profits from the sale of the art and a list, from Lerner, of all of the Darger artwork in her possession. Read more HERE.

Hayden v. Koons, No. 21 CIV. 10249 (LGS), 2022 WL 2819364 (S.D.N.Y. Jul. 18, 2022)
Michael Hayden, an artist who worked in Italy, sued Jeff Koons, contemporary artist, after discovering one of his “Made in Heaven” works was used in photographs by Koons and mentioned in connection with Koons in an Italian news article. Hayden filed a suit against Koons in New York federal court for copyright infringement, publication of false copyright management information under the Digital Millennium Copyright Act (DMCA), and violation of the right of attribution under the Visual Artists Rights Act (VARA). Koons moved to dismiss the complaint on the pleadings, which the district court denied. In denying Koons’s  motion to dismiss, the district court rejected the argument that the sculpture was a useful article that was not subject to copyright protection and held that Koons’ fair use defense was not capable of determination on pleadings. Read the case HERE.

Pindell v. N’Namdi et al, 1:20-cv-00818-PGG (S.D.N.Y.)
Artist Howardena Pindell originally filed a lawsuit against her former gallery, G. R. N’Namdi Gallery, in 2020. Pindell claims that the gallery misled her about the sales of many of her works, in violation of Section 12.01 of the New York Arts and Cultural Affairs Law (NYACAL). Under NYACAL Section 12.01, an artist merchant shall act as an agent of the artist and is bound to the artist by a fiduciary duty. Pindell sought $500,000 in damages and the return of 20 works still in the gallery’s possession. Following extensive motion practice, including the submission of 126 documents to the court, the parties settled. Terms of the settlement were not made public.

Mochary v. Bergstein, No. 21-1972 (2d Cir. 2022)
The suit centers around the ownership of a Jackson Pollock collage, which is part of the millions of dollars of disputed marital property in former state Sen. Alex Kasser’s contentious divorce. Bergstein claimed it was joint property of the marriage and its future ownership should be decided by a state divorce court. Kasser’s brother, Matthew Mochary, claimed the collage is his, a gift from his mother that he loaned to his sister and Bergstein to display in their home. When Bergstein refused to return the art, Mochary sued in federal court. The U.S. district court dismissed Mochary’s suit last year, ruling for Bergstein, who wanted to leave ownership to a property settlement in divorce court. This year, a federal appeals court in New York reversed the decision, such that  Mochary may renew his fight for the art in federal court as the divorce trial, now scheduled to start in October, plays out. Mochary claims in his suit that his parents bought the 16 x 21 inch mixed-media collage — valued at $175,000 — from Sotheby’s in 1978. Bergstein asserts that Mochary’s mother testified in a deposition that she gave the Pollock to her daughter and confirmed the gift on a tax return. What’s more, Bergstein claims his wife has listed the Pollock as personal property on three separate financial affidavits. Read the full case HERE.

Morford v. Cattelan, No. 1:21-cv-20039 (S.D. Fla. Apr. 8, 2022)
A federal court in Miami denied Italian artist Maurizio Cattelan’s motion to dismiss the litigation brought by American artist, Joe Morford, alleging that Cattelan’s “Comedian “infringes the copyright of his own work, “Banana & Orange”. Morford, who is representing himself, claimed that Cattelan plagiarized and inappropriately copied Banana & Orange, which Morford registered with the U.S. Copyright Office in 2000. The court concluded that, at this stage in the civil suit, Morford has “adequately alleged that Cattelan’s Comedian has a substantial similarity to […] elements of Banana & Orange.” Read the full case HERE.

From the November 2022 Newsletter

Art Works, Inc. v. Al-Hadid, 2022 NY Slip Op 31522 – NY: Supreme Court 2022 The New York State Supreme Court ruled in favor of Diana Al-Hadid in her legal battle against gallery owner Marianne Boesky. The complaint orbited a single unnamed bronze sculpture and who owned it. According to Boesky, when Al-Hadid left the gallery in 2019, she owed a six-figure sum. The gallery and the artist entered into a settlement agreement however the dispute in question arose because ownership of the statue in question could not be decided. The gallery’s claim to ownership was based on a contract that Judge Louis L. Nock considered “ambiguous,” and “[did] not confer ownership to…[Boesky].” Read the Decision HERE

Davis v. Pinterest, Inc., No. 19-cv-07650-HSG (TSH) (N.D. Cal. Aug. 26, 2021). A federal judge in the Northern District of California has ruled in favor of Pinterest in a lawsuit brought by a New Jersey photographer. Harold Davis sued the social media company alleging that Pinterest infringed over fifty of his copyrighted works by displaying the images alongside advertisements without permission. Davis argues that use of his images amounts to unauthorized commercial use of his work. However, Judge Haywood Gilliam Jr., granted summary judgment in favor of Pinterest, reasoning that the social media platform is protected by safe harbor provisions of the Digital Millennium Copyright Act.  Read the Decision HERE. 

Andy Warhol Foundation v. Goldsmith, 11 F.4th 26 (2d Cir. 2021). The Second Circuit Court of Appeals ruled against precedent in a legal battle between the Andy Warhol Foundation (AWF) and Lynn Goldsmith. Goldsmith’s management company licensed a photograph of the singer Prince to Vanity Fair to be reproduced by an artist for their issue on the singer. Vanity Fair chose Andy Warhol. Warhol created numerous images though the license only permitted one. In 2016 when Prince died, Vanity Fair reprinted one of the several images from the series giving Goldsmith notice that multiple unlicensed copies of her image had been made. AWF filed for declaratory judgment in District Court, arguing that there was no infringement of Goldsmith’s copyright because of the fair use doctrine. The District Court Ruled in AWF’s favor, but the Court of Appeals sided with Goldsmith overturning the trial court decision.  Read the Decision HERE

De Fontbrune v. Wofsy, 39 F.4th 1214, 1236 (9th Cir. July 13, 2022) The Ninth Circuit ruled in the twelve-year battle between plaintiffs, representing the estate of Yves Sicre de Fontbrune, and defendants, Alan Wolfsy and Alan Wolfsy and Associates, over the use of 16,000 photographs of Picasso’s works. Between 1932 and 1970, Christian Zervos, Picasso’s friend, took 16,000 photographs of Picasso’s artworks and the photographs were featured in the Zervos Catalogue. In 1979, Yves Sicre de Fontbrune obtained the intellectual property rights to the catalogue. Then, in 1991, Alan Wolfsy, an American art editor, received permission from Picasso’s estate to publish images in his book, The Picasso Project. De Fontbrune sued in French courts, which ruled that use of the images  for “documentary” purposes did not violate Fontbrune’s copyright rights. De Fontbrune later sued in the U.S., where the Ninth Circuit held that there was evidence that Alan Wolfsy’s use of the copyrighted photographs were commercial and non-transformative and thus potentially violative of Fontbrune’s copyrights, and remanding the case back to the lower court.  Read the complaint HERE.

Howard Univ. v. Borders, No. 20-cv-4716 (LJL), 2022 WL 11817721 (S.D.N.Y. Oct. 20, 2022). A federal judge in the Southern District of New York ruled that a rediscovered Charles White drawing stolen from Howard University must be returned. The university acquired White’s drawing, Centralia Madonna, in 1947. However, the last time the artwork was seen at Howard was in 1973. The university never noted the artwork as stolen and only noted its location as unknown. Then, in 2020, the work was rediscovered when Larry and Virginia Border, a couple in North Carolina, attempted to consign the work at Sotheby’s, after having been gifted the work by a family friend. During its research into the work, Sotheby’s contacted Howard, where it was discovered that the work belonged to Howard. Howard filed a lawsuit against the Borders. The Borders claimed a defense of laches, alleging that there was an unreasonable delay of filing suit. While the judge did not find evidence that the Borders knew the work was stolen, the judge found that the Borders did not establish rightful ownership, the couple did not establish that Howard knew or should have known that the artwork was in the possession of a third party, nor did the couple establish that Howard could have tracked the work to them. The judge ruled that Centralia Madonna should be returned to Howard University. Read the case HERE.

From France

France |. According to a complaint filed with the Paris Court of Justice in 2010, Chairwomen of the French Auction House Tajan, Rodica Seward has hidden a cache of 24 paintings she was hired to sell in a deal with former UN Ambassador Craig Stapleton. In the complaint, Stapleton alleges that Seward agreed to select and purchase several paintings for the former ambassador to be resold to third party buyers. After the sales, the two were to split profits once Stapleton recouped the original purchase price. Stapleton alleges that not only were the pieces not sold but Seward refuses to disclose where they are being stored. After two letters from Stapleton’s attorney demanding the return of the pieces, Stapleton discovered one of his pieces, melancholic interior (2010-11) by Ioana Batranu, for sale online. Stapleton then asked a judge to authorize the search of Tajan’s offices and Seward’s home. The searches were unsuccessful and Seward, to this day, has refused to disclose the location of the paintings. More HERE.

France | Maurizio Cattelan v. Daniel Druet. For over twenty years, sculptor Daniel Druet made sculptures for conceptual artist Maurizio Cattelan’s projects. Druet brought forth suit in the Paris Judicial Court not against Cattelan directly but rather against Cattelan’s gallery, Galerie Emmanuel Perrotin; publishing company Turenne Editions; and museum Monnaie de Paris for not giving credit to Druet for the works created by him. Druet sued the defendants for 4.5 million Euros in damages and exclusive authorship of nine sculptures. The defendants argued that Druet was attempting to claim ownership of not only the sculptures created by him, but the entire installations created by Cattelan. On July 8, 2022, the Paris Judicial Court held that exclusive authorship of the works belong to Cattelan, citing to Article L. 113-1 of the French Intellectual Property Code which states that “authorship belongs, in the absence of proof to the contrary, to the person or persons under whose name the work has been disclosed.” Read more HERE.

From the July 2021 Newsletter

United States

Vincent Sicre de Fontdrune, et. al., v. Alan Wofsy, (Ct. App. 9th) (July 13, 2022) D.C. No. 5:13-cv-05957- EJD

In the 1930’s, Christian Zervos, a photographer, created a catalogue raisonne of the works of Pablo Picasso. In 1979, Yves Sicre de Fontbrune acquired all of Zervos’ intellectual property rights, including those of the Zervos Catalog. In 1991, Alan Wofsy acquired permission from the estate of Pablo Picasso to publish a retrospective on Picasso’s works, The Picasso Project, which included reproductions of photographs from the Zervos Catalog. Sicre de Fontbrune then brought a copyright infringement suit in 1998 against Wofsy in the French courts, which determined that the Zervos photographs were subject to copyright protection and that Wofsy had violated those intellectual property rights. In 2011, Sicre de Fontbrune brought a new suit in a French court seeking to enforce the terms of the “astreinte” (a sanction that would entitle Sicre de Fontbrune to damages of 10,000 francs for each infraction of the prohibition against Wofsy’s use of the Zervos photographs) .Sicre de Fontbrune then brought a suit in Superior Court of California, Alameda County, to enforce the French judgment, and the district court dismissed the case;the Ninth Circuit reversed; and on remand, the district court granted summary judgment to Wofsy, determining that the astreinte was repugnant to the public policy of the United States and California that favors free expression. On appeal, the Ninth Circuit reversed the district court grant of summary judgment, finding that the reproductions of the photographs in The Picasso Project were not protected by fair use and that the French judgment of copyright infringement was not against public policy in the United States and California. Read the case HERE.

Estate of Henry Joseph Darger v. The Nathan and Kiyoko Lerner Foundation et al., No. 1:2022-cv-03911 (N.D III. Jul. 27, 2022)
Christen Sadowski, plaintiff and relative of artist Henry Darger, filed a lawsuit against the artist’s former Chicago landlords, Kiyoko Lerner and her late husband, Nathan Lerner, regarding the artwork Darger left behind and the copyrights therein. The lawsuit seeks to give the estate sole ownership of the copyrights inDarger’s works and the return to the estate of those works. The suit is also seeking any profits from the sale of the art and a list, from Lerner, of all of the Darger artwork in her possession. Read more HERE.

Hayden v. Koons, No. 21 CIV. 10249 (LGS), 2022 WL 2819364 (S.D.N.Y. Jul. 18, 2022)
Michael Hayden, an artist who worked in Italy, sued Jeff Koons, contemporary artist, after discovering one of his “Made in Heaven” works was used in photographs by Koons and mentioned in connection with Koons in an Italian news article. Hayden filed a suit against Koons in New York federal court for copyright infringement, publication of false copyright management information under the Digital Millennium Copyright Act (DMCA), and violation of the right of attribution under the Visual Artists Rights Act (VARA). Koons moved to dismiss the complaint on the pleadings, which the district court denied. In denying Koons’s  motion to dismiss, the district court rejected the argument that the sculpture was a useful article that was not subject to copyright protection and held that Koons’ fair use defense was not capable of determination on pleadings. Read the case HERE.

Pindell v. N’Namdi et al, 1:20-cv-00818-PGG (S.D.N.Y.)
Artist Howardena Pindell originally filed a lawsuit against her former gallery, G. R. N’Namdi Gallery, in 2020. Pindell claims that the gallery misled her about the sales of many of her works, in violation of Section 12.01 of the New York Arts and Cultural Affairs Law (NYACAL). Under NYACAL Section 12.01, an artist merchant shall act as an agent of the artist and is bound to the artist by a fiduciary duty. Pindell sought $500,000 in damages and the return of 20 works still in the gallery’s possession. Following extensive motion practice, including the submission of 126 documents to the court, the parties settled. Terms of the settlement were not made public.

Mochary v. Bergstein, No. 21-1972 (2d Cir. 2022)
The suit centers around the ownership of a Jackson Pollock collage, which is part of the millions of dollars of disputed marital property in former state Sen. Alex Kasser’s contentious divorce. Bergstein claimed it was joint property of the marriage and its future ownership should be decided by a state divorce court. Kasser’s brother, Matthew Mochary, claimed the collage is his, a gift from his mother that he loaned to his sister and Bergstein to display in their home. When Bergstein refused to return the art, Mochary sued in federal court. The U.S. district court dismissed Mochary’s suit last year, ruling for Bergstein, who wanted to leave ownership to a property settlement in divorce court. This year, a federal appeals court in New York reversed the decision, such that  Mochary may renew his fight for the art in federal court as the divorce trial, now scheduled to start in October, plays out. Mochary claims in his suit that his parents bought the 16 x 21 inch mixed-media collage — valued at $175,000 — from Sotheby’s in 1978. Bergstein asserts that Mochary’s mother testified in a deposition that she gave the Pollock to her daughter and confirmed the gift on a tax return. What’s more, Bergstein claims his wife has listed the Pollock as personal property on three separate financial affidavits. Read the full case HERE.

Morford v. Cattelan, No. 1:21-cv-20039 (S.D. Fla. Apr. 8, 2022)
A federal court in Miami denied Italian artist Maurizio Cattelan’s motion to dismiss the litigation brought by American artist, Joe Morford, alleging that Cattelan’s “Comedian “infringes the copyright of his own work, “Banana & Orange”. Morford, who is representing himself, claimed that Cattelan plagiarized and inappropriately copied Banana & Orange, which Morford registered with the U.S. Copyright Office in 2000. The court concluded that, at this stage in the civil suit, Morford has “adequately alleged that Cattelan’s Comedian has a substantial similarity to […] elements of Banana & Orange.” Read the full case HERE.

From the August 2021 Newsletter

United States

Vincent Sicre de Fontdrune, et. al., v. Alan Wofsy, (Ct. App. 9th) (July 13, 2022) D.C. No. 5:13-cv-05957- EJD

In the 1930’s, Christian Zervos, a photographer, created a catalogue raisonne of the works of Pablo Picasso. In 1979, Yves Sicre de Fontbrune acquired all of Zervos’ intellectual property rights, including those of the Zervos Catalog. In 1991, Alan Wofsy acquired permission from the estate of Pablo Picasso to publish a retrospective on Picasso’s works, The Picasso Project, which included reproductions of photographs from the Zervos Catalog. Sicre de Fontbrune then brought a copyright infringement suit in 1998 against Wofsy in the French courts, which determined that the Zervos photographs were subject to copyright protection and that Wofsy had violated those intellectual property rights. In 2011, Sicre de Fontbrune brought a new suit in a French court seeking to enforce the terms of the “astreinte” (a sanction that would entitle Sicre de Fontbrune to damages of 10,000 francs for each infraction of the prohibition against Wofsy’s use of the Zervos photographs) .Sicre de Fontbrune then brought a suit in Superior Court of California, Alameda County, to enforce the French judgment, and the district court dismissed the case;the Ninth Circuit reversed; and on remand, the district court granted summary judgment to Wofsy, determining that the astreinte was repugnant to the public policy of the United States and California that favors free expression. On appeal, the Ninth Circuit reversed the district court grant of summary judgment, finding that the reproductions of the photographs in The Picasso Project were not protected by fair use and that the French judgment of copyright infringement was not against public policy in the United States and California. Read the case HERE.

Estate of Henry Joseph Darger v. The Nathan and Kiyoko Lerner Foundation et al., No. 1:2022-cv-03911 (N.D III. Jul. 27, 2022)
Christen Sadowski, plaintiff and relative of artist Henry Darger, filed a lawsuit against the artist’s former Chicago landlords, Kiyoko Lerner and her late husband, Nathan Lerner, regarding the artwork Darger left behind and the copyrights therein. The lawsuit seeks to give the estate sole ownership of the copyrights inDarger’s works and the return to the estate of those works. The suit is also seeking any profits from the sale of the art and a list, from Lerner, of all of the Darger artwork in her possession. Read more HERE.

Hayden v. Koons, No. 21 CIV. 10249 (LGS), 2022 WL 2819364 (S.D.N.Y. Jul. 18, 2022)
Michael Hayden, an artist who worked in Italy, sued Jeff Koons, contemporary artist, after discovering one of his “Made in Heaven” works was used in photographs by Koons and mentioned in connection with Koons in an Italian news article. Hayden filed a suit against Koons in New York federal court for copyright infringement, publication of false copyright management information under the Digital Millennium Copyright Act (DMCA), and violation of the right of attribution under the Visual Artists Rights Act (VARA). Koons moved to dismiss the complaint on the pleadings, which the district court denied. In denying Koons’s  motion to dismiss, the district court rejected the argument that the sculpture was a useful article that was not subject to copyright protection and held that Koons’ fair use defense was not capable of determination on pleadings. Read the case HERE.

Pindell v. N’Namdi et al, 1:20-cv-00818-PGG (S.D.N.Y.)
Artist Howardena Pindell originally filed a lawsuit against her former gallery, G. R. N’Namdi Gallery, in 2020. Pindell claims that the gallery misled her about the sales of many of her works, in violation of Section 12.01 of the New York Arts and Cultural Affairs Law (NYACAL). Under NYACAL Section 12.01, an artist merchant shall act as an agent of the artist and is bound to the artist by a fiduciary duty. Pindell sought $500,000 in damages and the return of 20 works still in the gallery’s possession. Following extensive motion practice, including the submission of 126 documents to the court, the parties settled. Terms of the settlement were not made public.

Mochary v. Bergstein, No. 21-1972 (2d Cir. 2022)
The suit centers around the ownership of a Jackson Pollock collage, which is part of the millions of dollars of disputed marital property in former state Sen. Alex Kasser’s contentious divorce. Bergstein claimed it was joint property of the marriage and its future ownership should be decided by a state divorce court. Kasser’s brother, Matthew Mochary, claimed the collage is his, a gift from his mother that he loaned to his sister and Bergstein to display in their home. When Bergstein refused to return the art, Mochary sued in federal court. The U.S. district court dismissed Mochary’s suit last year, ruling for Bergstein, who wanted to leave ownership to a property settlement in divorce court. This year, a federal appeals court in New York reversed the decision, such that  Mochary may renew his fight for the art in federal court as the divorce trial, now scheduled to start in October, plays out. Mochary claims in his suit that his parents bought the 16 x 21 inch mixed-media collage — valued at $175,000 — from Sotheby’s in 1978. Bergstein asserts that Mochary’s mother testified in a deposition that she gave the Pollock to her daughter and confirmed the gift on a tax return. What’s more, Bergstein claims his wife has listed the Pollock as personal property on three separate financial affidavits. Read the full case HERE.

Morford v. Cattelan, No. 1:21-cv-20039 (S.D. Fla. Apr. 8, 2022)
A federal court in Miami denied Italian artist Maurizio Cattelan’s motion to dismiss the litigation brought by American artist, Joe Morford, alleging that Cattelan’s “Comedian “infringes the copyright of his own work, “Banana & Orange”. Morford, who is representing himself, claimed that Cattelan plagiarized and inappropriately copied Banana & Orange, which Morford registered with the U.S. Copyright Office in 2000. The court concluded that, at this stage in the civil suit, Morford has “adequately alleged that Cattelan’s Comedian has a substantial similarity to […] elements of Banana & Orange.” Read the full case HERE.

From the January 2020 Newsletter

United States

State v. Roderick Webber, No. B-19-031881 (Fla. DDC. filed Dec. 10, 2019). After performance artist David Detuna ate Maurizio Cattelan’s banana at Art Basel Miami in December 2019, Roderick Webber used the empty space to scribble the words “EPSTIEN [sic] DIDNT KILL HIMSELF.” He is now is defending himself in court against charges of vandalism brought by the Miami DA’s office. A trial is scheduled for February 27, 2020. Reportedly, the gallery will not press charges.

Benton et al, v. UMB Bank, No. to be confirmed (Mo. Jackson Cty Ct. filed Dec. 17, 2019). The estate of painter Thomas Hart Benton (1889–1975) is suing Kansas City’s UMB Bank in Federal court, for allegedly mismanaging the estate, underselling artworks, and breaching their duties of care. The family is asking for the bank’s removal as trustee and for $1 million in damages, plus legal fees.

Edelman Arts v. New York Art World, LLC, No. 652017/2018 (N.Y. Sup. Ct, Dec. 20, 2019). A New York Supreme Court judge ruled that Edelman Arts, owned by collector and financier Asher Edelman, must pay an invoice––which they claimed to be canceled––for a $5 million Keith Haring. According to Pryor Cashman, the firm that represented the gallery, the decision highlights “that art dealers are subject to liability when they agree to purchase an artwork in their own name” and that buyer’s remorse does not suffice to cancel a sale. Decision available upon request.

International

Belgium | Igor and Olga Toporovsky, the couple who lent numerous fakes supposedly by Russian avant-garde artists such as Kandinsky and Malevich to the Museum of Fine Arts in Ghent, have been arrested in Belgium. They face charges of money-laundering and fraud.

France | Jeff Koons and the Centre Pompidou in Paris are liable for copyright infringement regarding Koons’ sculpture “Naked,” which was found to be similar to a photography by Jean-Francois Bauret. The Paris court of appeals upheld and confirmed the lower court’s finding that this amounted to plagiarism. CA Paris, 17 décembre 2019, RG 17/09695.

France | A French court of appeals ruled that a fax message sent by an interested buyer to an auctioneer was sufficient to express the former’s intention to purchase. While the buyer contested the sale because he did not formally express the purchase order, the judges relied on a series of factors, including that the buyer had been contacted during the auction, that he was the highest bidder, and that he did not contest the sale for more than 2 years. CA Rennes, 22 octobre 2019, RG 16/08134.

Monaco | Swiss art dealer Yves Bouvier was cleared of the criminal charges of fraud and money laundering pending against him in a Monaco court. This is one of many lawsuits brought by Russian oligarch Dmitri Rybolovlev who alleges that Bouvier defrauded him of $1 billion over the course of 38 deals, by misrepresenting the purchase price of artworks. He is still claiming redress in the US, London, Paris, and Geneva. Bouvier’s lawyers stated that “all investigations were conducted in a biased and unfair way without the defendant being in a position to retrospectively redress these serious anomalies that permanently compromised the balance of rights of the parties.”

Poland | Art historian Tomasz Kitli?ski is being sued for defamation by Polish governor and incoming parliamentary representative Przemys?aw Czarnek. Kitli?ski had commissioned the artist Dorota Nieznalska to create the installation Judenfrei that refers to the Nazi term for areas “cleansed” of Jews. Czarnek publically dismissed Judenfrei as being anti-Polish and demanded its removal. Kitli?ski stood his ground and posted a protest letter online that started: “The governor of Lublin Region prides himself in offending Ukrainians, Muslims, the LGBT community and women, for whom he sees no social role other than the reproduction of children.” Under Polish criminal law, Kitli?ski may face a two-year prison sentence for slandering a public official.

UK | After Picasso’s “Bust of a Woman” (1944), the portrait of his muse Dora Maar, was defaced at the Tate Modern, authorities apprehended Shakeel Ryan Massey who is denying the charges and is scheduled to appear for a pre-trial hearing at the end of January.

UK | Sotheby’s has settled the case over a forged Frans Hals painting, “Portrait of a Gentleman,” which the auction house had sold privately before suspecting it was a fake and repaid its buyer. The consignor, art dealer Mark Weiss, will reimburse Sotheby’s for the lost sale. The High Court did not weigh in on the authenticity of the painting.

From the February 2020 Newsletter

United States

Philipp et al. v. Federal Republic of Germany et al., 894 F.3d 406 (D. D.C. 2018). The U.S. Supreme Court has delayed its decision on whether to hear an appeal brought by German state museums regarding the proper ownership of the Guelph Treasure, which is estimated to be worth at least €200 million. The treasure is claimed by the descendants of a group of Jewish art dealers in Germany, who transferred the works in 1935 to a Nazi-controlled bank for a fraction of their worth in a “genocidal taking” during the Holocaust. The Guelph Treasure is currently in Berlin’s Kunstgewerbemuseum, which claims that there had been no forced transaction and that the Treasure should remain at the Berlin museum. The case was brought in the U.S., based on the defendant’s commercial activity within the U.S., to which the defendants replied that, as a foreign state agency, it cannot be sued in United States courts, in accordance with the Foreign Sovereign Immunities Act. The case was nonetheless heard in the district court of the United States. In the appeal to the Supreme Court, the defendants argued that the lower court’s ruling “dramatically expanded the jurisdiction of U.S. courts to hear claims against foreign nations for alleged human rights violations that occurred entirely abroad.” Consequently, the U.S. Supreme Court delayed its decision on whether to hear the appeal. Petition for Writ Of Certiorari available here.

Munro v. Fairchild Tropical Botanic Garden, Inc. et al, No. 1:2020cv20079 (S.D. Fla. Jan. 1, 2020). U.K. artist Bruce Munro filed suit against the Fairchild Tropical Botanical Gardens in Miami for copyright infringement. Munro claims that the Garden’s holiday illuminations, supplied by the Chinese company G-Light, represented “intentional copying” of his immersive light installation “Forest of Light,” which was displayed at Longwood Gardens in the U.K. in 2012. Complaint available upon request.

Clark v. Castor and Pollux L.L.C., 2019 N.Y. Misc. LEXIS 1638 (N.Y. Sup. Ct. 2020). Artist Lala Abaddon has been awarded $266,500 in a dispute with the owners of the now-closed Castor Gallery. In April 2019, Abaddon brought suit under N.Y. Arts & CultAff. § 12.01, after the gallery owners refused to pay for her sold works and threatened to burn her unsold works. The owners claimed that they were owed for the costs of organizing the artist’s show. Decision available upon request.

Zuckerman v. Metro. Museum of Art, 928 F.3d 186 (S.D.N.Y. 2019), petition for cert. filed (Jan. 24, 2020) (18-634). Laura Zuckerman has filed a petition for certiorari, requesting that the U.S. Supreme Court evaluate the legal ownership of Picasso’s the “Actor,” currently owned by the Metropolitan Museum of Art. Zuckerman, is the great grand-niece of the Jewish owners of the painting (the Leffmanns) who sold the piece in 1937. The Leffmanns sold “the Actor” at a reduced price, in order to finance their flight from Italy to Switzerland. The Metropolitan Museum asserts that the family had waited too long to assert their rights, whereas the plaintiff claims that a six-year statute of limitations applies, per the Holocaust Expropriated Art Recovery Act of 2016 (HEAR Act). The case was dismissed by the Second Circuit, based on the doctrine of latches, and the plaintiff now petitions the U.S. Supreme Court to review whether the state doctrine of latches would trump the federal HEAR Act. Read our case review here. Petition for Writ Of Certiorari available here.

Sweet Cicely Daniher v. Rae et al., No. 5:20-cv-00612-NC (Cal. N.D. filed Jan. 27, 2020). San Francisco artist Sweet Cicely Daniher is suing Pixar, Disney, and producer Kori Rae for copyright infringement, alleging the defendants copied her “tremendously cool” van featuring a unicorn in the upcoming animated movie, Onwards. The plaintiff had previously rented her “Vanicorn” to the defendants, only to find out that they designed a similar-looking version for the movie, replacing the unicorn with a Pegasus. The artist claims the producer called her to apologize for the theft, but only after they had already made merchandise and toys featuring the van. She is claiming damages that will largely depend on the revenue from the film. Complaint available upon request.

Tananbaum v. Gagosian Gallery, Inc. et al., No. 651889/2018 (NY Sup. Ct.). The lawsuit brought by collector Steve Tananbaum against the Gagosian Gallery over the delayed delivery of three sculptures by Jeff Koons has been settled. In August 2019, a New York state supreme court judge had ruled against the defendant’s motion to dismiss based on Gagosian’s breach of contract and the New York Arts and Cultural Affairs Law.

Guzzini Properties Ltd., v. “Untitled by Rudolf Stingel, 2012,” in Rem, No. 656467/2019 (NY Sup. Ct. filed Jan. 31, 2020). In October 2019, the art-collecting entity Guzzini filed a lawsuit against Inigo Philbrick for the return of a portrait of Pablo Picasso by Rudolf Stingel, alleging that Philbrick had consigned the work without the Plaintiffs’ consent or knowledge. In late January 2020, collector Andre Sakhai has submitted an affidavit as part of that lawsuit, claiming that he entered into a deal with Philbrick to buy a Wade Guyton work, and that, similar to Guzzini’s claims, he later discovered the dealer had sold the work without his knowledge. Sakhai is seeking to intervene in the lawsuit and to temporarily restrain the disposition of the work. Affidavit and memorandum of law available here or upon request.

International

Germany | Angela Gulbenkian has been accused of fraudulent art dealing and now has two criminal and civil charges pending against her. The first complaint was filed in March 2018 in the U.K., when Mathieu Ticolat claimed to have paid $1.4 million for a Yayoi Kusama pumpkin sculpture that was never delivered. The second complaint was filed in January 2020 in Munich, Germany on behalf of an anonymous London art dealer who sold and delivered an Andy Warhol “Queen Elizabeth II” print for $151,000 to Gulbenkian, who failed to pay the art dealer. The U.K. trial against Gulbenkian’s art dealing is scheduled for March 2020 and the German trial is scheduled for May 2020.

India | Subodh Gupta, a leading Indian artist, filed a defamation case in Delhi High Court against the Instagram account @herdsceneand, requesting posts regarding sexual harassment allegations against him to be taken down and seeking approximately £500,000 in damages to his reputation and career. The Delhi High Court ordered Google and Instagram to remove a number of URLs and posts relating to the defamatory content against Gupta, which garnered significant attention in the international press because many viewed this decision to be a violation of freedom of speech and information laws under the Indian constitution. The court ruled that whether @herdsceneand will be allowed to maintain their anonymity will be decided at a later date.

Netherlands | A lawsuit has been filed by descendants of a Jewish art collector seeking the restitution of Wassily Kandinsky’s “Painting with Houses (Bild mit Häusern)” (1909) from a museum owned by the city of Amsterdam. The heirs contest the Netherlands’ Advisory Committee on the Assessment of Restitution Applications’ finding that there was no evidence that the painting, purchased by the museum in 1940 for the equivalent of €1,400, was sold under duress during the Nazi occupation.

Spain | Jaime Botin, heir to Santander Bank, was sentenced to 18 months in prison and fined €52.4 million. Botin attempted to remove Picasso’s “Head of a Young Woman” from Spain on his yacht. This was in violation of Spain’s heritage laws, which require permits for exporting ‘national treasures’ which are more than 100 years old.

UK | The Rijksmuseum Twenthe in Enschede, the Netherlands, is suing art dealer Simon Dickinson before London courts after hackers infiltrated a sales deal between the parties and convinced the Museum to transfer $3.1 million into a Hong Kong bank account. The Museum argued that the dealer was negligent in preventing the fraud and that his team was “aware of emails between the museum and the hackers, but did nothing to stop the transaction.” The court has rejected the negligence claim but allowed the Museum to amend its claims. Ownership of the painting, John Constable’s “A View of Hampstead Heath: Child’s Hill, Harrow in the Distance” (1824) is still undecided.

From the March 2020 Newsletter

United States

Oliver v. Boone et al., No. 1:2020-cv-00332 (S.D.N.Y. Jan. 14, 2020). New York Art dealer, Mary Boone, is facing a lawsuit brought by her former associate, James Oliver. Last Spring, Boone was sentenced to 30 months in prison for filing false tax returns and using $1.16 million in gallery funds for personal expenses. The suit filed by Oliver on January 14, 2020 in the Southern District of New York, alleges that Oliver is due unpaid wages and that Boone “misappropriated” funds from $10 million in art sales. Oliver claims the Boone instructed buyers to transfer money directly into her personal account and that he did not receive the 10% share of the profits to which he was entitled as part-owner of the gallery. Complaint available upon request.

Morgan Art Foundation Limited, et al. v. Brannan, No. 18-CV-8231, 2020 U.S. Dist. LEXIS 14043 (S.D.N.Y. Jan. 28, 2020). The Southern District of New York dismissed four claims made by James W. Brannan, personal representative of Robert Indiana’s estate, against the Morgan Art Foundation (“MAF”). MAF provided the court with two agreements with Indiana, which proved that the artist gave the Foundation copyright and trademark rights to all images and sculptures Indiana produced between 1960 and 2004, including the iconic LOVE and HOPE sculptures. Opinion available here.

Robert Blumenthal Gallery, LLC v. Derek Fordjour, No. 650795/2020 (N.Y. Sup. Ct. Feb. 4, 2020). Art dealer Robert Blumenthal has filed suit against the artist Derek Fordjour, claiming that 6 years ago, he prepaid $20,000 for 20 of the artist’s works but only received 13 of them. The artist has skyrocketed in popularity in the intervening years, with his work selling for up to $169,293. Blumenthal, who paid $1,000 per painting, is seeking $1.45 million in damages, alleging breach of contract and unjust enrichment. Complaint available here.

BoxNic Anstalt v. Gallerie Degli Uffizi, No. CV-18-1263-PHX-DGC, 2020 U.S. Dist. LEXIS 18761, 2020 WL 570945 (D. Ariz. Feb. 5, 2020). The Arizona District Court has ruled that third parties are not allowed to use the Uffizi Gallery’s name in their domain names. The defendant, BoxNic Anstalt, was using such sites including Uffizi.com and Uffizi.net, to confuse visitors into believing that they were visiting the official museum website and into buying tickets at inflated prices. Decision available upon request.

Silver v. Alon Zakaim Fine Art Ltd., NY Slip Op 00978 (N.Y. App. Div. Feb. 11, 2020). The First Appellate Division of New York upheld a ruling in favor of Rick Silver, as he sought the return of Marc Chagall’s “Bouquet de Giroflees” from a group of London galleries. Silver alleged that, after the painting was purchased from the Chowaiki & Co. Gallery, the gallery’s owner, Ezra Chowaiki, fraudulently induced Silver to consign the painting back to the gallery. Silver alleged that Chowaiki then consigned the work to others, used the painting as collateral, and sold shares in the painting to the aforementioned London Galleries without Silver’s consent and without sharing the proceeds. Silver further asserts that subsequent buyers of shares in the painting are not bona fide purchasers for value, as they did not carry out even basic measures to ascertain if the painting was available for sale, such as performing a UCC Lien Search. The Appellate Division dismissed jurisdictional issues and allegations that there were not sufficient “red flags” to warn the galleries about liens on the piece, increasing the likelihood that the painting will eventually be returned to Silver. Decision available upon request.

Meaders v. Helwaser, No. 1:2018cv05039 (S.D.N.Y. 2020). A judge has resolved a dispute over a sculpture by Alexander Calder, originally gifted to his lawyer, Paul L. Meaders, Jr. The sculpture passed to his wife, Jane, upon Mr. Meaders death. Upon Jane’s death, her son (Paul Meaders III) was named as executor to the estate, while Jane’s tangible property passed to both her son and her daughter,Phyliss. After their mother’s death in 2001, Paul took possession of the sculpture and sold it to Helwaser Gallery in 2016. Phyliss contested the sale, which she believed she had the right to do as part owner. Summary judgment was granted on the grounds that Phyliss had not sufficiently established that she was part owner of the work. Decision available upon request.

Castillo v. G&M Realty L.P., Nos. 18-498-cv (L), 18-538-cv (CON), 2020 U.S. App. LEXIS 5228 (2d Cir. Feb. 20, 2020). Putting an end to a 7-year long dispute over the whitewashing of the Long Island City-based “graffiti mecca” known as 5Pointz, the U.S. Court of Appeals for the Second Circuit upheld Hon. Frederick Block’s February 2018 ruling for the District Court for the Eastern District of New York. Judge Block awarded $6.75 million in statutory damages to 21 aerosol artists whose works were destroyed without prior notice by the owner of the building where the artists had been authorized to create for a decade. Read our case review here.

International

France | Artist and Russian dissident, Pyotr Pavlensky, has released a pornographic video that he claims features French politician Benjamin Griveaux, who was running for the office of mayor of Paris. Pavlensky claims that he plans to create a “political porn” website to expose “political hypocrisy.” Pavlensky and his partner, Alexandra de Taddeo, have been indicted on charges of “invasion of privacy” and “dissemination without the consent of the person [involved] of sexual images,” Griveaux has since dropped out of the mayoral race.

France | A recent French Supreme Court ruling upheld an archaic 19-century law where any woman who bares her breast in public, regardless of her motivation––political, artistic or otherwise–– can be charged with “sexual exhibitionism.” On February 26, 2020, the court overturned the Paris Court of Appeals’ decision and confirmed Iana Zhdanova’s charge of sexual exhibition after she led a “Femen” topless protest performance at a museum in Paris. C. Cass, Arrêt n°35 du 26 février 2020 (19-81.827)available here (French).

Germany | A German court dismissed a complaint against the German government-run database of Nazi-looted art, lostart.de. The court held the current possessor of a work cannot prevent claimants from listing works in the database, as the listing does not constitute the assertion of a claim of ownership. This decision comes in response to a suit by Wolfgang Peiffer, who unknowingly bought a painting which had been sold under duress by the Jewish art dealer Max Stern when he was forced to flee Germany.

Germany | Local Jewish committee member, Michael Düllman, brought an action against St. Mary’s Church in Wittenburg, Germany, seeking removal of “Judensau” from the church’s wall. The 700-year old sculpture carved into the wall depicts a rabbi lifting a sow’s tail to peer at its behind while Jewish children suckle on a pig’s teat. Düllman claimed “Judensau” is “defamatory” and “an insult to the Jewish people.” On February 4, 2020, a German court ruled that “Judensau” did not constitute an offense and may remain there. Düllman will appeal his case in Germany’s Federal Court of Justice and said he was prepared to take his claim to the European Court of Human Rights.

Spain| Spanish billionaire Jaime Botín, grandson of the founder of Santander SA Bank, has been sentenced by a Spanish Judge to 3 years in prison and fined $101 million dollars. The sentence was revised from the original 18 months in prison and a $58 million fine. In 2015, Picasso’s “Head of a Young Woman” was seized from Botin’s yacht off the coast of France. Botin removed the painting from Spain, despite an administrative ban forbidding him from taking it out of the country.

From the April 2020 Newsletter

United States

Tarducci v. Coates, No. 1:2020-cv-00069 (D. R.I. Feb. 11, 2020). Artist Mia Tarducci is suing gallery owner Kristen Coats for copyright infringement. Tarducci consigned several to her paintings to Coats’ Bellvue Gallery in Newport, RI in 2016. Later, Tarducci noticed very similar works for sale on Coates’ website, purporting to be Coate’s own work. The complaint was filed in February of 2020. Complaint available upon request.

The Estate of Ana Mendieta Collection, LLC v. Sotheby’s, Inc., No. 1:20-cv-01841 (S.D.N.Y. filed on Mar. 2, 2020). The Estate of Ana Mendieta Collection, LLC (“the Estate”) filed a complaint against Defendants Edward Meringolo and Sotheby’s, Inc. for replevin and conversion, demanding the return of a photograph by Ana Mendieta, titled Guanaroca – Esculturas Rupestras (“the Photograph”). After Mendieta’s death, her sister, Raquelin Mendieta, formed the Estate. Upon creating an inventory of the deceased’s artwork, Raquelin discovered that the Photograph was missing and that it had been consigned with Sotheby’s, Inc. by Meringolo without any documentary evidence that he was a good faith purchaser or that Ana Mendieta had gifted or sold the Photograph. The Estate is asking the Defendants to immediately return the Photograph to them, at the sole cost and expense of the Defendants, and also requests that Defendants pay reasonable attorney fees.

Zuckerman v. Metro. Museum of Art, 928 F.3d 186 (2nd Cir. 2019), petition for cert. denied (Mar. 3, 2020) (18-634). In the dispute over the ownership of Picasso’s “The Actor”, the Supreme Court refused to grant certiorari requested by the heirs of the Jewish owners of the painting, which is now in the possession of the Metropolitan Museum of Art. The case was dismissed by the Second Circuit in 2019, based on the doctrine of latches, and the plaintiff petitioned the U.S. Supreme Court to review whether the state doctrine of latches would trump the federal the Holocaust Expropriated Art Recovery Act of 2016 (HEAR Act). Read our case review here. Petition for Writ Of Certiorari available here.

United States v. Righter, No. 2:220-cr-00131 (C.D. Cal. Mar. 10, 2020) and No. 1:2019-cr-20370 (S.D. FL. Mar. 16, 2020). Philip Righter has pled guilty to selling fake artworks by artists including Warhol, Basquiat, Haring, and Lichtenstein. Righter also used the works as collateral for loans on which he later defaulted. The total fraud damages are estimated at $6 million, in addition to $100,000 in lost government revenue as a result of falsely filed tax returns. Righter faces up to 25 years in prison, pursuant to his plea agreement with the Los Angeles Federal Court. The plea agreement is available here. Righter faces additional charges in Florida related to his illegal conduct while running a Florida Art Gallery. His plea agreement in Florida is pending.

In re P8H, Inc., Docket No. 1:2020bk10809Petition No. 20-10809-smb (Bankr. S.D.N.Y. Mar. 16, 2020). Online auction house Paddle8 has filed for Chapter 11 bankruptcy in New York, just one week after suit was brought against them by the nonprofit, New American Cinema Group. New American alleges that the online auction house failed to remit them the funds earned from a charity auction held last November. Paddle8’s creditors also include celebrities such as Justin and Haley Bieber, who claim that they are owed $73,000, and Jay Z’s Shawn Carter Foundation, which claims to be owed $65,000.

Oliver v. Meow Wolf, Inc et al., No. 1:20-cv-00237-KK-SCY (D.N.M. Mar. 16, 2020). ArtistLauren Adele Oliver claims that her piece, Space Owl, helped Meow Wolf become a multi-million dollar enterprise, but that she hasn’t been properly credited or remunerated. Oliver alleges that the company promised her an “artist revenue share,” and she only received $2,000 for her work, which is less than the cost to produce and install the piece. Additionally, Oliver is also suing for copyright infringement after she asked the company not to use Space Owl for promotional purposes until an agreement was in place and, nevertheless, the company prominently featured Space Owl in a trailer for Meow Wolf’s self-made documentary.

Art Ask Agency v. Parties Identified on Schedule A, No. 1:20-cv-01666 (N.D. Ill. Mar. 18, 2020). The Northern Division of Eastern Illinois District Court denied Art Ask Agency’s motion for temporary restraining order against counterfeiters in China who are selling accessories with artist Anna Stokes’ licensed unicorn designs. Art Ask Agency’s claim was denied because it made no showing of an estimate of anticipated loss sales due to the counterfeit. Order available here.

Robert Blumenthal Gallery, LLC v. Derek Fordjour, No. 650795/2020 (N.Y. Sup. Ct. filed on Mar. 19, 2020). In the lawsuit brought by art dealer Robert Blumenthal against artist Derek Fordjour, based on Plaintiff’s allegations that the artist has failed to deliver commissioned artworks, Defendant has filed a motion for summary judgment. Defendant’s filings also demand that all the works he allegedly gave to Blumenthal on consignment now be returned. Complaint available here and motion available upon request.

Allen v. Cooper, No. 18-877, 2020 U.S. LEXIS 1909 (Mar. 23, 2020). The United States Supreme Court has held that videographer Frederick Allen may not bring suit against the state of North Carolina for unauthorized use of his copyrighted material. In 1996, the Queen Anne’s Revenge, flagship of the infamous pirate Blackbeard, was discovered off the coast of Beaufort, North Carolina. The state of North Carolina used Allen’s copyrighted photos and videos of the efforts to recover the ship on their website without his permission. With this decision, the Supreme Court has confirmed that states have sovereign immunity and cannot be sued based on federal copyright claims. The opinion is available here.

Solid Oak Sketches, LLC v. Visual Concepts, LLC et al, No. 1:16-cv-00724 (S.D.N.Y. Mar. 26, 2020). In 2016, tattoo company Solid Oak Sketches (“Plaintiff”) sued Take-Two Interactive (“Defendants”), a video game publisher, for unauthorized reproduction of its tattoo designs on LeBron James and two other NBA players. The Southern District Court of New York held that Defendants’ use of the Tattoos in the challenged versions of their video game is de minimis and fair use and therefore does not infringe Plaintiff’s copyrights. The court also noted that “tattooists necessarily granted the Players nonexclusive licenses to use the Tattoos as part of their likenesses.” Decision available here.

International

Brazil | Brazilian collector and mining company owner, Bernardo Paz, has been cleared of money laundering charges under the federal appeals court in Brazil. In 2017, Paz was sentenced to jail for nine years and three months for money laundering related to the Instituto Inhotim, which was a museum and sculpture park founded by Paz in 2006. Paz allegedly used $98.5 million in funds deposited to Horizonte, a company which was set up to benefit the nonprofit Instituto Inhotim, to pay for the expenses and debts related to Paz’s mining business, rather than support the museum. Paz has been acquitted of all charges.

India | The Instagram account @HerdSceneAnd has taken a stand against sexual harassment in the Indian art world by publishing anonymous accusations that artist Subodh Gupta and several other prominent men in the south Asia art scene have sexually harassed women. Gupta sued the Instagram account for defamation, raising concerns from Google, Facebook, and the Indian Journalist Union, who argued that this case would have a chilling effect on free speech in India. Although the parties settled outside of court, the Indian court allowed @HerdSceneAnd to keep up the posts and the account is still active.

From the May 2020 Newsletter

United States

Manhattan District Attorney Cyrus R. Vance has struck a deal with Christie’s, putting an end to an investigation into the auction house’s violations of the New York Tax Law and New York Penal Law. The latter will pay up to $10 million in fines to the State of New York for failing to collect New York and local sales tax between 2013 to 2017. Press Release available here.

Farrington v. InfoWars, LLC, No. 1:2020-cv-00332 (W.D. Tex. Mar. 26, 2020). Brooklyn photographer William Farrington is suing Alex Jones’ website InfoWars, alleging that the latter used, without permission or credit, a picture taken by Farrington depicting emergency medical technicians attempting to revive convicted sex offender Jeffrey Epstein after he committed suicide in his cell at the Metropolitan Correctional Center. Farrington is claiming copyright infringement and his right to refrain others from using his work without consent. Complaint available upon request.

AM General LLC v. Activision Blizzard, Inc. et al., No. 1:2017-cv-08644 (S.D.N.Y. Mar. 31, 2020). Video company and Call of Duty maker Activision has prevailed in the trademark dispute brought by AM General, the government contractor for the High Mobility Multipurpose Wheeled Vehicle (colloquially known as “Humvees”). New York federal judge ruled that Activision had a First Amendment right to depict contemporary warfare in its game, and that the use of the Humvees by the Defendant has some artistic relevance. Opinion available here.

Sinclair v. Ziff Davis LLC, and al., No. 1:18-cv-00790 (S.D.N.Y. Ap. 13, 2020). In the case between photographer Stephanie Sinclair and news media Mashable, the Southern District of New York, on a motion for summary judgment, ruled that Instagram public users agree to a de facto license, via the platform’s Terms of Use, which allows others to embed one of their public posts onto a website without infringing on the creator’s copyright. Opinion available here.

Christie’s Inc. v. Turner et al., No. 1:20-cv-03146 (S.D.N.Y. filed on Ap. 20, 2020). In 2018, the Debra L. Turner entered into a consignment contract with Christie’s auction house for a work by Peter Paul Rubens, entitled “A Satyr holding a Basket of Grapes and Quinces with a Nymph.” The work was sold for nearly $6 million to Sean Parker, Facebook first President, but the consignor claimed she had withdrawn the painting from auction before its sale. On April 20, Christie’s filed a petition in Manhattan Federal Court to affirm an arbitrator’s ruling that Christie’s complied with its contractual obligations and that the successful bidder had lawfully acquired the painting. The Parker Foundation will keep the art piece and Turner will keep the proceeds.

Pindell v. N’Namdi et al., No. 1:2020-cv-00818 (S.D.N.Y. Ap. 21, 2020). Artist Howardena Pindell has filed a complaint in federal court against her former gallery, seven of its related entities, and a collector, accusing them of lying to her about sales of her works, failing to pay her, and refusing to return artworks upon her request. The complaint alleges replevin, conversion, and violation of various artist-gallery consignment statutes, including New York Art & Cultural Affairs Law and the Illinois Consignment of Art Act. Amended complaint dated April 2020 available upon request.

Morgan Art Found. Ltd. v. McKenzie et al., No. 1:18-cv-04438-AT (S.D.N.Y. filed on Ap. 27, 2020). In the ongoing legal dispute between the Morgan Art Foundation (“MAF”), which holds the copyright and trademark rights to all images and sculptures produced by late artist Robert Indiana, against his estate, his former art dealer Michael McKenzie and his company American Image Art (“AIA”), the latter filed an amended answer with counterclaims against MAF for what the defendants’ attorney is calling “one of the most massive art frauds in history.” The claims are based on the fact that Indiana’s LOVE was created before 1965, falling under the purview of the 1909 Copyright Act requiring authors to affix to his/her art a notice of Copyright prior to publication, or else the intellectual property rights would be abandoned. AIA is arguing that Indiana has failed to do so and that the LOVE sculpture is in the public domain, making the 1999 assignment to, and subsequent licensing by, MAF invalid. Amended answer available upon request.

International

France | The Paris Court of Appeals confirmed the lower court’s ruling that a company did not fail to care, preserve, and restore 121 bronze sculptures in their custody after they were vandalized. In particular, the court relied on the fact that the company would have had to spend half a million euros to restore the works, and said that “an author’s right of integrity does not justify ordering the owner of the tangible work to protect such work against change and to preserve it under unreasonable conditions.” CA Paris, March 10, 2020, No. 18/08248.

India | The Indian police charged a cyber-scammer who tried to list the world’s largest statue, the 600-foot-tall monument Statue of Unity located in India, for $4 million under the false pretense of raising funds for coronavirus relief.

From the June 2020 Newsletter

United States

Silvain v. Christie’s Inc., No. 5:20-cv-01608 (N.D. Cal. filed on Mar. 4, 2020). Christian Silvain, a self-taught artist based in Belgium, acquired proper copyright registration for a number of his artworks. But, Ye Yongqing, an artist based in China, made a number of paintings in a style identical, or at least very similar, to Silvain’s style. Christie’s auction house appraised, offered for sale, and sold Yongqing’s artworks that ostensibly infringe Silvain’s copyrighted artworks. Silvain has filed a complaint against Christie’s for contributing to the infringement of—or inducing others to infringe—Silvain’s copyrighted artworks. Silvain seeks to recover actual damages and profits made by Christie’s through the sale of Yongqing’s artworks. Silvain’s attorney reported that the parties are discussing a settlement.

Robert Blumenthal Gallery, L.L.C. v. FordjourNo. 650795/2020 (N.Y. Sup. Ct. filed Feb. 4, 2020). In 2014, art collector and dealer Robert Blumenthal agreed to pay then up-and-coming artist Derek Fordjour $20,000, if Fordjour made him a “fair deal”. The final deal included fifteen paintings and five works on paper to be delivered over the course of five months. Blumenthal is now suing Fordjour, alleging that he has not delivered seven of the twenty pieces. Blumenthal seeks the remaining seven pieces or, alternatively, $1.45 million. In the motion to dismiss the complaint filed on May 5, 2020, Fordjour concedes that he has not delivered five of the pieces. But, Fordjour’s lawyer has reported, “[t]his was a predatory relationship, and New York law protects artists against predatory practices by art dealers.”

Meyer v. SeidelNo. 2:19-cv-09786 (C.D. Cal. May 5, 2020). In late 2019, Universal Studios executive and art collector, Ron Meyer, sued art advisor Susan Seidel, in California state court. The suit stemmed from a 2001 transaction in which Meyer bought a Mark Rothko artwork from Seidel for about $1 million. Meyer kept the artwork until 2019 when he learned that it was not made by Rothko, but was created by the same artist involved in the Knoedler forgeries. On May 5, 2020, the Central District of California granted Seidel’s motion to transfer the case to the Southern District of New York. The transfer represented an initial victory for Seidel, as well as the concept that the forum in which a dispute is litigated must serve the interests of justice. In this case, a New York forum is more likely to serve the interests of justice than a California forum for numerous reasons, including that the Southern District of New York had a stronger public interest in adjudicating the dispute. The transfer in this case will likely provide guidance to other litigants seeking to transfer a case to a more appropriate forum.

Bich v. Bich, No. 2020-0359 (Del. Ch. filed May 12, 2020). CollectorBruno Bich alleges that his estranged wife, Veronique Bich, refuses to return more than 28 artworks from his family’s multimillion dollar collection. The artworks include Picasso’s 1937 “Portrait of Dora Maar”, Balthus canvases, Giacometti sculptures, and other blue-chip artworks belonging to a trust established by Bruno’s father, Marcel Bich, of which Veronique has never been a beneficiary. Despite Bruno’s repeated requests, Veronique refuses to return the artworks, arguing that they will be subject to distribution in a separation agreement, which Veronique has sought since 2017. Bruno requests that the state declare the trust the rightful owner of the art and issue an injunction preventing Veronique from keeping, selling, or otherwise disposing of the art. Complaint available upon request.

United States v. One Cuneiform Tablet Known as the “Gilgamesh Dream Tablet”No. 1:20-cv-02222 (E.D.N.Y. filed May 18, 2020). The United States has filed a civil complaint to forfeit an ancient Mesopotamian cuneiform tablet bearing part of the Epic of Gilgamesh, c. 1600 BC. The tablet was stolen from Iraq and imported into the United States in violation of federal law, which prohibits the sale of stolen antiquities and the importation of antiquities from Iraq after 1990. Law enforcement agents seized the tablet from the Museum of the Bible in September 2019, and the United States now intends to return the tablet to Iraq. The civil complaint reflects the mission of the Cultural Property, Arts and Antiquity Investigations program–a program under Homeland Security Investigations, New York– to combat the looting of antiquities and ensure that those involved in looting are held accountable. The civil complaint to forfeit implies serious wrongdoing on the part of dealers, antiquities experts, and prominent auction houses.

Hobby Lobby Stores, Inc. v. Christie’s Inc.No. 1:20-cv-02239 (E.D.N.Y. filed May 18, 2020). In 2014, Christie’s auction house sold an ancient Mesopotamian cuneiform tablet bearing part of the Epic of Gilgamesh, c. 1600 BC, to Hobby Lobby Stores, Inc. for display at the Museum of the Bible. Despite inquiries, Christie’s allegedly withheld information about the tablet’s provenance. In September 2019, law enforcement agents seized the tablet from the Museum in Washington, D.C., claiming that the tablet was stolen from Iraq and imported into the United States in violation of federal law. Hobby Lobby is now suing Christie’s for fraud and breach of express and implied warranty. The suit claims that, during the 2014 private sale, Christie’s assured Plaintiff that the consignor of the tablet was legally entitled to sell, although Christie’s allegedly knew that the tablet’s provenance was false.

Venus Over Manhattan Art, L.L.C. v. 980 Madison Owner, L.L.C.No. 1:20-cv-03838 (S.D.N.Y. filed May 18, 2020). Adam Lindemann, a New York investor and gallerist, is suing real estate mogul Aby Rosen to terminate a lease on 980 Madison Avenue in New York City. Lindemann claims that, due to the COVID-19 pandemic, he can no longer operate his gallery, Venus Over Manhattan, and that he should be excused from fulfilling his lease because of New York Governor Andrew Cuomo’s Executive Order to close all non-essential businesses. Lindemann relies on the doctrines of frustration of purpose and impossibility of performance to justify his premature termination of his lease. Lindemann has withheld rent payments from April onward, and he now seeks return of his $365,000 security deposit and reimbursement of legal fees.

Steadfast Insurance Co. v. T.F. Nugent Inc.No. 1:20-cv-03959 (S.D.N.Y. filed May 21, 2020). In 2018, an employee of T.F. Nugent, which had been hired to paint Christie’s galleries ahead of an exhibition, left an extension rod for a paint roller leaning against a wall. The rod was not secured and fell, causing serious damage to Pablo Picasso’s 1943 self-portrait “Le Marin”, which was resting on foam pads against the wall in preparation for installation. The rod tore a four-and-a-half-inch hole in the canvas, diminishing its value by about $20 million. Casino mogul and art collector Steve Wynn then withdrew the canvas from auction. Now, Steadfast Insurance Co., the insurance company that reimbursed Christie’s after it paid Wynn, is suing the contractor for the paint roller accident that damaged the portrait. Steadfast Insurance Co. seeks $18.4 million in damages and legal fees from T.F. Nugent, a family-run commercial painting business.

Attorney Neal Sher Files IRS Complaint Against Whitney Museum of American Art. Earlier this month, New York attorney Neal Sher filed a complaint to the Internal Revenue Service (IRS) against the Whitney Museum of American Art. Sher sent the IRS a letter and an IRS Form 13909, a document for whistleblowers to report tax-exempt abuses. Sher seeks that the IRS revoke the Whitney’s nonprofit tax-exempt status on grounds that it allegedly “orchestrated and acquiesced in a concerted smear campaign” against its former vice chairman, Warren B. Kanders, following reports of the use of tear gas produced by Kanders’s company, Safariland Group, against Palestinian civilians in Gaza and consequent protests. Sher now claims that the Whitney engaged in a “transparently political agenda which had no relevance whatsoever to [its] charitable purpose.” In addition, Sher claims that the Whitney made a mockery of the public policy principles underlying tax-exempt statuses.

Noland v. JanssenNo. 1:17-cv-05452 (S.D.N.Y. June 1, 2020). The Southern District of New York has dismissed artist Cady Noland’s complaint regarding her Log Cabin Blank With Screw Eyes and Café Door (1990). Initiated in 2017, Noland’s suit argued that she authored a derivative work when she permitted a Defendant to stain and restore Log Cabin, located in Germany, sometime after VARA’s effective date and that the derivative work was entitled to copyright and VARA protection. In 2018, the suit was dismissed for failure to offer a basis for extraterritorial application of the copyright laws but allowing the artist to file an amended complaint. In June 2020, the court granted’s Defendants motion to dismiss the artist’s third amended complaint by establishing that Noland could not make out a claim for violation of her VARA rights in the United States or for copyright infringement. The Court explained that the derivative work would not terminate Noland’s copyright in her initial work. But, the Court held that Noland could not grandfather Log Cabin into VARA coverage through the derivative work because she was not its author. As for Noland’s claim of copyright infringement, the Court assumed that Log Cabin was entitled to copyright protection, but held that Defendant’s dissemination of photographs and plans in furtherance of Log Cabin’s sale constituted fair use.

International

Spain | Pilar Abel–a tarot card reader, fortune teller, and astrologist from Spain–filed a paternity suit in 2015, claiming that Salvador Dalí was her father. She sued the Spanish state and Dalí’s foundation, which inherited his estate when he died in 1989. In 2017, Abel won the right to exhume Dalí for hair, nail, teeth, and bone samples to be taken for a DNA test. The DNA results disproved her theory, and Abel filed an appeal claiming that the “chain of custody” in handling the remains had been interrupted. The court dismissed the appeal, and it ruled that Abel was liable for the costs of Dalí’s exhumation, estimated to be around €7,000 ($7,678).

UK | The UK Court of Appeals upheld the 2018 ban on ivory trading after ivory dealers tried to challenge the law. Antiquities traders the claim the Ivory Act should expand the narrow exceptions it affords to items that include minimal amounts of ivory. Currently, the maximum percentage of ivory allowed in objects made before 1947 is just 10%, with other standards applying to museums, which will still be allowed to acquire, own, and display objects made with ivory. Industry leaders will be able to take the case to the UK Supreme Court, but have expressed no upcoming plans to appeal the recent decision.

From the July 2020 Newsletter

United States

United States v. Philbrick, No. 1:20-MJ-04507 (S.D.N.Y. filed Apr. 30, 2020). On April 30, 2020, a complaint was filed in the Southern District of New York charging Inigo Philbrick, an art dealer specializing in post-war and contemporary fine art, with galleries in London, United Kingdom, and Miami, Florida, with engaging in a multi-year scheme to defraud various individuals and entities in order to finance his art business. In total, Philbrick allegedly fraudulently obtained more than $20 million as a result of the scheme. Philbrick, a fugitive since October 2019, was charged with one count of wire fraud, which carries a maximum prison term of 20 years, and one count of aggravated identity theft, which carries a mandatory prison sentence of two years. Philbrick appeared in federal court in Guam on June 15, 2020, and he is currently detained pending his removal to the Southern District of New York. A date for this appearance in Manhattan is yet to be set.

The Estate of Ana Mendieta Collection, LLC v. Sotheby’s, Inc. et al., No. 1:20-cv-01841 (S.D.N.Y. May 29, 2020). The Estate of Ana Mendieta brought an action for replevin and conversion against Edward Meringolo and Sotheby’s, Inc. Meringolo consigned a photograph by Ana Mendieta, titled Guanaroca (Esculturas Rupestres [First Woman Rupestrian Sculptures]), to Sotheby’s. The Estate demanded that the artwork be returned, but both Defendants refused, notwithstanding that no documentary evidence was presented to Sotheby’s that Meringolo was a good faith purchaser or that Mendieta had gifted or sold the artwork. The court entered judgment in favor of the Estate on the claim of replevin and closed the case. Sotheby’s was directed to return the artwork to the Estate.

Crowe v. Akron Art Museum, No. cv-2020-05-1605 (Ohio Ct. Com. Pl. filed May 29, 2020). Amanda Crowe, a former employee of the Akron Art Museum (“AAM[TB1] ”), filed suit against AAM and its former Executive Director Mark Masuoka. Two incidents occurred in early June 2019 in which Masuoka publicly accused Crowe of mismanaging an event and of exposing event participants to a potential health risk. In late June 2019, Crowe and a group of employees sent a letter to AAM’s Board of Trustees stating numerous claims of mismanagement, hostile work environment, harassment, and slander on the part of Masuoka. AAM’s legal counsel investigated, but AAM did not take action against Masuoka. In March 2020, Crowe was “laid off,” supposedly due to COVID-19. But, AAM then posted an opening for her position. In May 2020, Masuoka resigned from his position. Crowe then filed suit, alleging that she had undergone libel, slander, and defamation, as well as unlawful workplace retaliation and fraud.

McGucken v. Newsweek, LLC et al., No. 1:19-cv-09617 (S.D.N.Y. filed June 1, 2020). In mid-March of 2019, photographer Elliot McGucken posted his copyrighted photograph of an ephemeral lake that appeared in Death Valley, California to his public Instagram account. The next day, Newsweek published “Huge Lake Appears in Death Valley, One of the Hottest, Driest Places on Earth” to its website, embedding McGucken’s photograph. McGucken brought suit alleging that Newsweek infringed his copyright. On June 1, 2020, the Southern District of New York partially granted and partially denied Newsweek’s motion to dismiss. The court granted Newsweek’s motion to dismiss McGucken’s claims for contributory and vicarious infringement; however, the court denied Newsweek’s motion to dismiss McGucken’s claim of direct copyright infringement and McGucken’s request for enhanced damages.

Alverson v. Akron Art Museum, No. cv-2020-06-1676 (Ohio Ct. Com. Pl. filed June 8, 2020). Jenelle Alverson, a former employee of the Akron Art Museum (“AAM”), filed suit against AAM and its former Executive Director Mark Masuoka. Alverson alleged that Masuoka did not exercise reasonable care to correct and further prevent sexual harassment, gender discrimination, and retaliation that she experienced at AAM. In her complaint against AAM and Masuoka, Alverson asserted four causes of action: (1) gender discrimination, (2) hostile work environment, (3) retaliation, and (4) constructive discharge.

Gregory v. Governor of Virginia, No. CL20002441-00 (Va. Cir. Ct. filed June 8, 2020). A judge in Virginia issued an injunction halting the removal of a statue of confederate general Robert E. Lee in response to a pending lawsuit, which alleges that the statue cannot be removed due to a deed provision from 1830. The descendent of the original signatories to the deed is filing the suit, arguing that the state agreed to take care of the statue when the land it is positioned on was annexed by Virginia. This is the most recent debate concerning confederate statues and public art reminiscent of slavery and has forced many judges to recuse themselves, which has further delayed the statue’s removal.

Barnet et al. v. Ministry of Culture and Sports of the Hellenic Republic, No. 19-2171 (2d Cir. 2020). On June 9, 2020, the United States Court of Appeals for the Second Circuit ruled that the Foreign Sovereign Immunities Act (“FSIA”) does not provide jurisdiction over cases involving a sovereign’s protection of its cultural heritage. The Second Circuit ruled that Greece’s enactment and enforcement of patrimony laws are archetypal sovereign activities and, therefore, do not provide the requisite connection to commercial activity that would authorize suit under FSIA. The court reasoned, “nationalizing property is a distinctly sovereign act.” The Second Circuit held that private parties, on the other hand, cannot nationalize historical artifacts and regulate their export and ownership. As a result, the Second Circuit ruled in favor of the Ministry of Culture and Sports of the Hellenic Republic. Amineddoleh & Associates, LLC, representing the Ministry, said that the Second Circuit’s holding will “support foreign sovereigns and agencies in tracking down and preventing the sale of looted antiquities and cultural heritage items in the U.S.”

Restellini v. The Wildenstein Plattner Institute, Inc., No. 1:20-cv-04388 (S.D.N.Y. filed June 9, 2020). Marc Restellini, one of the most prominent Amedeo Modigliani experts, has been working on a catalogue raisonné of Modigliani’s work for the past several decades. He began his research in 1997, with the support of the Wildenstein Institute. In November 2016, art dealer Guy Wildenstein joined forces with art collector and technology entrepreneur Hasso Plattner to launch the Wildenstein Plattner Institute. As part of the merger, Wildenstein gifted Restellini’s papers to the new Wildenstein Plattner Institute. But, according to Restellini, the original Wildenstein Institute never obtained permission to transfer his materials, nor did the original Wildenstein Institute acquire rights to his materials. Restellini is now suing the Wildenstein Plattner Institute, claiming that it is unlawfully holding his original research and archival materials and that it intends to make the information public. Restellini alleges that the Institute violated his copyright and misappropriated his trade secrets. Restellini requests that the court order the Institute to refrain from publishing his research and destroy all digital copies.

United States v. Winbourn, No. 1:2019-cr-00510 (D. Col. June 12, 2020). Lonnie Shadrick Winbourn, 57, was sentenced to 12 months and one day imprisonment for violating the Archaeological Resources Protection Act. Winbourn stole 64 artifacts from the archeological Canyons of the Ancients National Monument in Colorado. Police officers found shards in his pocket when he was arrested on an unrelated warrant in 2017.

Athena Art Finance Corp. v. that Certain Artwork By Jean-Michel Basquiat Entitled Humidity, 1982, In Rem, No. 1:20-cv-04669 (S.D.N.Y. filed June 18, 2020). Athena Art Finance Corp. is a specialty lender that provides loans secured by high-value fine art. Athena made a loan to a borrower that was collateralized by Humidity (1982) by Jean-Michel Basquiat. The loan is now in default. As a result, Athena brings this complaint to sell the Basquiat in order to satisfy a judgment of $14,306,800.47, entered in its favor by the Supreme Court of the State of New York. The judgment and the explicit terms of the relevant loan and security agreement (“LSA”) between Athena and 18 Boxwood Green Limited, an entity owned by Inigo Philbrick, allow Athena to sell the Basquiat. Athena now seeks a declaration that it may sell the Basquiat without regard to outstanding claims from third parties purporting to hold some financial interest in the painting. On June 18, 2020, the case was removed from the Supreme Court of the State of New York to the Southern District of New York.

Taylor v. Governor of Virginia, No. CL20002624-00 (Va. Cir. Ct. filed June 17, 2020). In a case connected to the Robert E. Lee statue in Richmond, Virginia, six local residents of Monument Avenue seek to block the removal. The residents claim that Governor Ralph Northam does not have the authority to remove the statue. In addition, they argue that the removal would alter the avenue’s current designation as a National Historic Landmark, thereby reducing their properties’ value and favorable tax treatment.

V&A Collection, LLC v. Guzzini Properties Ltd., No. 1:20-cv-01797 (S.D.N.Y. filed Feb. 28, 2020). In June 2013, V&A Collection purchased a 50% interest in an artwork by post-conceptual American artist Wade Guyton. Since then, the Collection never sold, transferred, or otherwise disposed of its ownership interest. In October 2019, the Collection learned that Guzzini claimed to have purchased the artwork in a June 28, 2017 agreement with Inigo Philbrick Limited, owned by now-disgraced art dealer, Inigo Philbrick. The Collection notified Guzzini of its ownership interest, and Guzzini claimed to still own and have physical possession, custody, and control of the artwork. But, Guzzini recently revealed that its representations were untrue and that, in November 2019, Guzzini transferred title to a third party, who will not be disclosed. The Collection has brought suit to assert conversion claims against Guzzini for interfering with its ownership interest. On June 19, 2020, the Collection requested that the Southern District of New York direct the Clerk of Court to issue a summons to Guzzini, in order to allow the Collection to effectuate service through the Hague Convention and moot any service-related issues in connection with Defendant’s forthcoming dismissal motion. The same day, the court granted the Collection’s motion.

Howard University v. Borders et al., No. 1:20-cv-04716 (S.D.N.Y. filed June 19, 2020). Howard University is suing for the return of a drawing by African American artist Charles White, which vanished from Howard in the 1970s and was recently found at Sotheby’s. Larry and Virginia Borders consigned Centralia Madonna to Sotheby’s earlier this year, but the auction house determined that the drawing’s last documented owner was Howard. Sotheby’s contacted Howard, and it responded that it was the rightful owner of the drawing and demanded its immediate return. Howard filed suit in the Southern District of  New York two days later. The Borders now claim that they received the drawing as a gift from a close family friend, J.D. Kibler. According to the complaint, the Borders have no documentation of how Kibler acquired the work and cannot recall what J.D. stood for or his occupation. On June 22, 2020, the Borders filed a counterclaim, asserting that Howard unduly damaged their reputation and damaged the work’s prospects at auction with “false allegations.” The Borders are seeking a minimum of $100,000 in damages.

McGriff et al. v. City of Miami Beach et al., No. 1:20-cv-22583 (S.D. Fla. filed June 23, 2020). The American Civil Liberties Union (“ACLU”) of Florida is suing Miami Beach officials on behalf of artist Rodney Jackson and curators Octavia Yearwood and Jared McGriff. The suit stems from the removal of a painting memorializing Raymond Herisse, a Haitian-American who was fatally shot by Miami Beach police in 2011. The painting was exhibited in Reframe Miami Beach, a series of art installations commissioned by Miami to represent race and racial justice. The curators claim the painting was removed soon after it was installed at the order of the Miami Beach city manager, Jimmy Morales. Morales supposedly threatened to close the entire exhibition if the painting was not removed. The curators ultimately allege that Morales and Miami Beach mayor, Dan Gelber, violated their First Amendment rights, as well as the artist’s, through censorship of the painting.

Lipsky v. Spanierman Gallery, LLC et al., No. 154805/2020 (N.Y. Sup. Ct. filed on June 29, 2020). Visual artist Pat Lipsky brought an action under the New York Artist’s Authorship Rights Act (“AARA”), N.Y. Arts & Cult. Aff. Law § 14.03, “to stop the damage being done to her reputation by Defendants’ efforts to sell one of her major works.” In a reproduction of her a painting entitled Bright Music II (1969), the Plaintiff argues that the digitized image indicates that the work has become “damaged and soiled over time, likely due to moisture, mold, or mishandling” and that it “dulls the Work’s deep, vibrant colors, rendering it lifeless and entirely atypical of Lipsky’s oeuvre from this period.” Complaint available upon request.

Federal Republic of Germany, et al. v. Alan Philipp, et al., No. 17-7064 (D.C. Cir. 2018), cert. granted, No. 19-351 (U.S. July 2, 2020). On July 2, 2020, the Supreme Court agreed to hear Germany’s appeal in the case about the so-called Guelph Treasure. The collection, worth about $224.45 million, was sold to a group of Jewish art dealers in Germany in 1929. The heirs of the art dealers argued that, in 1935, the dealers were forced to sell the collection to the Nazi-controlled Prussian government in a “genocidal taking” by Hermann Goering, who presented it as a gift to Hitler. In a document filed in late May of 2020, U.S. Solicitor General Noel Francisco argued that the heirs failed to make a case, in accordance with the 1976 Foreign Sovereign Immunities Act (“FSIA”), that the collection was confiscated “in violation of international law,” since it was confiscated domestically. The Supreme Court will rule on two issues: (1) whether suits concerning property taken as part of the Holocaust are within the expropriation exception to the Foreign Sovereign Immunities Act and (2) whether a foreign state may assert what is known as a comity defense that is outside the FSIA’s “comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state.”

International

Indonesia | On June 4, 2020, the Estate of Chris Burden filed suit against the Indonesian attraction Rabbit Town and its owner, Henry Husada, in the Central Jakarta District Court. The estate alleged that Rabbit Town infringed upon Urban Light (2008), Burden’s permanent public art installation at the entrance to the Los Angeles County Museum of Art. Rabbit Town, opened in 2018 to channel the nation’s growing interest in “selfie tourism,” features Love Light, a lookalike of Burden’s Urban Light. The Indonesian installation is unlawful in the Estate’s eyes because Rabbit Town has charged admission and profited from the lookalike. The Estate reached out to Rabbit Town to resolve the issue, but Rabbit Town was unresponsive to the proposal of a post-facto license. The Estate then pursued legal action, retaining an Indonesian law firm to file the suit.

UK | UK art organizations, ranging from galleries to museums to sole traders, are preparing to file a class-action lawsuit against insurers who refuse to pay out claims. Insurers argue that the coronavirus pandemic is not considered a viable business interruption (“BI”), yet Rudy Capildeo of Charles Russell Speechlys, who is handling the case, claims that policies covering infectious disease were activated once COVID-19 was declared a notifiable disease on March 5, 2020. With a projected loss of 79% of their average annual income, many UK art organizations are relying on an insurance payout to survive. Despite the frequency of BI claims, many art dealers are not technically covered for losses incurred as a result of communicable diseases.

UK | London Police have issued an arrest warrant for art heiress Angela Gulbenkian after she missed her court date. She married the great-grandnephew of famed art collector and patron Calouste Gulbenkian. Gulbenkian stands accused of theft after having allegedly arranged fraudulent art deals, stealing $1.4 million from a Hong Kong-based art advisor.

France | The French High Court ruled that painting Pea Harvest, by Camille Pissarro, must be returned to the heirs of the Parisian collector Simon Bauer, from whom the painting was seized in 1943 under anti-semitic laws. The current owner, American collector Bruce Toll, plans to sue France in the European Court, arguing that the High Court’s judgment violates his ownership and defense rights. Toll claims he bought the work in “good faith” in 1995 at Christie’s, but the French Court upheld the terms of a 1945 order “annulling all acts of plunder that occurred under the German occupation.” According to Ron Soffer, Toll’s lawyer, France’s wrongdoings are central to the dispute, as the Bauer collection was looted in 1943 by the French Commission of Jewish Affairs, which was working alongside the Nazis.

France | Paris Police arrested five art experts in connection with ongoing investigations into trafficked and looted antiquities from the Near and the Middle East. The accused include a former Musée du Louvre curator and an employee of the Pierre Bergé & Associés auction house. Antiques worth tens of millions of euros were allegedly taken from countries including Libya, Syria, Egypt and Yemen, often through the renowned Pierre Berge auction house based in Paris. The arrests follow a 2018 investigation by French anti-trafficking and fraud agents into the illegal antiquities network between art dealers, antique experts and museum curators.

From the August 2020 Newsletter

United States

Firooz Zahedi v. Miramax, LLC et al., No. 2:20-CV-04512 (C.D. Cal. filed on May 19, 2020). Iranian photographer Firooz Zahedi, represented by Doniger Burroughs, has filed suit against Miramax, Amazon, Urban Outfitters and over 20 other retailers for copyright infringement. The artist is claiming that Miramax misappropriated and unlawfully licensed the use of his photo of Uma Thurman in her role as Mia Wallace in Quentin Tarantino’s “Pulp Fiction” (1994). The first amended complaint, filed on July 21, 2020, explains that Mr. Zahedi “created this photograph […] and only provided Miramax a limited license to use the photograph as part of a promotional poster for the film at the time of its release, but notably did not provide any license for the photograph to be exploited on consumer products.” In the years that followed, the photograph became iconic and Miramax allegedly “sold and licensed the sale of untold thousands of consumer products bearing the photograph without any license” to do so, despite notice of the infringement.

U.S. v. One Painting Entitled “Colored Campbell’s Soup Can (Emerald Green), 1965” by Andy Warhol and One Painting Entitled “Vétheuil au Soleil” by Claude Monet,” No. 2:20-cv-05916 (C.D. Cal. filed July 1, 2020). On July 1, 2020, the United States Department of Justice filed six civil forfeiture complaints seeking the forfeiture of about $96 million in assets allegedly associated with an international conspiracy to launder funds from 1Malaysia Development Berhad (1MDB), a sovereign wealth fund. The complaints allege that 1MDB officials, their family members, and their associates embezzled about $1 billion from 1MDB, transferred the money through various shell companies, and used the money to acquire a wide range of luxury assets, including art by Warhol, Monet, and Basquiat.

Republic of Hungary, et al. v. Simon, et al., No. 17-7146 (D.C. Cir. 2018), cert. grantedNo. 18-1447 (U.S. July 2, 2020). On July 2, 2020, the Supreme Court of the United States agreed to decide whether federal courts can hear claims about atrocities committed overseas, including the looting of Jewish property during the Holocaust by German and Hungarian authorities. The Court will consider whether the district court may abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity. Former Hungarian nationals have sued the Republic of Hungary to recover the value of property lost there during World War II, though no attempts were made to exhaust local Hungarian remedies.

U.S. v. EldarirNo. 1:20-cr-00243, (E.D.N.Y. filed July 2, 2020). Following an investigation by ICE’s Homeland Security Investigations (HSI) New York’s Cultural Property, Arts and Antiques (CPAA) unit with assistance from the U.S. Customs and Border Protection (CBP), Ashraf Omar Eldarir, a U.S. citizen, is charged with smuggling nealy 590 artifacts pillaged from Egypt into the United States. Attorney for EDNY, Richard P. Donoghue, states, “These cultural treasures traveled across centuries and millennia, only to end up unceremoniously stuffed in a dirt-caked suitcase at JFK.” The indictment is available here. 

JN Contemporary Art LLC v. Phillips Auctioneers LLCNo. 1:20-cv-04370 (S.D.N.Y. July 15, 2020). Joseph Nahmad, the youngest of the Nahmad art dealers, sued Phillips Auctioneers after a $5 million guarantee deal dissolved. Nahmad, through an entity JN Contemporary Art LLC, sued Phillips for at least $7 million for improperly reneging on a guarantee on a Stingel painting. The suit stems from an agreement in which JN Contemporary agreed to place an irrevocable bid for £3 million on a Jean-Michel Basquiat painting ahead of Phillips’s June 2019 sale in London; in exchange, JN Contemporary secured a $5 million guarantee on a Stingel painting ahead of Phillips’s spring 2020 sale in New York. Phillips contended that the guarantee was dissolved due to the pandemic, but JN Contemporary argued that Phillips used the pandemic as pretext to abandon the guarantee due to a downturn in the current market for Stingel. JN Contemporary asserts that it fulfilled its end of the bargain by acting as the irrevocable bidder at the London sale. On July 15, 2020, the SDNY denied JN Contemporary’s motion for a temporary restraining order requiring Phillips to offer the Stingel painting at auction and guaranteeing that JN receive a minimum of $5 million from the sale.

U.S. v. PhilbrickNo. 1:20-mj-04507 (S.D.N.Y. July 13, 2020). On July 13, 2020, a New York grand jury indicted former art dealer Inigo Philbrick on federal charges of wire fraud and aggravated identity theft. As a result of the indictment, Philbrick was ordered to forfeit all property derived from the profits of his fraud scheme, including works of art that were transferred to, sold to, or deposited with third parties or that might otherwise be out of the authorities’ reach. Philbrick will be tried in the Southern District of New York.

U.S. v. Righter, No. 1:19-cr-20370 (S.D. Fla. July 16, 2020) and No. 1:20-cr-20164 (S.D. Fla. July 16, 2020). After pleading guilty to selling fake artworks by artists including Warhol, Basquiat, Haring, and Lichtenstein in a California federal court earlier this year, Philip Righter consented to transferring the case (the “Los Angeles case”) to the District Court for the Southern District of Florida, where another case (the “Miami case”) was pending against him. Righter has since pleaded guilty to mail fraud and aggravated identity theft in the Miami case, and wire fraud, aggravated identity theft, and tax fraud in the Los Angeles case. United States District Court Judge Marcia G. Cooke sentenced Righter to five years of imprisonment for each case, and the sentence will run concurrently.

Sotheby’s, Inc. v. Nature Morte, LLC, et al.No. 0655636/2017 (N.Y. Sup. Ct. July 20, 2020). The New York Supreme Court has ordered art dealer Anatole Shagalov to pay almost $2 million to Sotheby’s following a legal dispute over Untitled (1982) by Keith Haring. Shagalov purchased the painting at a Sotheby’s auction in May of 2017, through his company Nature Morte in Great Neck, New York. Shagalov was soon after taken to court, as Sotheby’s attempted to recoup the difference between Shagalov’s record $6.5 million bid and the $4.4 million resale of the painting to the guarantor, after Shagalov refused to honor his bid.

U.S. v. AlcharihiNo. 2:20-cr-00307 (C.D. Cal. filed July 24, 2020). Mohamad Yassin Alcharihi has been indicted on charges of illegally importing an ancient mosaic that could have been looted from Syria. The mosaic was seized from Alcharihi’s home in Palmdale, California in 2016. On July 24, 2020, Alcharihi was charged with entry of goods into the United States that were falsely classified in their quality and value. Alcharihi claimed he was importing a mosaic and other items valued at $2,199, although the mosaic is worth more. The indictment also alleges that he misrepresented the quality of the mosaic and its depictions.

Castillo v. G&M Realty, L.P., 950 F.3d 155 (2d Cir. 2020), petition for cert. filed (No. 18-498). In 2013, G&M Realty whitewashed the exterior of the “5Pointz” warehouse complex in Long Island City, Queens, resulting in the destruction of authorized street art on the building, owned by real estate developer Gerald Wolkoff, who passed away early this month. In February 2018, the EDNY awarded $6.75 million to 21 street artists whose works were destroyed, and the Second Circuit affirmed the decision in February 2020, agreeing with the lower court’s interpretation of the Visual Artists Rights Act of 1990 (“VARA”). In July 2020, G&M Realty filed a petition with the Supreme Court, claims that the provision which protects works of art of “recognized stature” from being destroyed or modified without the artist’s prior notice violates the Fifth Amendment’s right to due process as it does not define the criteria or methodology to achieve such recognized stature. The petition is available here.

Rodney Smith Ltd. v. Sugar Factory, LLC et al., No. 2:20-cv-06854 (C. D. Cal. filed on July 30, 2020). The estate of fashion and landscape photographer Rodney Smith filed a complaint against The Sugar Factory, the candy-themed international restaurant chain for allegedly infringing on the photographer’s copyright. In the complaint, the Estate explains that the Defendants have, without authorization, “copied, reproduced, and publicly displayed versions” of an iconic black and white photograph of a couple holding hands in front of the Eiffel Tower, in Paris. Specifically, “Defendants […] unlawfully added, inter alia, and without limitation, Sugar Factory’s branded duck icon onto the illicitly reproduced Subject Photograph,” which are prominently displayed within “at least seven Sugar Factory restaurant locations” and on the Defendants’ website. Complaint available upon request.

International

International Criminal Court | Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, a Malian fighter and an alleged member of the Ansar Dine, has been accused of destroying cultural heritage sites and committing other inhumane acts while he was acting as the de facto chief of the Islamic Police in northern Mali. Al Hassan now faces trial in the International Criminal Court (ICC) for the alleged war crimes, sexual slavery, and crimes against humanity committed in Timbuktu, Mali. In the opening arguments, al Hassan’s defense attorney argued that his client was unfit to stand trial as a result of post-traumatic stress disorder caused by “severe maltreatment” while al Hassan was held captive in Mali awaiting extradition to The Hague. The trial is scheduled to resume on August 25, 2020.

Monaco | Swiss art dealer Yves Bouvier won a significant victory in his legal battle against Russian billionaire collector Dmitry Rybolovlev. Rybolovlev claimed that Bouvier misrepresented his role in the sale of 38 world-class artworks to the collector over the course of 12 years, defrauding him out of $1 billion. Yet, the Monaco Court of Revision upheld the decision of a lower court to dismiss charges of fraud and money laundering against Bouvier. Rybolovlev is now being investigated by authorities in Monaco over corruption charges filed by Bouvier who claims that Rybolovlev bribed law-enforcement officials working the case.

Norway | After two Oslo murals drawn by Pablo Picasso in collaboration with the Norwegian artist Carl Nesjar were removed from a government building sought to be demolished, the heirs of the artists are now claiming moral rights in Norwegian courts.

From the September 2020 Newsletter

United States

Bell et al. v. The Hershey Co. et al., No. 1:20-cv-03331 (E.D.N.Y. filed on July 24, 2020). Brooklyn-based artist Andrew Bell is suing chocolate manufacturer Hershey, following cease-and-desist letters he received last year to enjoin him from selling his pricey vinyl sculptures, with monster-like faces and sharp teeth, which carry names like “Kisses of Death” and “Kill Kats.”  The complaint argues that his parodies of Hershey’s candies should be protected by the First Amendment, as Bell provides commentary on themes “including the processed food industry’s impact on health.”

NYC Art Handlers LLC v. Fergus Mccaffrey Inc., No. 653514/2020 (N.Y. Sup. Ct. filed on July 31, 2020). NYC Art Handlers, a Brooklyn-based art storage company, is suing art dealer Fergus McCaffrey in New York State Supreme Court. The complaint, filed in late July, alleges that the gallery failed to pay at least $145,583 in storage fees and the Plaintiffs are requesting that the court transfer the title of the artworks to their possession, in order to auction them off and to satisfy the gallery’s debt.

Miller Gaffney Art Advisory, LLC v. GiulianiNo. 653670/2020 (N.Y. Sup. Ct. filed on Aug. 7, 2020). The Miller Gaffney Art Advisory Group (“MGAA”) has filed a suit against former NYC mayor Rudolph Giuliani in New York Supreme Court, alleging that he owes over $15,700 for services rendered during his 2019 divorce when MGAA was hired to appraise the value of the couple’s collection, so that it may be equitably divided after 15 years of marriage. The complaint, filed by Mazzola Lindstrom on behalf of MGAA, is based on breach of contract and unjust enrichment.

Restellini v. The Wildenstein Plattner Institute, Inc., No. 1:20-cv-04388 (S.D.N.Y. filed June 9, 2020). In the lawsuit brought in June by Amedeo Modigliani expert Marc Restellini against the Wildenstein Plattner Institute (“WPI”) for allegedly violating his copyright and misappropriating his trade secrets in WPI’s upcoming catalogue raisonne on the artist, WPI fought back on August 14th with counterclaims of copyright infringement, conversion, and false advertising. The WPI claims that Restellini’s suit is “a belated and wrongful attempt to seize control over scholarship that was researched, collected and organised by others, and to ‘own’ facts concerning the artist Amedeo Modigliani (“Modigliani”) that do not belong to him.”

Cassirer et al v. Thyssen-Bornemisza Collection, No. 19-55616 (9th Cir. Aug. 17, 2020). The Ninth Circuit affirmed a 2019 lower court determination that the Spanish Thyssen-Bornemisza museum is the rightful owner of Camille Pissarro’s “Rue St.-Honore, Apres-Midi, Effet de Pluie” (1897), stolen from the Cassirer family by Nazis in 1939. The court found that the museum sufficiently demonstrated it had no actual knowledge that the masterpiece had been looted when they acquired the artwork in 1993 as part of a state-funded deal for $350 million.

International

Belarus | Viktor Babariko, one of Belarus’s top collectors and the main rival of the current president, has been arrested and jailed ahead of the elections on charges of money-laundering.

France | The Parisian gallery Cybèle is seeking reimbursement by Hamburg-based seller Nassifa el-Khoury, French auction house Pierre Bergé, and its expert Christophe Kunicki for allegedly providing false provenance for the Egyptian sarcophagus they purchased in 2007, which was seized in New York in 2019 and repatriated by the Manhattan District Attorney.

UK | At the end of July, the UK Supreme Court rejected the application made by the Friends of Antique Cultural Treasures for permission to further appeal the decisions of the High Court and Court of Appeal dismissing its claim for judicial review of the Ivory Act 2018.

UK | The 20-year old Spanish performance artist Shakeel Massey, who punched Picasso’s “Bust of a Woman” (1944) at the Tate Modern, was sentenced to 18 months in prison for damaging the $26-million painting.

From the October 2020 Newsletter

United States

Alexander v. Take-Two Interactive Software, Inc., No. 18-cv-966 (S.D. Ill. March 18, 2020). In this copyright infringement lawsuit stemming from the reproduction of Alexander’s tattoo art on a WWE wrestler’s figure, Randy Orten, in a video game produced by Take-Two, the Southern District of Illinois granted a partial motion for summary judgment for the Plaintiff more than two years after litigation started. This creates a Circuit split in light of the ruling that came down this summer in the Southern District of New York, which found the De Minimis defense was favorable to the defendant, that the tattoo was indistinct on screen, had minimal screen time, and the cameras quick movements during playtime were unlikely to show the tattoo. The New York court had also found that tattoo artists give an implied license to clients to reproduce the work. However, the Seventh Circuit found both the fair use doctrine and the De Minimis defense to be not inapplicable and asserted that tattoo artists do not give an implied license to reproduce the tattoo.

Dicker v. Mosionzhnik Fine Art, LLCNo. 652631/2020 (N.Y. Sup. Ct. filed June 22, 2020). In this action for breach of contract brought by art dealer Susan Dicker, the Plaintiff is seeking recovery of the entire purchase price plus interest accrued, based on the failure of Defendant to pay $3,000,000 for a Picasso that Defendant sold and delivered in February 2019. Susan Dicker had contracted with MFA LLC to assist her in the sale of her Picasso, to act as her agent in finding a buyer, and to keep the original seller anonymous. The allegations are based on an invoice with the terms of sale, which mandated remitting 100% of the proceeds to Plaintiff, and the fact that the Defendant has admitted to purchasing a different piece of art with the proceeds—instead of immediately remitting Ms. Dicker the price paid in full by the purchaser.

Maran v. Metropolitan Museum of ArtNo. 19-CV-8606, 2020 U.S. Dist. LEXIS 122515 (S.D.N.Y July 13, 2020). Plaintiff Lawrence Marano, a professional photographer, is suing The Metropolitan Museum of Art for willful copyright infringement for use of a photograph that he took of Eddie Van Halen playing his famous “Frankenstein” guitar at a concert. The Met used the photograph in an online catalogue for a physical exhibition on rock and roll instruments, displaying the “Frankenstein” photograph along with a separate photograph of the guitar, two thumbnail images, and two paragraphs of text describing the guitar’s history. After the initial filing of the case in September 2019 based on copyright infringement, the court found that this action fell under the fair use doctrine and dismissed Marano’s complaint on July 13, 2020. The Court focused on the fact that the use of the photograph by the Met was in a scholarly context, to display the guitar, in contrast to the creative and different market that Marano took the photograph for. The Court also concluded that the photograph was inconsequential in value to the Met because it was on a page with other photographs that highlighted the guitar specifically.

Union District Council 37 v. American Museum of Natural History, No. 02-CA-265257 (N.L.R.B.) (August 25, 2020). The Union District Council 37 (as employees) is suing their employer, the American Museum of Natural History, before the National Labor Relations Board for claims under The National Labor Relations Act. These claims include: 1) refusal to bargain or bad faith bargaining (including surface bargaining or direct dealing), and 2) the refusal to furnish information. Employees claim that ProtectWell, the app that the Museum is using for the health screening policies for re-opening, is invasive, and does not comply with HIPAA regulations. The employees fear for their data privacy and argue that the American Museum of Natural History did not give alternatives for those without smartphone capabilities to download the app.

Sprecher v. Watson, No. 4:20-cv-03196 (S.D. Tex. Sept. 14, 2020). In September, Aaron Sprecher, a professional freelance photographer, brought a copyright infringement lawsuit against NFL player DeShaun Watson, arising out of the latter’s unauthorized reproduction of the photographer’s images on his Instagram account. As a professional photographer, Sprecher argues that he relies on the royalties of licensing sports photography to sustain his practice and alleges that Defendant published three of his images without purchasing a license. The photographs continue to remain on Watson’s Instagram account and have garnered substantial likes, which the Plaintiff argues would entitle him to significant damages and an injunction against defendant from copying, displaying, distributing, advertising, promoting, and/or exploiting in any manner the photographs, and surrendering any files in defendant’s possession.

Global Art Exhibitions, Inc. v. Kuhn & Bulow Italia Insurance Broker GmbH et al, No. 1:20-cv-01395-AJN (S.D.N.Y filed Feb. 18, 2020). This case involves claims sounding in breach of contract to recover proceeds under an insurance policy issued by defendant insurance company and broker. Twenty-one works were seized from the Plaintiff’s exhibition at Palazzo Ducale in Italy, including twelve works arranged through Global. The Modigliani works were seized by Italian authorities under a claim of forgery. Although the underlying claim of forgery has not been resolved, despite Plaintiff Global’s repeated demands for their return, the seized works of art remain in the possession of the Italian authorities. In addition, Defendants have refused to pay the costs incurred to regain possession of the seized paintings, as they claim the insurance policy is not triggered until the investigation of the paintings is complete. Defendant filed a motion to dismiss on September 14, 2020, stating that: the claim is not yet ripe for litigation because the Plaintiff is only due payment if the paintings are not deemed forgeries; there is a lack of jurisdiction because the Insurance Policy was crafted in Germany and under German law; and that two of the Defendants never even participated in crafting the insurance policy that covered the paintings in New York. The forgery investigation in Italy is still underway.

East Coast Power & Gas, LLC v. The Museum of Modern Art, No. 654636/2020 (N.Y. Sup. Ct. filed Sept. 23, 2020). The East Coast Power and Gas Company is suing the Museum of Modern Art in New York for breach of contract for electric services. East Coast Power is alleging that the MoMA has failed to pay its remaining balance of $210,349.26 after East Coast Power had lawfully terminated their contract on May 13, 2020.

U.S. v. Dere, No. 1:2020cr00501 (S.D.N.Y. filed on Sept. 15, 2020). On September 22, Federal Law Enforcement agents arrested Defendant Erdal Dere at his residence in New York City and arrested Defendant Faisal Kahn at his residence in New Jersey. The Defendants have been charged with one count of conspiracy to commit wire fraud, one count of wire fraud, and one count of identity theft. Through Fortuna Fine Arts Ltd, the Defendants engaged in a years-long fraud scheme of false provenances for the offer and sales of numerous antiquities (spanning from 2015 to 2020). Khan solicited buyers and put them in contact with Dere, who fabricated the provenance with forged documents that falsely labeled the previous owners of the antiquities as various deceased collectors. In addition, the United States demands that the Defendants forfeit any US funds earned from the sale of these antiquities under false provenances, as well as objects still in their possession.

Marlborough Gallery, Inc v. Levai, No. 654459/2020 (N.Y. Sup. Ct. filed Sept. 15, 2020). Pierre Levai and his son Max Levai are being sued for numerous claims stemming from years of mismanaging the Marlborough Gallery, including misappropriation of the gallery funds and Marlborough property for personal uses (such as receiving loans, pays tabs at nightclubs and restaurants, and transferring 23 works to the possession of Pierre’s close friend). Pierre was the President of the gallery until the summer of 2019, at which point he promoted his son to the role of President. Pierre still serves on the Gallery’s board and allegedly participated in Max’s termination on June 24, 2020. The Marlborough Gallery alleges that it has sustained losses of up to $18.7 million between 2013 and 2019—$14.5 million of which is attributable to aspects of the Gallery which were under Max Levai’s primary control and responsibility. The complaint alleges that, during the board’s efforts to wind down the operations of the Gallery, Max refused to comply with the board’s repeated requests for his help and information. Additionally, the board received information that Max and the co-Defendants took resources and contacted artists from the Gallery to form their own gallery in the Hamptons (“Alone Gallery”). The Plaintiff also alleges that Max held himself out to be an employee of the Marlborough Gallery, even after his termination, and made broad claims to the press that the Gallery was shutting down, in order to induce artists to leave Marlborough and follow him to his new Alone Gallery. Max filed a suit against the Gallery on the same day this suit was filed.

Levai v. Marlborough Gallery, Inc., No. 654436/2020 (N.Y. Sup. Ct. filed Sept. 15, 2020). Filed simultaneously to Marlborough Gallery, Inc v. Levai, No. 654459/2020, Max Levai, former employee of Marlborough Gallery, brings this action for defamation, to regain control over his personal property, and to recover the reputational and economic damages he has suffered — including punitive damages based on the Defendants’ alleged willful and malicious conduct. Max Levai argues in his complaint that the Defendants had “duped” him into believing they were closing the Gallery when, in actuality, they were preparing to terminate him. Levai also claims that two board members sent a June 23, 2020 letter with false claims to prominent figures in the art world, in order to destroy his reputation. The Plaintiff also alleges the Gallery tortiously interfered with his ability to operate a competing business, his “Alone Gallery” in the Hamptons, by inhibiting his ability to contact artists. Lastly, the Plaintiff alleges the Gallery has wrongful possession of 25 works from his personal collection stored in its warehouses and that the Gallery hacked his personal Instagram account for its own use.

G&M Realty L.P., et al., v. Maria Castillo, et al., 950 F.3d 155 (2d Cir. 2020), cert. denied, No. 20-66. On October 5, 2020, as the U.S. Supreme Court’s term resumed, the Justices refused to grant certiorari to the owner of the Long Island City industrial complex and “Graffiti Mecca” which had come to be known as “5Pointz.” Read about the Second Circuit decision confirming the award of $6.75 million in damages to the artists and the petition is available here.

International

Brazil | The Museum of Contemporary Art at the University of Sao Paulo (“MAC”) is seeking payment of  $3.6 million for the preservation of works leftover from the collection of the bankrupt Banco Santos and its owner, Edemar Cid Ferreria. In 2005 as per judicial order, the collection was placed in museum custody; ten years later (and before this present action), MAC asked for reimbursement of conservation expenses. At the end of 2019, the Museum was awarded only $37,000. However, MAC sought reimbursement in the form of artwork (not cash), as the Banco Santos works represent 15% of the collection. The online auction of these works commenced on September 21 and will continue until October 2. MAC has stated they will not be buying back the works, which they have taken care of for almost 15 years.

European Union |The anonymous artist Banksy lost his case against a greeting card company over the use of the “Flower Thrower” image, concluding the parties’ two-year dispute. In February of 2014, Banksy applied for an EU trademark of the mural image, Flower Thrower; however,  this past month, its trademark protection was overturned, despite the artist’s efforts to use the trademark and sell merchandise at a pop-up store in Croydon, London. The panel of judges ruled that Banksy’s request and endeavors were rooted in “bad faith” attempts at seeking E.U. trademark law loopholes. Full Colour Black Limited v. Pest Control Office Limited, No. 33 843/2020 C (European Union Trade Mark on September 16, 2020).

France | In Paris, the New-York gallery Marlborough and its former director of Asian arts, Philippe Koutouzis, along with a retired curator from the Guimet Museum, Jean-Paul Desroches are being accused of bribery for promoting an exhibition done by artist Chu Teh-Chun. This action includes claims that Desroches received favors from the Gallery and the artist including €20,000 for a catalogue sponsored by Marlborough and payment of flights for trips to Madrid, Hong Kong, and Beijing.

France | The Paris Court of Appeals ordered that three paintings by André Derain be restituted to the family of French-Jewish collector and art dealer René Gimpel, who died in a concentration camp in 1945.

Italy | Two suspects were caught stealing artifacts and coins from the Chiesa di Sant’Agata al Collegio church in Sicily. In addition to theft, the two men vandalized the music school and library and attacked various sacred spaces. This is the second time in two months the church has been damaged by acts of theft and vandalism.

From the November 2020 Newsletter

United States

teamLab Inc v. Museum of Dream Space et al.No. 2:19-cv-6906 (C.D. Cal. filed Aug. 8 2019). teamLab, an interdisciplinary art collective headquartered in Tokyo, Japan, is suing the Museum of Dream Space, a Los-Angeles based museum that also displays interactive artworks, for copyright infringement of two distinct exhibitions. The exhibitions titled “Universe of Water Particles, Transcending Boundaries,” displayed at the Pace Gallery in London, and “Crystal Universe,” displayed at Pola Museum in Japan, were alleged to be known by the defendants and copied by them. teamLab alleges multiple instances of copyright infringement, including still photos of their exhibit, and descriptions of the exhibits from their website. The parties are reported to have reached a settlement over the summer.

Munro et al. v. Fairchild Tropical Botanic Garden, Inc. et al.No. 20-cv-20079 (S.D. Fla. filed Jan. 8, 2020). In the Beginning of the year, U.K. artist Bruce Munro, known for his light-based installation work, filed a lawsuit against Fairchild Tropical Botanic Garden in Coral Gables, FL, alleging that the garden had imported, installed, and publicly displayed “indistinguishable copies” of Munro’s original installation work for an event called NightGardem. Fairchild filed a motion to dismiss, claiming that the artwork is not protected as “pictorial, graphic, and sculptural works but are merely useful articles.” On July 13, 2020, the U.S. District Court for the Southern District of Florida denied the motion to dismiss, stating the court is not obligated to determine “what is art,” and the works are protected under the Copyright Act as sculptures. Munro then amended his complaint, adding more claims of copyright infringement and mismanagement, and adding other defendants and his studio as a plaintiff. On August 5, the defendants filed an answer with defenses, which the plaintiff moved to strike. The case is still pending.

LMNOPI v. XYZ Films, LLCNo. 18-cv-5610 (E.D.N.Y. Mar. 30, 2020). An activist artist, who goes by the name of LMNOPI, and the subject of her art, Ta’Kaiya Blaney, sued XYZ Films for the reproduction of a mural done on a building in Bushwick, Brooklyn, in one of their films, an action thriller entitled “Bushwick.” The mural appears for 3.5 seconds in the opening scenes of the movie, but clearly shows the art and its subject, Blaney. Both defendants sued for copyright infringement and false endorsement of the movie, and Blaney sued for misappropriation of her right of publicity. On March 20, 2020, the court dismissed all the claims, saying that the use of the mural was de minimis, as it was only for 3.5 seconds in a 93 minute film, and transformative, therefore falling under the fair use doctrine. There was also no false endorsement as the court concluded that there was not a plausible claim that viewers would be misled into believing that the plaintiff had endorsed the movie.

Fay v. Princeton University Art Museum, No. 1:20-cv-01496 (S.D.N.Y. settled Ap. 2, 2020). Mr. Vincent Fay is a collector of fine art, and has been for over 50 years. Many works that he owns have been exhibited all over the world. In 2018, Mr. Fay signed a contract with the Princeton University Art Museum to sell 17 works for $945,000, to be paid in two installments. Before the Museum paid the second installment in December 2018, the contract was rescinded, due to questions about the authenticity of the works. While the Museum requested the return of the first installment, the plaintiff sued to enforce the contract, which included a statement about the authenticity of the works to the best of the seller’s knowledge, but did not include the right to rescind if a question arose as to the works’ authenticity. The suit was voluntarily dismissed with prejudice in April 2020.

Gerald Peters Gallery Inc., v. Peter Stremmell, No. 18-16677 (9th Cir. 2020). This action is an appeal from a judgment entered against Gerald Peters Gallery Inc. in a defamation/business disparagement action brought against Peter Stremmel et al. (“Stremmel”). This case involved the sale, by the gallery, of a painting titled “The Rain and the Sun,” which was purchased by R. D. Hubbard several years ago for $750,000. When a question arose as to the painting’s authenticity, one of Hubbard’s associates sent images of the painting to Stremmel, who responded via several emails that he was absolutely certain the painting was a fake. Hubbard and his associates had not told Stremmel of the gallery’s involvement in the sale of the painting at the time of the initial comments. The lower court decided that the emails did not contain “a false and defamatory statement concerning the plaintiff.”  The 9th Circuit Court of Appeals found that the district court only considered the first element of a defamation claim and erred in determining that it would not have been “reasonable for Mr. Hubbard or his associates to understand Stremmel as intending to refer to the gallery.” Because Nevada law did not require Stremmel to know the precise identity of the seller, whether his emails reasonably implicated the gallery was a question of fact for the jury and it was an error for the district court to decide this issue as a question of law. The court reversed and remanded the decision for further proceedings.

Holtzman v. Kuntsmuseen Krefeld, No. 1:20-cv-02976 (D.C. Cir. filed Oct. 15, 2020). The heirs of Piet Mondrian’s estate filed a lawsuit on October 15, 2020 against German Museum collective Kunstmuseen Krefeld, for the return of four of his paintings and damages for four other paintings that likely were exchanged for—or sold to fund the purchase of—other acquisitions. The case is brought by children of American abstract artist, Harry Holtzman who helped Mondrian flee the Nazi regime in the 1940s and who became the executor of the Mondrian estate. The Kaiser Wilhelm Museum (KWM), part of the German Collective, acquired the eight paintings in 1929 for a proposed exhibition, but the show was never exhibited and the paintings remained Mondrian’s property as he never transferred title to KWM. In 1933, the Nazi regime took over the museum and deemed Mondrian’s work “degenerate.” Although the works were never seized because they were not in the museums official inventory, Mondrian was unable to get those works back. He fled to London and then New York, where he died assuming the works were lost. In 1947, Paul Wember became director of KWM and, in 1950, discovered the works “under mysterious circumstances.” The complaint alleges Wember knew they were Mondrian’s property, but never tried to contact the heirs or return the paintings. In 2011, the heirs learned of the works at KWM and retained counsel to communicate with defendant, but Krefeld provided no information or details as to how KWM acquired the works. The estate’s trust hired provenance expert Monika Tatzkow and German Lawyer Gunnar Schnabel to investigate. In 2017, they concluded that the defendant never lawfully acquired ownership of the paintings. The trust sent this report to the defendant, who refused to return the works, leading to the present action. The plaintiff alleges the claims are timely because of the Holocaust Expropriated Art Recovery Act, which allows recovery of art that was in Nazi position by “degenerate” artists to be recovered within six years of the plaintiff becoming aware of its interest in the paintings.

U.S. v. Two One-Thousand-Five-Hundred-Pound, Hand-Carved Lintels Removed from Religious Temples in Thailand, No. 4:20-cv-07537 (N.D. Cal. filed Oct. 27, 2020). The United States District Attorney in California filed a civil lawsuit demanding forfeiture of two ancient Thai artifacts by the San Francisco Asian Art Museum. The museum had already been working to repatriate the two works, after members of the Thai consulate saw them on display in LA in 2016. This past September, after a three-year internal study, the museum issued a press release stating that the lintels were not removed contrary to Thai laws but, since they could not find any export documents, they would begin the process of deaccessioning the two works. In the complaint, however, the US attorney includes evidence and communications about the stolen objects and alleges that the cultural patrimony laws of Thailand have also been violated. The US attorney filed this complaint because the City and County of San Francisco have not agreed to a court-sanctioned process; thus he believes this is the best way to ensure that the Thai government gets their pieces back.

International

France | Holocaust survivor, Léone Meyer, is returning to court to challenge the terms of a 2016 agreement concerning her family’s Pissarro’s “La Bergère Rentrant des Moutons’” (1886), to prevent its scheduled return to Oklahoma after unsuccessful attempts to place the work in a French art institution.

Japan | In 2015, Osaka tattooist Taiki Masuda was arrested for allegedly violating the Medical Practitioners’ Act by tattooing people without a doctor’s license. Masuda was fined for the infraction but the ruling was overturned in 2018. The Prosecution appealed the action to the Supreme Court, who upheld the reversal, as tattooing carries little risk of injury or health problems. There has been an aversion to tattoos in Japanese culture for centuries, but the country may be changing its tune.

From the December 2020 Newsletter

United States

U.S. v. Harold Gordon, No. 3:19-cr-00028 (D. Conn. Sept. 30, 2020). Art and antiquities dealer Harold Gordon, has pleaded guilty to crafting a forgery of a civil war era desk, with immaculate skill that duped experts for years. He was charged with wire fraud for receiving money for the forged desk and forged provenance. He has since confessed to the forgery and will be placed on probation for 5 years, with special conditions served in the district of Massachusetts. Gordon was ordered to pay $100 immediately and then, over time,  pay back the price he sold the desk for: $84,500.

Cosimo Cavallaro v. SLSCO, LTD, No. 1:20-cv-2157 (S.D. Cal. filed Nov. 4, 2020). Artist and Sculptor Cosimo Cavallaro is suing the construction company hired by the federal government that destroyed the cheese wall he made on a separate and private plot of land 10 yards away from the US/Mexico steel border wall in San Diego. Cavallaro’s claim is grounded in the Visual Artist Right’s Act and trespass to private property. Cavallaro used over 400 blocks of Cotija, a hard Mexican cheese, molded into blocks, to build this wall. In November 2019, without it being completed, nor allowing the use and enjoyment of the art piece, it is alleged that the subcontractor SLSCO destroyed the sculpture by bulldozing the blocks into the ground and otherwise destroying the blocks. The sculpture was on private property leased by non-profit Art Above Ground, for the purpose of the sculpture and later bronze casts of the sculpture to be displayed in museums.

People v. Sotheby’s, No. 452192/2020 (N.Y. Sup. Ct. filed Nov. 6, 2020). Sotheby’s is being sued by the Attorney General of New York for allegedly allowing a customer to avoid sales tax, by approving forms for the collector as if he was an art dealer. A purchaser may be exempt from the payment of sales tax where he is purchasing tangible personal property solely for resale, in the normal course of business. This generally includes art galleries and art dealers who are in the resale business. The complaint herein alleges that Sotheby’s forms close relationships with their clients, in order to gain trust and their business. The collector’s key client manager (“KCM”), as well as many other employees knew that he was using the paintings only as personal property in his New York apartment, and was not in the business of resale; the collector was in the shipping business. In 2018, Porsal Equities reached a settlement with the Office of the Attorney General, in which it admitted that it and the collector used false resale certificates, primarily at Sotheby’s, in violation of the New York False Claims Act. Porsal Equities, of which the collector is president, secretary and owner, admitted that it and the collector falsely certified they were purchasing artwork and other goods for resale, but in fact, were actually purchasing solely for personal use, and paid a portion of the liabilities incurred with respect to these sales. The People of New York allege that they are well within their rights to sue Sotheby’s, as the KCM was acting within her employment to facilitate these fraudulent “resale certificates,” and that Sotheby’s did not have a proper mechanism that allowed client accounting and KCMs to have adequate information about the resale exemptions and forms. A copy of the complaint can be found here.

Canilao v. City Commercial Investments, No. 3:20-cv-08030 (N.D. Cal. filed Nov. 13, 2020). Plaintiffs, a group of widely known muralists, are suing the new owners of an LGBTQ bar in San Francisco for white-washing the paintings they had done on the bar’s exterior. In 2017, Plaintiffs each contributed a mural to the exterior of the Stud— San Francisco’s oldest continuously operating queer bar—located at 399 9th St., in the South of Market neighborhood. Because of the pandemic, the Stud had to shut down, and the new owners, the Defendants, did not heed the call of the community to leave the murals in place. On June 20th, 2020, Defendants began painting over the murals during pride week and, by mid-week, they were covered. Plaintiffs are suing under the Visual Artists Rights Act, for destruction of their work. They claim the Defendants intentionally and with notice destroyed the work that has been owned by them for years and that they are of a recognized stature. Plaintiffs are also claiming intentional destruction of fine art and negligence.

Steinhardt v. Hisrchl & Adler Galleries, No. 159990/2020, (N.Y. Sup. Ct. filed Nov. 18, 2020). Michael Steinhardt, well-known Jewish philanthropist, bought a historic portrait of George Washington known as “Munro-Lenox,” created by artist Gilbert Charles Stuart, from the New York Public Library in 2006.  When it was time to resell, in 2017, he turned to the experts in 19th century American Paintings at Hirschl & Adler. Mr. Steinhard is alleging that, in this “net to you” $10 million consignment contract with Hirschl & Adler, the gallery made a hidden commission of 17%, or $2 million. Mr. Steinhardt is claiming that the gallery purposely undervalued the portrait, so that they could claim a windfall when it sold for more. He explains that the contract did not state that if the portrait sold for above $10 million, the gallery would keep the remainder, and claims that this is in violation of its ethical and fiduciary obligations as a member of Art Dealers Association of America. Mr. Steinhardt only found about this $2 million difference when he ran into the portrait’s buyer, Leonard Stern. Mr. Steinhardt claims this “net to you” contract explicitly violates the code from the Art Dealers Association and that these types of contracts are even outlawed in the UK. His claims are grounded in fraud, breach of fiduciary duty, and unjust enrichment.

Cohen, et al., v. G&M Realty, L.P., et al., No. 13-CV-5612 and Castillo, et al., v. G&M Realty, L.P., et al., No. 15-CV-3230 (E.D.N.Y. Nov. 25, 2020). The 5Pointz case keeps on giving, which the US Supreme Court declined to hear in October 2020. Back on remand before Judge Block at the E.D.N.Y., the parties argued over attorneys’ fees after the Second Circuit confirmed the lower court decision that Gerald Wolkoff had intentionally whitewashed over 40 artworks lawfully created on his LIC-property and violated the Visual Artists Rights Act (1990). On top of the $6.75 million in damages, the developer must now pay over $2 million in attorney fees.

International

France | The story of Camille Pissarro’s “Shepherdess Bringing in Sheep” is far from over. In 2016, the Oklahoma University’s art museum and the heirs of the Meyer family agreed to shared custody of the painting, which had been taken by the Nazis during WWII and bought in good faith by the Weitzenhoffer family, who donated it to the museum. Now, Leone Meyer is back before the French courts, arguing that there has been a change in the law about restitution of art stolen by the Nazis and that she is unable to find a French museum to take the painting who would also agree to shipping it back to Oklahoma every three years, as per the agreement. The painting will be remitted to a French Court on Dec. 8, and arguments will be heard in January 2021.

UK | In December 2019, a London High Court ruled that the consignor of a Frans Hal painting, the company Fairlight Art Ventures, owes Sotheby’s repayment for offering it, because it was deemed a forgery. Sotheby’s paid the buyer back the full $11.75 million and the court ruled that Fairlight had to pay back Sotheby’s $5.3 million; however, Fairlight is appealing the decision. The painting was consigned in partnership with Mark Weiss, a London art dealer and, in this appeal, Fairlight is claiming that it was no more than a “financier” and not a partner with Mr. Weiss, so there was no contract binding their involvement in the transaction. Mr. Weiss had previously settled outside of the litigation for $4.2 million.

UK | The legal dispute over the estate of late British-Iraqi architect Zaha Hadid was resolved in court after four years of battle over control of the estate. Hadid’s business partner sought to be named the sole executor, which revealed allegations of sexual misconduct against him, and the judge ruled against his request. The trustees agreed that the majority of Hadid’s assets will go to her charity, the Zaha Hadid Foundation, to establish a museum and award Arab women architectural education scholarships.

From the January 2019 Newsletter

United States

Vincent Sicre de Fontdrune, et. al., v. Alan Wofsy, (Ct. App. 9th) (July 13, 2022) D.C. No. 5:13-cv-05957- EJD

In the 1930’s, Christian Zervos, a photographer, created a catalogue raisonne of the works of Pablo Picasso. In 1979, Yves Sicre de Fontbrune acquired all of Zervos’ intellectual property rights, including those of the Zervos Catalog. In 1991, Alan Wofsy acquired permission from the estate of Pablo Picasso to publish a retrospective on Picasso’s works, The Picasso Project, which included reproductions of photographs from the Zervos Catalog. Sicre de Fontbrune then brought a copyright infringement suit in 1998 against Wofsy in the French courts, which determined that the Zervos photographs were subject to copyright protection and that Wofsy had violated those intellectual property rights. In 2011, Sicre de Fontbrune brought a new suit in a French court seeking to enforce the terms of the “astreinte” (a sanction that would entitle Sicre de Fontbrune to damages of 10,000 francs for each infraction of the prohibition against Wofsy’s use of the Zervos photographs) .Sicre de Fontbrune then brought a suit in Superior Court of California, Alameda County, to enforce the French judgment, and the district court dismissed the case;the Ninth Circuit reversed; and on remand, the district court granted summary judgment to Wofsy, determining that the astreinte was repugnant to the public policy of the United States and California that favors free expression. On appeal, the Ninth Circuit reversed the district court grant of summary judgment, finding that the reproductions of the photographs in The Picasso Project were not protected by fair use and that the French judgment of copyright infringement was not against public policy in the United States and California. Read the case HERE.

Estate of Henry Joseph Darger v. The Nathan and Kiyoko Lerner Foundation et al., No. 1:2022-cv-03911 (N.D III. Jul. 27, 2022)
Christen Sadowski, plaintiff and relative of artist Henry Darger, filed a lawsuit against the artist’s former Chicago landlords, Kiyoko Lerner and her late husband, Nathan Lerner, regarding the artwork Darger left behind and the copyrights therein. The lawsuit seeks to give the estate sole ownership of the copyrights inDarger’s works and the return to the estate of those works. The suit is also seeking any profits from the sale of the art and a list, from Lerner, of all of the Darger artwork in her possession. Read more HERE.

Hayden v. Koons, No. 21 CIV. 10249 (LGS), 2022 WL 2819364 (S.D.N.Y. Jul. 18, 2022)
Michael Hayden, an artist who worked in Italy, sued Jeff Koons, contemporary artist, after discovering one of his “Made in Heaven” works was used in photographs by Koons and mentioned in connection with Koons in an Italian news article. Hayden filed a suit against Koons in New York federal court for copyright infringement, publication of false copyright management information under the Digital Millennium Copyright Act (DMCA), and violation of the right of attribution under the Visual Artists Rights Act (VARA). Koons moved to dismiss the complaint on the pleadings, which the district court denied. In denying Koons’s  motion to dismiss, the district court rejected the argument that the sculpture was a useful article that was not subject to copyright protection and held that Koons’ fair use defense was not capable of determination on pleadings. Read the case HERE.

Pindell v. N’Namdi et al, 1:20-cv-00818-PGG (S.D.N.Y.)
Artist Howardena Pindell originally filed a lawsuit against her former gallery, G. R. N’Namdi Gallery, in 2020. Pindell claims that the gallery misled her about the sales of many of her works, in violation of Section 12.01 of the New York Arts and Cultural Affairs Law (NYACAL). Under NYACAL Section 12.01, an artist merchant shall act as an agent of the artist and is bound to the artist by a fiduciary duty. Pindell sought $500,000 in damages and the return of 20 works still in the gallery’s possession. Following extensive motion practice, including the submission of 126 documents to the court, the parties settled. Terms of the settlement were not made public.

Mochary v. Bergstein, No. 21-1972 (2d Cir. 2022)
The suit centers around the ownership of a Jackson Pollock collage, which is part of the millions of dollars of disputed marital property in former state Sen. Alex Kasser’s contentious divorce. Bergstein claimed it was joint property of the marriage and its future ownership should be decided by a state divorce court. Kasser’s brother, Matthew Mochary, claimed the collage is his, a gift from his mother that he loaned to his sister and Bergstein to display in their home. When Bergstein refused to return the art, Mochary sued in federal court. The U.S. district court dismissed Mochary’s suit last year, ruling for Bergstein, who wanted to leave ownership to a property settlement in divorce court. This year, a federal appeals court in New York reversed the decision, such that  Mochary may renew his fight for the art in federal court as the divorce trial, now scheduled to start in October, plays out. Mochary claims in his suit that his parents bought the 16 x 21 inch mixed-media collage — valued at $175,000 — from Sotheby’s in 1978. Bergstein asserts that Mochary’s mother testified in a deposition that she gave the Pollock to her daughter and confirmed the gift on a tax return. What’s more, Bergstein claims his wife has listed the Pollock as personal property on three separate financial affidavits. Read the full case HERE.

Morford v. Cattelan, No. 1:21-cv-20039 (S.D. Fla. Apr. 8, 2022)
A federal court in Miami denied Italian artist Maurizio Cattelan’s motion to dismiss the litigation brought by American artist, Joe Morford, alleging that Cattelan’s “Comedian “infringes the copyright of his own work, “Banana & Orange”. Morford, who is representing himself, claimed that Cattelan plagiarized and inappropriately copied Banana & Orange, which Morford registered with the U.S. Copyright Office in 2000. The court concluded that, at this stage in the civil suit, Morford has “adequately alleged that Cattelan’s Comedian has a substantial similarity to […] elements of Banana & Orange.” Read the full case HERE.

From the January 2018 Newsletter

Hearty v. The Bonfoey Company, 1:18-cv-00015 (N.D. Ohio Jan. 3, 2018) Plaintiffs, a married couple, have filed suit against the Bonfoey Gallery, the Bonfoey Company’s president, and an art dealer in Florida that Bonfoey sold the painting at issue to. 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, Defendant president approached the mother,without informing Plaintiffs, and had her sign a new consignment agreement and sent the painting to Defendant art dealer in Florida. Defendant art dealer allegedly had a buyer for the painting when Plaintiffs demanded the painting’s return. Consequently, Plaintiffs brought this suit alleging replevin, conversion, intentional infliction of emotional distress, fraud, breach of bailment, civil theft, and civil conspiracy. Plaintiffs seek to enjoin and restrain 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.

Equinox Gallery Ltd. v. Dorfman, 360 F. Supp. 3d 560 (S.D.N.Y. Jan. 3, 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 facing civil charges for selling stolen work by Jasper Johns. More information here.

Berkshire Museum Lawsuits,  (Mass. App. Ct. Jan. 16, 2018). After the Massachusetts Appeals Court granted a thirty-day injunction to halt the sale of forty works from the Berkshire Museum, appellate briefs have been filed on behalf of the heirs of Norman Rockwell and the Berkshire Museum trustees. Both filings contest the Superior Court’s decision to allow the sale of the Museum’s artworks to proceed and reiterate the arguments put before the trial court. As part of the ongoing saga, the Massachusetts Attorney General’s Office 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 1, 2018, the Appeals Court granted the AGO’s motion and continued the injunction until February 5, 2018.

Native Am. Church of N. Am. v. Transp. Sec’y Admin.,  5:17-cv-00108-OLG (W.D. Tex. Jan. 26, 2018). A settlement agreement (available here) was reached on January 26, 2018between the Native American Church of North America and the Department of Homeland Security, namely the Transportation Security Administration, who mishandled religious artifacts while the NACNA was traveling.

From the February 2018 Newsletter

Cenedella v. Metro. Museum of Art,No. 1:2018-cv-01029 (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 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 claims 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.

Zuckerman v. Metro. Museum of Art, 1:16-cv-07665 (S.D.N.Y. Feb. 7, 2018). In another case the Met, the Southern District of New York ruled that the Museum 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.”

Beale v. Wallace Gallery et al, No. 2:2018cv00871 (E.D.N.Y, Feb. 8, 2018). The cousin of Jackie Onassis Kennedy has filed a suit 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.

Cohen v. G&M Realty L.L.P.,1:13-cv-05612 (E.D.N.Y.  Feb. 12, 2018). In a hundred-page long 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. More information here, and stay tuned for an article on the blog!

Viktor v. Lamar,No. 18-cv-1554 (S.D.N.Y. Feb. 20, 2018). Visual artist Lina Iris Viktor has sued musical artists Kendrick Lamar and SZA, along with 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 the movie and promotion for the movie. However, she turned them down both times. Viktor has alleged copyright infringement, contributory copyright infringement, and vicarious contributory infringement against the defendants and demands a declaration defendants violated the Copyright Act, a permanent injunction on defendant’s use of her works, and damages. The Complaint can be read here.

Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 (2018). On February 21, 2018, 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. 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 here.

Rentmeester v. Nike, Inc., No. 15-35509 (9th Cir. Feb. 27, 2018). The Ninth Circuit has affirmed the dismissal of Plaintiff photojournalist’s copyright infringement suit against Defendant Nike. Plaintiff alleged that Nike’s “Jumpman” logo infringed on a photo he took of Michael Jordan mid-dunk with the ball raised above his head. The court held that, while Plaintiff held copyright over the photo 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 Plaintiff’s work to constitute an unlawful appropriation. The full decision can be read here.

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”. 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. Original indictment available here.

From the March 2018 Newsletter

Equinox Gallery Ltd. v. Dorfman, 360 F. Supp. 3d 560 (S.D.N.Y. 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 facing civil charges for selling stolen work by Jasper Johns. More information here.

From the April 2018 Newsletter

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 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 here.

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 him three sculptures worth more than $13 million. Five years later, he filed a complaint (available here) against the two kings of the New York art scene, condemning a Ponzi-like fraudulent scheme.

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 (alone!) 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. Plaintiff seeks a declaratory judgment and alleges breach of NY Arts and Cultural Affairs Law. Complaint 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). The singer 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. 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. Decision available here.

Shepard v. European Pressphoto Agency, 291 F. Supp. 3d 465 (S.D.N.Y. 2017, settled Ap. 2018). 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 Copyrights Act 1976. The court denied to the motion on the copyright claim. The case was ultimately settled in April 2018. Full decision here.

May 2018

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 an injunction against Sotheby’s from offering the painting “Flesh and Spirit” by Jean-Michel Basquiat for sale. 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. Complaint available here.

Shagalov v. Edelman, 6449N 655576/17 (N.Y. App. Div. May 3, 2018). The New York State Appellate Division affirmed a lower court order granting a preliminary injunction to enjoin defendants Asher Edelman et al. from “transporting, transferring, disposing, alienating, pledging, assigning, or otherwise encumbering or moving Keith Haring’s ‘Untitled (March 5, 1984)’ and Frank Stella’s ‘Guifa E La Berretta Rossa’ and ‘La Scienza della Fiacca.’” The plaintiffs, represented by Barton, LLP, successfully demonstrated that they would be “irreparably harmed absent the requested preliminary injunction” and met their burden of “establishing a reasonable probability of success on the merits of their claim that defendants violated their UCC Article 9 rights.” The decision is available here.

Morgan Art Found. Ltd. v. McKenzie, 1:18-cv-04438-AT (S.D.N.Y. May 18, 2018). Robert Indiana, the American artist famous for his “LOVE” statues, is at the center of a recent lawsuit brought in mid-May. Morgan Art Foundation, the artist’s agent for the past twenty years, is accusing art publisher American Image Art, its founder Michael McKenzie, and Indiana’s employee Jamie Thomas of copyright infringement, trademark infringement, breach of contract, unfair competition, and other counts for exploiting the artist and selling forged works. Indiana himself is also implicated by the plaintiff in the copyright infringements, because he has “a financial interest in and the ability to supervise the infringing activity”of the other defendants, and had conveyed rights to many of his works to Morgan Art Foundation in two earlier agreements. The original complaint is available here.

July 2018

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).

September 2018

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 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. This sets aside the classification of the mural as an architectural work, which copyright law permits pictorial representations. Nonetheless, the court denied Falker’s punitive claim for punitive damages. Order available upon request.

US v. Chowaiki, 1:18-cv-00323 (S.D.N.Y. Sept. 26, 2018). Manhattan art dealer Erza Chowaiki plead guilty to charges of fraud, 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.

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 with the statute of limitations for Nazi-era looted art restoration. The Ninth Circuit court ruled in favor of the museum, to avoid overruling the Dutch decision. Full text of the decision here.

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”, who was one of the painter’s muses. The painting was in the possession of the  National Gallery in London and Greta’s heirs sought to have the piece back, claiming 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. More information here.

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 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. Full decision here.

October 2018

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 one billion dollars. The Complaint alleges that Sotheby’s aided and abetted the fraud and is available upon request.

Meaders v. Helwaser et al., No. 1:18-cv-05039 (S.D.N.Y. Oct. 8, 2018). This on-going 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.

Commonwealth of Pennsylvania v. Gregory Michael Priore, No. CP-02-CR-0012634-2018, (Pa. Commw. Ct. filed Oct. 15, 2018), and Commonwealth of Pennsylvania v. John Ezra Schulman, No. CP-02-CR-0012635-2018, (Pa. Commw. Ct. filed Oct. 15, 2018). Recently, a Geneva Bible, also called a “Breeches Bible,” dating back to 1615, was discovered at the Leiden American Pilgrim Museum in the Netherlands. The Bible was among 400 items allegedly stolen  by Gregory Priore, an archivist at the Carnegie Library in Pittsburg. Dr. Jeremy Bangs, the Dutch museum’s director, acquired the Bible from dealer John Schulman in 2015, in preparation for an upcoming exhibition. Bangs was contacted by investigators asking for the Bible’s return, after which he contacted the Dutch police, who worked with the American Embassy and the F.B.I. Art Crime Team to transport the Bible back to the U.S. Both Priore and Schulman are being prosecuted.

Kapoor v. National Rifle Association of America, No. 1:18-cv-01320 (E.D. Va. filed Oct. 23, 2018). London-based sculptor Anish Kapoor reached a settlement with the NRA in a copyright lawsuit for including his famous “Cloud Gate” (2004), a/k/a the Chicago “Bean” in a video attacking the media. The case, originally filed in Illinois, had been transferred for lack of personal jurisdiction, because the artist had no link to Illinois other than the existence of the sculpture, and the NRA is headquartered in Virginia.

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 ripped off her artwork for the soundtrack of the movie “Black Panther”. The case will move forward to discovery. Full opinion here.

Alexander v. Take-Two Interactive Software, Inc. et al., No. 3:18-cv-00966 (S.D.Ill. Oct. 24, 2018). The defendant, a video-game company, moved to dismiss the case brought by a tattoo artist against them, where the artist complains that her work, a tribal tattoo placed on the skin of WWE wrestler Randy Orton, was illegally reproduced in the video-game. This is not the first suit concerning athletes’ tattoo reproduced in video-games [find the case of LeBron]. Complaint available here.

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. They allege that the gallery backdated and falsified invoice in striking a 2016 deal to purchase the piece. Amended complaint available upon request.

 

November 2018

Sotheby’s v. de Saint Donat-Pourrieres, No. 1:17-cv-00326 (S.D.N.Y. Nov. 6, 2018). Federal NY 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 is available upon request.

Bruce Berg v. Kingdom of The Netherlands et al., No. 2:18-cv-3123 (D.S.C. filed Nov. 11, 2018). In the wake of restitution cases brought against European museums, Bruce Berg, the heir of the Katz brothers who were Dutch partners and collectors, filed a federal suit against the Dutch government to recover paintings allegedly sold or traded under duress to representatives of the Nazi regime between mid-1940 and 1942, during the Nazi occupation of the Netherlands. Complaint available upon request.

DeLorean v. Delorean Motor Co. (TEXAS), No. 2:18-cv-08212 (D.N.J. 2018). Federal judge rejects 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. Full opinion here.

United Federation of Churches LLC v. Netflix, Inc. and Warner Bros. Entertainment Inc., No. 1:18-cv-10372 (S.D.N.Y. Nov. 28, 2018). Netflix and Warner Bros. negotiated the settlement of the copyright lawsuit brought by the Satanic Temple for the alleged misuse of its androgynous goat-headed deity statue in the series “Chilling Adventures of Sabrina.” The Temple sought $50 million in damages, but the financial terms of the settlement were not disclosed. Complaint available here.

Lehmann Maupin v. Yoo, No. 1:18-cv-11126 (S.D.N.Y. filed Nov. 29, 2018). Lehmann Maupin Gallery filed suit against their former director Bona Yoo, who jumped ship to join Lévy Gorvy after giving her employer one day’s notice. The complaint seeks to “prevent Yoo from gaining an unfair competitive advantage and recover damages it says it incurred when Yoo corrupted or deleted confidential information.” Bona Yoo has filed a response, where she claims her former employers filed suit out of spite.

From the December 2018 Newsletter

Otto v. Hearst Communications, Inc., No. 1:17-cv-04712 (S.D.N.Y. Dec. 10, 2018). A case over a photo misused by several media sources to headline stories about US President Donald Trump highlights how Copyright law extends to amateur photographers, such as Jonathan Otto in this case. The Southern District allowed Otto to claim originality in his work, and found that Esquire.com’s use of the 2017 photo of Trump at a private wedding in an article about him crashing the wedding was not fair use. Order available upon request.

His All Holiness, Bartholomew I, The Archbishop of Constantinople, Newrome, and Ecumenical Patriarch et al., v. Princeton University, No. 3:18-cv-17195 (D.N.J. filed on Dec. 13, 2018). Princeton University’s collection includes Byzantine Era Manuscripts that church leaders argued were stolen from a monastery in Greece during World War I. Evidence put forth by the church leaders includes a Princeton published book stating that the manuscripts had been taken by Bulgarian guerrilla forces in 1917, while Princeton remains confident in their provenance research as evidence that the manuscripts were not looted. Complaint available upon request.

Cenedella v. Metropolitan Museum of Art et al., No. 1:18-cv-01029 (S.D.N.Y. Dec. 19, 2018). Artist Robert Cenedella’s suit against five major New York museums was dismissed for insufficient evidence. He was claiming that the Metropolitan Museum of Art, the Whitney Museum of American Art, the Museum of Modern Art, the Solomon R. Guggenheim Museum, and the New Museum were conspiring to exclude him and other deserving artists from their collections and exhibition programs, for not being represented by major galleries. Order available upon request.

U.S. v. One Painting Entitled “Secret Departure of Ivan the Terrible Before the Oprichina”, No. 1:18-cv-03015 (D.D.C. filed Dec. 20, 2018). The U.S. Attorney filed a notice of forfeiture of an oil painting entitled “Secret Departure of Ivan the Terrible Before the Oprichina” by Russian artist Mikhail N. Panin. The piece hung on the walls of the Connecticut home of Holocaust survivor Gabby Tracy; it was sent for auction in 2017 before research revealed that it had been looted from the Dnepropetrovsk Art Museum in Ukraine during WWII. The government seized the painting right before the auction, which was not contested by the Tracys. The Notice functions as a way to make sure no one else claims ownership before the FBI gives the painting back to Ukraine. Complaint available here.

Schmitt v. Artforum Int’l Magazine, Inc., 2018 Slip Op 33345(U) (N.Y. Sup. Dec. 20, 2018). The New York Supreme Court has dismissed Amanda Schmitt’s retaliation claim against her former employer and publisher of Artforum Magazine, Knight Landesman. Schmitt claimed that Landesman had harassed her and other women while working at Artforum. However, the statute of limitations on workplace sexual misconduct had expired. Therefore, Schmitt proceeded under a retaliation claim. Judge Nervo dismissed the case finding that the five-year gap between Schmitt’s employment at Artforum to the confrontation in question had removed the requisite nexus to sustain her claim.

Close v. Sotheby’s, No. 16-56234 (9th Cir. 2018). The panel of 9th Circuit judges held that claims under the California Resale Royalty Act (CRRA) were preempted by the Federal Copyrights Act 1976. Interestingly, the panel awarded Defendants attorney’s fees under the CRRA on December 3rd; despite holding that the Act was expressly preempted. Read our case review hereOrder available here.

From the April 2014 Newsletter

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ACA Galleries, Inc. v. Joseph A. Kinney, 09-CIV-6649 (2nd Cir, Jan.15, 2014) — court held that a gallery purchasing a work of art should investigate and consult experts before purchasing a painting and cannot maintain a claim against the seller because it failed to investigate the authenticity of the painting.

Basquiat v. Christie’s, Inc, (S.D.N.Y. Mar. 4, 2014) — Plaintiffs, sisters of the late Jean-Michel Basquiat, brought action against the auction house for failing to submit items consigned for sale to the Basquiat Estate for review. Christie’s postponed the sale of the contested property pending the resolution of the dispute. Plaintiffs are represented by James Cinque.

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

Caterbetti v. Bloomgarden, et al. (NY Sup. Ct. Complaint Mar. 28, 2014) — Argentine citizen is suing individual defendants associated with Belensky Gallery in New York for loosing and/or damaging artworks consigned to them. Plaintiff is seeking damages for an amount in excess of $500,000.

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

Greene v. Paramount Pictures Corporation, Complaint, 14-cv-01044 (E.D.N.Y. Feb. 18, 2014) — Greene, an attorney, is seeking damages for unauthorized use of his likeness for commercial purposes in making of “The Wolf of Wall Street.” See film, think Dinner & a Movie.

Latipac, Inc. v. Metropolitan Museum of Art (N.Y.S. Mar. 10, 2014) — Plaintiff and Defendant own two identical items and Plaintiff seeks to sell it. Museum is understood to be denying the authenticity of the object owned by the Plaintiff (see Museum item: Head of King David, ca. 1145) and Plaintiff is seeking injunction against slander of title and defamation among other actions.

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

Yale University v. Konowaloff (Conn. Mar. 20, 2014) — J. Alvin Thompson ruled against plaintiff Pierre Konowaloff, having used act of state doctrine “in which U.S. courts don’t examine the validity of foreign governments’ expropriation orders.” Source. Our earlier report on Konowaloff claims available here.

From the 2014 Newsletters

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BRAND X EDITIONS, LTD. v. Wool, 2014 N.Y. Slip Op 50005 (Sup. Ct. 2014) — breach of contract for production of prints in a work for hire; preliminary conference scheduled for Jan. 28, 2014, at Supreme Court, New York County, 60 Centre Street, Room 228, New York, NY.

Davidson v. PERLS, 2013 N.Y. Slip Op 52208 (Sup. Ct. 2013) — case dismissed on statute of limitations grounds.

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

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.

Greenfield v. Pankey, 1:13-cv-09025-PGG (S.D.N.Y. Dec. 27, 2013) — copyright infringement case filed by a New York photographer against a painter in Texas. Summary.

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-c. 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.

Latipac, Inc. v. Metropolitan Museum of Art (N.Y.S. Mar. 10, 2014) –– Plaintiff and Defendant own two identical items and Plaintiff seeks to sell it. Museum is understood to be denying the authenticity of the object owned by the Plaintiff (see Museum item: Head of King David, ca. 1145) and Plaintiff is seeking injunction against slander of title and defamation among other actions.

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 9th 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 9th Circuit was therefore unable to sustain it.

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

USA v. Ramnarine,( S.D.N.Y. Jan, 2014) – foundry owner pleaded guilty to creating unauthorized works by Jasper Johns and others.