Art Law in The Supreme Court

December 29, 2020

By Talia Berniker and Sabrina Soffer.

Few art law cases have made their way to the United States Supreme Court. Those that did get accepted for review by the highest court of the land hold significance as they determine how historic artifacts are managed, how art is created and funded, and to what extent art can be censored. The Supreme Court’s jurisdiction extends to the First Amendment, freedom of expression, oversight of Congressional power under Article 1 Section 8, conflicting lower court rulings on copyrightable subject matter, and the Foreign Sovereign Immunity Act (“FSIA”), just to name a few key issues. In examining the cases the Court has heard, it is clear that most of the rulings deal with intangible intellectual property rights. Art law cases in the Supreme Court occupy unique socio-political dimensions—as art law impacts a range of legal topics from free speech to art restitution.

Seeing that art law can be complicated, and at times abstract, the Supreme Court usually steps in only when a bright line rule is formulated in the lower courts that hinders creativity, or when lower courts cannot agree on the standards for an intellectual property test. In light of recent changes in the composition of the Supreme Court, the following inquiry will examine the art law cases the Supreme Court has heard, declined to hear, and agreed to hear to uncover the impact of the Supreme Court on art law.

Historical Origins

Early on, back in the 19th century, the Supreme Court addressed questions of art law when they began the difficult task of defining art and sculpture for purposes of taxation and subject matter of protection. This task fell in line with previous decisions from the Court, wherein the Supreme Court often strays from ruling on a bright line, and strives to find an all encompassing definitional standard. However, when it came to definitional standards of art, a broad definition led to multiple questions of what could be protected as art and what could not.

In the 1883 Tutton v. Viti decision, the Supreme Court evaluated the artistic quality of marble sculptures that were based upon another sculpture.^[1] The court concluded that even though the design was copied from another artist, the marble block could still be considered high art. The Court stated there is no difference between the artistic skills it takes to create an original or a copy. “An artist’s copies of antique masterpieces are works of art of as high a grade as those executed by the same hand from original models of modern sculptors.”^[2] Thus, the Court established a precedent focused on craftsmanship, deferring to the creative rendering when evaluating art.

Additionally cases such as the 1884 Burrow-Giles Lithographic Co. v. Sarony case, where the Supreme Court upheld Congressional expansion of Copyright protection to photography,^[3] or Stewart v. Abend, where the Court further clarified the rights that Copyright protection granted its users, occupy an important place in the history of art law cases.^[4] Lastly in Eldred v. Ashcroft (2003), the Court affirmed Congressional extension of Copyright Protection (Copyright Term Extension Act) for an additional 20 years, commensurate with the European Union guidelines,^[5] These decisions set important precedents for future art law cases.

Key Cases the Supreme Court Heard

Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903)

Art law has been a subject of discourse in the Supreme Court since the 1880s, when the Court had to shed light on how art would be evaluated in order to consider if it could be protected. In Bleistein v. Donaldson Lithographing Co. the Court found that advertisements were protected by copyright— demonstrating yet again that it is not the job of the Court to evaluate the nature of a creative item, even if it is used commercially. ^[6] Justice Holmes noted:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge.^[7]

This quote echoes the sentiment from the earlier Supreme Court precedent that judges should not be arbiters of culture. These seminal words from Justice Holmes in 1903 continue to frame the art law narrative in the Supreme Court, with mention in the Star Athletica case from 2018.^[8] While the Bleistein case concerned chromolithographs of a circus advertisement, the Court ruled that it was not within their discretion to choose which items were copyrightable based on their artistic value. Underscoring that originality is the root of copyright law, not artistic judgment. “A picture is nonetheless a picture and nonetheless a subject of copyright that it is used for an advertisement. And if pictures may be used to advertise soap, or the theatre, or monthly magazines, as they are, they may be used to advertise a circus.”^[9] This understanding (and case) is a bedrock principle of art law that continues to impact decisions today. After years of trying to decide how “art” would be defined and who could define it, the Court deferred to the judgment of those who made the art themselves.^[10] The aftermath of this ruling continues to inform the ever shifting nature of art law as the influx of modern art changed the definitional standards of “mimicking what is found in nature.”^[11] In response, US customs courts also had to amend their standards of thinking about art for taxing purposes.^[12]

National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)

Perhaps the most notable case heard and decided by the Supreme Court that concerns for artists is National Endowment for the Arts v. Finley.^[13] As background, The National Foundation on the Arts and Humanities Act, passed in 1965, created the National Endowment for the Arts (“NEA”) as an independent federal agency, whose mission is to give Americans the opportunity to participate in the arts, exercise their imaginations and develop their creative capacities, through discretionary federal grants.^[14] The NEA’s broad decision guidelines are: “artistic and cultural significance,” with emphasis on “creativity and cultural diversity, professional excellence,” and the encouragement of “public education and appreciation of the arts.”^[15] In 1990, Congress amended the criteria by requiring the NEA to consider “artistic excellence and artistic merit taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”^[16] This amendment was likely in response to the anger from some congressmen after the NEA grants funded homoerotic photographs by Robert Mapplethorpe, as well as Andre Serrano’s photograph of a crucifix in his own urine.^[17] The NEA found themselves in court defending the “decency” standard attached to art work that requested a government subsidy.^[18] Artist Karen Finley, the plaintiff who stands as a class representative for a group of artists, challenged the standard after being rejected for funding on a performance art piece that recounted a sexual assault. Along with three other artists, Finley won in the lower courts but the Supreme Court Justices agreed with the NEA, upholding the decency standard.^[19] The Court ruled that the standard did not encapsulate viewpoint discrimination nor run afoul of the first amendment because those artists are free to do the work they please just without funding from the government.^[20] Additionally, the Court noted that Congress has wide latitude in its spending power thus decisions on funding do not curb freedom of expression. This case was extremely important, as it continues to impact the arts industry, and the process of creative art making. While art is always subjective to an extent, this standard allows the government to rule on what “decent” art is.

Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003)

This case dealt with delineating the differences in coverage of the Lanham Act’s (for trademark) “origin of goods” and the Copyright Act’s intended use and purpose to protect creative expression. The case follows Dastar Corporation who substantially copied the material of Fox’s WWII television campaign and sold the series for less. While Fox originally held the copyright for the television series, they never renewed the copyright, leaving the series in the public domain until 1988, when Fox reacquired the television rights.^[21] Fox sued Dastar alleging that Dastar could not release the series without attributing credit to Fox, violating the Lanham Act. The Lanham Act’s origin of goods refers to the source of the goods not the producer or author. This action is reserved for copyright infringement. The court sided unanimously with Dastar stating that the Lanham Act does not prevent the unaccredited copying of copyrighted work. Thus, Dastar was the “origin” of the products it sold as its own, without acknowledging the series, because it marketed a video that copied a public domain television series.^[22]

Republic of Austria v. Altmann, 541 U.S. 677 (2004)

Left: Gustav Klimt, “Portrait of Adele Bloch-Bauer” (1907); right: Gustav Klimt, “Portrait of Adele Bloch-Bauer II” (1912), in the case of Republic of Austria v. Altmann, 541 U.S. 677 (2004).

Another important art law case the Supreme Court agreed to hear regarded the restitution of Nazi stolen art. In its 2004 decision Republic of Austria v. Altmann,^[23] the Court applied the Foreign Sovereign Immunities Act of 1976 (“FSIA”),^[24] retroactively. In the case, Maria Altmann, an Austrian-American Jewish refugee residing in California and heir to Nazi-stolen art, sued the Republic of Austria under FSIA to recover six artworks by Gustav Klimt, including the famous “Portrait of Adele Bloch Bauer I” (1907), also known as the “Woman in Gold” which represents Altmann’s aunt who died in 1925 leaving a will in which she asked that the paintings be bequeathed to the Austrian Gallery Belvedere in Vienna. The works were owned by Altmann’s uncle, “sugar magnate” and patron of the arts Ferdinand Block-Bauer, who had to flee Austria during the Anschluss. In his absence, the Nazis took over his home and divided up his extensive collection. Two of the paintings were sold to the Gallery in 1941-43.

Upon discovering that the paintings had never been donated to the Gallery but were forcibly taken by the Nazis, Maria Altmann sought to recover the paintings. In federal court, she asserted jurisdiction under the FSIA §1605(a)(3), which expressly exempts foreign states from claiming immunity in “all cases involving ‘rights in property taken in violation of international law,’ provided the property has a commercial connection to the United States or the agency or instrumentality that owns the property is engaged in commercial activity here.^[25] Austria argued that the statute does not apply retroactively, and that the paintings were taken in the 1940s when the US definition of immunity was much broader. The Supreme Court concluded that there were strong indications in the text of the statute that Congress intended the act to apply to actions that took place before its passage, thus opening up an avenue for reclamation of Nazi-looted art under FSIA and establishing a new precedent for understanding cultural heritage and repatriation. In the 6-to-3 decision, Justice John Paul Stevens was joined by Justices Stevens, O’Connor, Scalia, Souter, Ginsberg, and Breyer with Justices Rehnquist, Kennedy, and Thomas dissenting. However, the ultimate action was not resolved by the Supreme Court, as it went to Austria where the parties agreed to binding arbitration by a panel of three Austrian arbitrators.^[26] On January 16, 2006, the panel ruled that Austria was legally required to return the art to Altmann and the other family heirs, and in March of the same year Austria returned the paintings. The “Woman In Gold” is now on display at the Neue Galerie in New York.

Star Athletica, LLC. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017)

In 2017, the Supreme Court chose to rule on another art-related case when they examined the test for copyrightable subject matter when the copyright concerns a feature incorporated into the design of a useful article. The case, Star Athletica v. Varsity Brands^[27] involved two cheerleading uniform companies arguing over whether designs are copyrightable, separate, and apart from the uniform that they make up. The court decided that a feature is copyrightable if it (1) can be perceived as a two or three dimensional work of art separate from the useful article (not so onerous that the court can spot the art) and (2) would qualify as a protectable pictorial, graphic, or sculptural work— either on its own or fixed in some other tangible medium of expression, i.e. if it were imagined separately form the useful article into which it is incorporated.^[28] This second part was contentious, and the Court ruled that imagined separability, rather than physical separability, was the standard. When looking at the two designs, the Court ruled that the designs were protected and that the imaginative separability of the design of chevrons from the utility of the cheerleading uniform need not be physical but could be conceptual. The most fervent dissent pointed to Marcel Duchamp’s readymades and van Gogh’s painting of old shoes, to say that there must be physical separation; van Gogh obviously could not get a design patent for actual shoes and Duchamp’s shovel could not be physically separated from the usefulness. The impact of this case has the potential to be far-reaching, as conceptual separability could allow for many “decorations” to be considered copyrightable on top of a useful article (a clothing structure). However, the Supreme Court did not rule on the “originality” of designs themselves, which may pose problems for designers wanting protection of minimal design layouts.

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018)

One of the few cases the Supreme Court accepted for review was Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, also known as the “wedding cake case”.^[29] The case involved Charlie Craig and David Mullins who requested a cake from Masterpiece Cakeshop in Lakewood, Colorado for their wedding. The shop’s owner Jack Phillips declined to do so stating the request went against his religious beliefs. When the case reached the Supreme Court, the latter ruled 7-2 in favor of the cakeshop owner, compelling him to decorate a cake for a same-sex couple runsafoul of the free exercise clause, and his religious beliefs. The Court explained that while gay persons and same-sex couples are afforded civil rights protections under the laws and the Constitution, religious and philosophical objections to same-sex marriage are protected views and could also be protected forms of expression. For Phillips, creating cakes was a form of artistic expression and a component of his sincere religious beliefs. the Court concluded that the Colorado Civil Rights Commission’s actions violated the State’s duty under the First Amendment not to use hostility toward religion, or a religious viewpoint, as a basis for laws or regulations. Under the facts of this case, the Court determined that Phillips’ religious justification for his refusal to serve Craig and Mullins was not afforded the neutral treatment mandated by the Free Exercise Clause. The case directly relates to art law, as it explores what constitutes artistic expression— specifically as it relates to religious liberties and the free exercise clause of the Constitution.^[30]

In an amicus brief written by the Center for Religious Expression in support of the cakebaker, 479 “creative professionals” stated that:

Jack Phillips is a creative professional. Wedding cakes are his works of art. In lieu of watercolors or pastels, Phillips uses fondant icing or frosting. He does not wield brushes, but icing bags and various tips, in carrying out the designs. The cake itself acts as his canvas and conveys his message. And Phillips’ shop, Masterpiece Cakeshop, is the gallery where his art pieces are displayed.^[31]

During oral arguments, the Justices also debated the status of an artist and asked themselves if the person who designs the invitations, the wedding ring, or those in charge of hair and makeup for the ceremony would be entitled to refuse to serve a couple based on the similar argument of artistic expression and religious belief. This is the closest that the Court has gotten to defining what is art and what is not. Ultimately, the decision focused more on the retaliatory behavior of the Colorado Civil Rights Commission than on what constitutes art.

Allen v. Cooper, 140 S. Ct. 994 (2020)

Joseph Nicholls, “Capt. Teach alias Black-Beard” (1736), print engraved by J. Basire and reproduced in D. Defoe, A General History of the Lives and Adventures of the Most Famous Highwaymen, Murderers, Street-Robbers, &c. To which is added, a genuine account of the voyages and plunders of the most notorious pyrates (1736), p. 203 (public domain). Source: John Carter Brown Archive of Early American Images.

The most recent case related to art heard and decided by the Supreme Court is Allen v. Cooper.^[32] The case follows Frederick Allen who had been documenting the 1718 shipwreck of Blackbeard’s Queen Anne’s Revenge through photographs, videos, and private research which he registered with the U.S. Copyright Office. The state of North Carolina, where the ship crashed, posted Allen’s work without his permission and ended up in a settlement agreement with Allen.^[33] However, shortly afterward, the state again published Allen’s works and passed “Blackbeard’s Law” which purportedly converted Allen’s work into public record. Allen sued the state for copyright infringement which the state dismissed on grounds of sovereign immunity under the Eleventh Amendment of the U.S. Constitution. Allen then argued that the Copyright Remedy Clarification Act (“CRCA”) abrogates sovereign immunity for copyright infringement. The question the Court argued was whether states can be sued for copyright infringement. The court unanimously sided with Cooper deciding that Congress lacked the authority to abrogate state sovereign immunity from copyright infringement suits. Article I’s Intellectual Property Clause could not provide the basis for an abrogation of sovereign immunity, additionally this was not a Fourteenth amendment concern as the scope of the statutes was not proportional but wide sweeping uniform remedy.^[34] In an opinion concurring in the judgment, authored by Justice Breyer with Justice Ginsburg, Breyer points out the inherent unfairness to creators and artists that arises from the decision and the precedent that controlled the case.^[35]

In the current Supreme Court session, the Justices have already heard two oral arguments, and will decide these art law congruent cases in the coming months. This is especially noteworthy as the makeup of the Court has shifted dramatically with the passing of Justice Ginsburg and subsequent appointment of Justice Barrett. The outcome of these cases will indicate how the court might decide other art law cases in the future.

Pending Cases

Oracle Am., Inc. v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018), cert granted (U.S. Nov. 15, 2019) (No. 18-956)

The Supreme Court has heard legal arguments related to Google LLC v. Oracle,^[36] on October 7, 2020. While this case is not directly concerned with art law, an amicus brief in the case points to the effects that this decision could have on art law related decisions in the future.^[37] This case questions whether copyright can extend to interface software developments with the jury in the lower court finding the use of software in the context of a new program as fair use. However, because fair use is an important concept for artists, who want to maintain control over their copyright, there is a plea for The Court to keep this expanded version of fair use couched to software development.^[38] To that end, there have been amicus briefs from the Rauschenberg and Warhol foundations urging that any statements from the Court be limited to fair use for software development and not the overall fair use doctrine.^[39] The results, of applying this expanded definition of fair use, would have detrimental effects on fair use cases related to art law. While oral arguments were heard on Oct. 7th we await the result of this important decision.

Federal Republic of Germany et al. v. Philipp et al., 894 F.3d 406 (D.C. Cir. 2018), cert. granted (U.S. July 2, 2020) (No. 19-351)

The case of Federal Republic of Germany v. Philipp is the most recent art-related case argued before the Supreme Court in December 2020.^[40] Similarly to the Altmann case, this lawsuit deals with Nazi restitution claims, whereby the heirs to the art have sued the country of Germay under the Foreign Sovereign Immunities Act. The suit centers around the Guelph Treasure trove, a collection of German ecclastical medieval church reliquaries.^[41] It is aptly named after the princely German House of Guelph of Brunswick-Luneburg, which was purchased by a consortium of Jewish art dealers in 1929 and sold to the Nazi-Controlled Prussian government in 1935. The collection is estimated to be worth 200 million euro and is currently held in Berlin’s Applied Arts Museum. Filed in February 2015 by Alan Philipp, Gerald Stiebel, and Jed Leiber, the heirs of the art dealers, the complaint argues that the sale was forced and amounts to an expropriation by the Nazi government. Germany moved to dismiss the case almost immediately, arguing that as a sovereign state it is not subject to the jurisdiction of U.S. courts, and that this was not a situation that falls under the “expropriation exception” of the Foreign Sovereign Immunities Act (“FSIA”).^[42] The decision to deny dismissal was upheld by the US Court of Appeals for the District of Columbia Circuit in 2018 and the Supreme Court granted Germany’s petition for writ of certiorari in July 2020. Oral arguments were held virtually on December 7, 2020 and the Court will decide if Germany has to answer for restitution in a United States court. This case has a particular consequence on the scope of the FSIA: the lower court found that this pressured sale fell under the expropriation exception of the FSIA, thereby broadening the definition to include the forced resale of art dealers’ business inventory.^[43] The market for such a treasure was explained to be non-existent as the owners were Jewish and the Third Reich had effectively and devastatingly boycotted and destroyed Jewish businesses. This is the first time that the Supreme Court has the opportunity to express some views on the topics of forced sales and looted art. During oral arguments, Justice Breyer appeared concerned that broadening the expropriation exception to the FSIA to include forced sales of artworks may open the door to many similar cases. The final decision from the Supreme Court in expected in 2021.

Daniels v. Walt Disney Co., 958 F.3d 767 (9th Cir. 2020) (No. 20-132).

While Disney has been involved in many state and federal court cases over the years, one Disney case holds particular relevance to art law. The case, Daniels v. Walt Disney Co.,^[44] follows Denise Daniels— who created five characters called The Moodsters along with The Moodsters Company in 2005.^[45] The Moodsters were five color-coded anthropomorphic emotions: pink (love); yellow (happiness); blue (sadness); red (anger); and green (fear). Between 2005 and 2009 Daniels met with multiple executives at Disney and pitched them the idea for a movie based on the characters. In 2010, Disney began developing the movie Inside Out which was released in 2015 and featured five anthropomorphized emotions (joy, fear, sadness, disgust, and anger) that live inside the mind of an 11-year-old girl named Riley. Daniels filed suit against Disney in 2017 for breach of an implied-in-fact contract, arising from Disney’s failure to compensate Daniels for the allegedly disclosed material used to develop Inside Out. Daniels then filed an amended complaint, joining The Moodsters Company as a co-plaintiff and alleging copyright infringement of both the individual Moodsters characters and the ensemble of characters as a whole. A character is entitled to copyright protection if (1) the character has “physical as well as conceptual qualities,” (2) the character is “sufficiently delineated to be recognizable as the same character whenever it appears” and “display[s] consistent, identifiable character traits and attributes,” and (3) the character is “especially distinctive” and “contain[s] some unique elements of expression.”^[46] Beyond the emotion each Moodster represented, the court found that the characters lacked comparable identifiable and consistent character traits and attributes across iterations, thus failing the second prong. Therefore, the individual characters were not protected and neither was the story in which they appeared as an ensemble. The Supreme Court has yet to rule on the petition for writ of certiorari.

Cases the Court Declined to Hear

While the Supreme Court has ruled in a number of cases concerning art law matters, there have been more instances where the Court declined to address cases concerning the arts. This is in part because the Court rarely rules on fair use and transformative uses and thus does not regularly question copyright law as it currently stands. Thus, while the following cases were not heard in the Court, they continue to set important precedents in matters of art law.

Close v. Sotheby.’s, Inc., 909 F.3d 1204 (9th Cir. 2018), cert. denied Ap. 1, 2019.

Unlike dozens of other nations, the US does not offer resale royalty rights to visual artists. However, the state of California passed a law obligating art trade members to pay living artists a percentage from resale of their art. Artist Chuck Close accompanied by Laddie John Dill and the estate of Robert Graham,^[47] filed a lawsuit against Sotheby’s and Christie’s Auction Houses, claiming that both auction houses had violated the California Resale Royalties Act.^[48] The case, known as Close v. Sotheby’s,^[49] was brought to the U.S. Court of Appeals for the Ninth Circuit where the court held that the California Resale Royalties Act (“CRRA”)^[50] is preempted by the Copyright Act of 1976 and therefore Close was not entitled to the 5% royalty fee that involved any art sales postdating the Copyright Act’s effective date of January 1, 1978.^[51] However, the court reversed the district court’s dismissal of plaintiffs’ CRRA claims to the extent they involved sales occurring before January 1, 1978 because those claims were not preempted by federal copyright law.^[52] Additionally, attorneys’ fees were granted to Sotheby’s. The Supreme Court declined to hear the case, maintaining the Ninth Circuit’s decision to restrict the CRRA. This is crucial for the art industry, as the fight for resale royalties continues. While these royalties can be negotiated into private contracts, they are not readily available under the Copyright Act and thus, continue to pose a defeating problem.^[53]

Castillo v. G&M Realty, L.P., 950 F.3d 155 (2d Cir. 2020), cert. denied Oct. 5, 2020.

P. Lindgren, “5Pointz Wall” (2011). Credit: P.Lindgren / CC BY-SA.

In 2020, the Court declined to review a case concerning competing rights of artists and real estate owners that emerged from the New York application of the Visual Artists Rights Act to compensate street artists for damage to their work. Castillo v. G&M Realty, L.P. better known as the 5Pointz case.^[54] 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, without providing prior notice to the artists.^[55] In February 2018, the Eastern District of New York awarded $6.75 million to the 21 street artists whose works were destroyed when the building was whitewashed, 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”).^[56] It’s important to note that the 40+ works had attained the required “recognized stature” to be protected against willful destruction. In July 2020, G&M Realty filed a petition with the Supreme Court, claiming that the “recognized stature” threshold violates the Fifth Amendment’s right to due process as it does not define the criteria or methodology to achieve such recognized stature, i.e. “vagueness.” The case was declined by the Supreme Court in October and can be interpreted as a win for the artists, especially because back on remand before the Eastern District, Judge Block “so ordered” G&M Realty to pay an additional $2 million in attorney’s fees in November 2020, putting an end to a 7-year legal battle.^[57] Since the Supreme Court has never interpreted the breadth of VARA, since it was enacted in 1990, oral arguments about street art and property would have been illuminating.

Art in the Supreme Court

While the Supreme Court makes decisions regarding art law, the Court is also home to a significant collection of artworks. The Court has been collecting art since the 1830’s, and even uses their outstanding collection to host historical exhibitions. There is an Office of the Curator at the Supreme Court responsible for collecting art and designing these exhibitions— ensuring these works hold significance to the Supreme Court’s history and Justices. The Curator’s Office continues to build this collection through donations and with the support of the Supreme Court Historical Society.^[58] The collection includes an archive (including historical furniture), fine arts (including portraits, miniatures, and busts of Justices) as well as graphic arts (including photographs and litographs), and memorabilia associated with the Justices.^[59]While the Supreme Court holds a significant collection of art, the Court and Justices also appear in works reflective of the American tradition. For example, Nelson Shanks’s The Four Justices, is a prized work in the National Portrait Gallery paying tribute to the four female justices who had served on the U.S. Supreme Court when the painting was commissioned in 2013.^[60] Additionally, the late Ruth Bader Ginsburg has been memorialized through a range of artistic projects throughout the United States— including plans for a statue in New York City to honor Justice Ginsburg’s more than a quarter-century legacy on the Supreme Court bench. Thus, while the Supreme Court itself occupies an important role in collecting historic American artwork, the impact of the Justices themselves is reflected in the practice of arts activism in the United States.

The Future of Art Law Cases in the Supreme Court

Arguing in front of the highest judges in the land is no small affair, which attorney Nicholas M. O’Donnell who represented the respondents in Federal Republic of Germany et al. v. Philipp et al. this December compares to “studying for a test.” He says: “I listened to hours and hours of past oral arguments, both on topics like mine and unrelated, to familiarize myself with the various Justice’s style and tendencies.”

Arguments being held remotely during the COVID-19 pandemic, O’Donnell also notes that “the telephonic format that the Court has been using is obviously a big shift” but gives one “the chance to speak directly to each Justice, which is rarely the case in the courtroom.”

Supreme Court decisions are awaited with much anticipation. In our case, this is especially true when these decisions have an impact on artistic expression and property rights in art. The rare cases decided by the Justices hold significant weight and we look forward to reading the court’s upcoming decisions.

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Endnotes:

1. Tutton v. Viti, 108 U.S. 312 (1883). ↑
2. Id. at 313-14. ↑
3. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). ↑
4. Stewart v. Abend, 495 US 207, 228 (1990). ↑
5. Eldred v. Ashcroft, 537 U.S. 186 (2003). ↑
6. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903). ↑
7. Id. at 252. ↑
8. Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017). ↑
9. Bleistein at 251. ↑
10. See U.S. v. Perry 146 U.S. 71 (1892). ↑
11. Emily Lanza, Brancusi’s Bird in Space: Is it a Bird or is it Art?, The Legal Palette (Mar. 21, 2020). ↑
12. See U.S. v. Olivetti, 7 Ct. Cust. 46, 48 (1916) (“Brancusi Case”). ↑
13. National Endowment for the Arts v. Finley, 524 US 569 (1998). ↑
14. Emily Lanza, The Legislative History of NEA and NEH, Center for Art Law (March, 22 2017). ↑
15. Oyez, National Endowment for the Arts v. Finley (last visited Dec. 22, 2020). ↑
16. Lanza, Supra. ↑
17. Martha Lufkin, Congress Can Enforce “decency” When Making Arts Grants, US Supreme Court Rules, The Art Newspaper (Sept. 1, 1998). ↑
18. Lanza, Supra. ↑
19. Finley, 524 US 569. ↑
20. Id. ↑
21. Oyez, Dastar Corporation v. Twentieth Century Fox Film Corporation (last visited Dec 22, 2020). ↑
22. Id. ↑
23. Republic of Austria v. Altmann, 541 US 677 (2004). ↑
24. Foreign Sovereign Immunities Act, 28 U.S.C. § 1605 (1976). ↑
25. Id. § 1605(a)(3) (1976), cited by Republic of Austria at 685-86. ↑
26. Oyez, Republic of Austria v. Altmann (last visited Dec 22, 2020). ↑
27. Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017). ↑
28. Id. ↑
29. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1728 (2018). ↑
30. Ben Davis, Why The Legal Strategy Behind Masterpiece Cakeshop Gets Art Backwards-and Why It Should Make People Nervous, ArtNet News (June 7, 2018). ↑
31. Brief of 479 Creative Professionals as Amici Curiae In Support of Petitioner, at 5, Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission, 138 St. Ct. 1719 (No. 16-111). ↑
32. Allen v. Cooper, 140 S. Ct. 994 (2020). See also Alexa Sussmane, Case Review: Allen v. Cooper (2020), Center for Art Law (May 11, 2020). ↑
33. Oyez, Allen v. Cooper (last visited Dec 22, 2020). ↑
34. Allen v. Cooper, 140 S. Ct. 994, 1007 (2020). ↑
35. Id. ↑
36. 886 F.3d 1179, 1186 (Fed. Cir. 2018). ↑
37. Brief of The Robert Rauschenberg Foundation and The Andy Warhol Foundation for The Visual Arts, Inc. As Amici Curiae in Support of Neither Party, Oracle Am., Inc v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018), (No. 18-956). ↑
38. Id. ↑
39. Id. ↑
40. Philipp v. F.R.G., 894 F.3d 406, 408 (D.C. Cir. 2018). ↑
41. Nina Mesfin, HEAR and the Guelph Treasury Recovery Efforts: Restitution in Review, Center for Art Law, (June 7, 2016). ↑
42. Philipp, 894 F.3d 406, 408. ↑
43. Id. at 408. Isaac Kaplan, 5 Lawsuits That Could Reshape the Art World in 2018, Artsy, (Jan. 1, 2018). ↑
44. Daniels v. Walt Disney Co., 958 F.3d 767 (9th Cir. 2020). ↑
45. Id at 771. ↑
46. Id. ↑
47. Ethan T. Ashley, Case Review: Droit de suite… Not so Sweet, Center for Art Law (Sept. 27, 2018). ↑
48. Grace Monroy and Scott J. Sholder, Close v. Sotheby’s: Federal Copyright Law Preempts California State Law on Downstream Artist Royalties, Cowan Debaets, Abrahams & Sheppard LLP Law Blog (July 18, 2020). ↑
49. Close v. Sotheby’s, Inc., 909 F.3d 1204, 1207 (9th Cir. 2018) ↑
50. California Resale Royalties Act, Cal. Civ. Code § 986 (1976). ↑
51. Copyright Act, 17 USC § 101 (1976). ↑
52. Close v. Sotheby’s, Inc., 909 F.3d 1204, 1207 (9th Cir. 2018). ↑
53. Ashley, Supra. ↑
54. Castillo et al. v. G&M Realty L.P. et al., 958 F.3d 767 (2d Cir. 2020). ↑
55. Louise Carron, Case Review of the 5pointz Appeal: Castillo et. al. v. G&M Realty L.P. (2020), Center for Art Law (March 2, 2020). ↑
56. Visual Artists Rights Act of 1990, 17 U.S.C. § 106A. ↑
57. 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-3220 (E.D.N.Y Nov. 25, 2020). ↑
58. The Supreme Court of the United States, History of the Collection (last accessed Dec. 22, 2020). ↑
59. Id. ↑
60. National Portrait Gallery at the Smithsonian Institute (Last accessed Dec. 22, 2020). ↑

About the Authors:

Talia Berniker is a Fall 2020 graduate intern. She graduated from the Robert D. Clark Honors College at the University of Oregon in 2018 with majors in Advertising and Media Studies and minors in Multimedia Design and Political Science. She is currently pursuing an M.A. in Arts Politics at New York University’s Tisch School of the Arts.

Sabrina Soffer is a Fall 2020 Legal Intern at the Center for Art Law. She is currently a second year law student at St. John’s University School of Law. She has an undergraduate degree from Binghamton University in Politics Philosophy and Law and Art History. She hopes to continue on the art law path and pursue a career in Intellectual Property transactional work.

Acknowledgment: Many thanks to Nicholas M. O’Donnell, Partner at Sullivan & Worcester LLP, for sharing his insights on preparing for oral arguments before the Supreme Court in December 2020.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Opinions expressed here are those of the author.