Center for Art Law

At the crossroads of visual arts and the law.

Case Law Corner

Since 2015, Center for Art Law has been keeping track of lawsuits involving artworks, cultural property, artists’ estates, galleries, etc.

From the October 2019 Newsletter

United States

The People of the State of New York v. Timothy Sammons, No. 01995-2015 (N.Y. Sup. Ct. July 2019). Timothy Sammons, a British art dealer, has been sentenced to four to twelve years in prison after pleading guilty to larceny, scheming to defraud and other criminal counts. He brokered the sale of artworks to customers in the U.S., the U.K. and New Zealand and subsequently used the proceeds for his personal expenses, reportedly including first-class flight travel, credit card bills and private club memberships. He also used the artworks sold as collateral while obtaining private loans. The total value of his theft, estimated for $10-30 million and spanning more than four victims across the aforementioned countries, involved famous artworks such as “Buste de Femme” by Pablo Picasso, “Reverie” by Marc Chagall, “Calanque de Canoubiers (Pointe de Bamer)” by Paul Signac and many others.

Austin Mills v. Netflix. Inc et al., No. 2:19-cv-07618-AS (C.D. Cal. filed Sept. 03, 2019). Austin Mills, a “social media personality and entrepreneur” is suing Netflix for copyright infringement, following their use of his video footage in their documentary Fyre Festival: The Greatest Party That Never Happened. Mills attended the infamous festival and documented part of the chaos that ensued, before uploading this footage to Youtube in a video titled “Fyre Festival COMPLETE Disaster. VLOG of Chaos!”. The co-producers of the film approached Mr. Mills to license his video for their film, but no agreement was reached and Mr. Mills alleges he never gave consent to the use. This marks the third lawsuit filed against the co-producers regarding the footage they used in the Fyre Festival film. Complaint available upon request.

Payne v. City of Charlottesville, No. CL 17-145 (Va. Cir. Ct. Sept. 11, 2019). After a 2017 Charlottesville City Council vote to remove the confederate statues of Robert E. Lee and Stonewall Jackson, inspiring the white supremacist Charlottesville rally, residents filed lawsuits arguing that the removal violated a historical preservation statute that prevented the removal of war memorials. This month, Judge Moore ruled in favor of the residents and, further, issued a permanent injunction to prevent their removals. Addressing the possible racist intent of the historical preservation statute, Judge Moore stated “Certainly, [racism] was on their minds, but we should not judge the current law by that intent.” Court docket here

Mercedes Benz, USA, LLC v. Lewis et al., No. 19-10948, 2019 U.S. Dist. LEXIS 154818 (E.D. Mich. Sept. 11, 2019). The U.S. District Court for the Eastern District of Michigan denied four artists’ motions to dismiss the declaratory relief actions sought by Mercedes Benz. Mercedes Benz contended that their Instagram posts, which featured their cars with the artists’ murals in the background, did not constitute any copyright law violations. The artists sought to dismiss the motion on the grounds that (1) the action was not ‘ripe’ since the artists had not registered their copyrights with the U.S. Copyright Office, and (2) the public’s right to photograph publicly visible buildings under the Architectural Works Copyright Protection Act 1990 did not apply here as the murals met the relevant ‘pictorial, graphic and sculptural’ requirement for copyright protection. The court rejected the first argument, denying that registration is necessary for copyright protection. The court did not rule on the second argument at this stage but stated that Mercedes Benz had a ‘plausible’ claim to a right to photograph the buildings containing murals. Complaint available here and order available here.

De Fontbrune v. Wofsy, No. 5:13-cv-05957-EJD, 2019 U.S. Dist. LEXIS 156246 (N.D. Cal. Sept. 12, 2019). A 2012 French judgment will not be recognized in the U.S., ruled the U.S. District Court for the Northern District of California. The French judgment had ordered Alan Wofsy and Alan Wofsy & Associates, the publishers of The Picasso Project, reference books intended for “libraries, academics institutions, art collectors and auction houses” and containing copyrighted photographs of Picasso’s works, to pay €2 million to Yves Sicre de Fontbrune, who held the copyright in the Picasso catalogue raisonneé (known in the industry as ‘the Zervos’). The U.S. court first determined that the books would qualify under the fair use doctrine in the U.S. based on its intended consumers, the insignificant percentage of Catalogue material used (less than 10%) and the lack of business competition between the Catalogue and The Picasso Project. The court then declared it “repugnant” to “U.S. public policy promoting criticism, teaching, scholarship and research” that French law did not contain a comparable doctrine or provision. Accordingly, in the “interest of justice”, the court denied recognition of the French judgment. Full decision here.

International 

France | Wealthy art collectors Bruce and Robbi Toll will not have their case heard by the Conseil constitutionel [the French Supreme Court] in the matter of the Nazi-looted painting “La Cueillette” by Camilla Pissaro to the descendants of Simon Bauer, a Jewish businessman. Purchased by Bruce Toll in 1996 at Christie’s, New York for $880,000, the painting was lent to a Paris museum in 2017, where the heirs of Bauer discovered its existence and sought to claim it back. The Paris lower court upheld the French rule that seizures carried out during the German Occupation as well as further business transactions of the items are “null and void” and that subsequent purchasers can never have good title. On appeal, the Toll argued that this rule was unconstitutional, as going against their right to property, which the Cour de Cassation [the French high court] refused to refer to the Conseil and will soon consider the appeal on its merits. See our case review

Austria | Thomas K, as identified in court documents, visited the town of Gerlos in the Tyrolean Alps about a year ago. Following his stay at a four-star hotel, he posted online reviews of the hotel on Booking.com where he criticized the owners for having a portrait of a “Nazi grandpa”, pictured wearing a uniform and a swastika. Two such portraits were displayed in the lobby – one of an older man and one of a younger man, wearing a uniform with an eagle and a swastika. The hotel owners claimed that the man in the portrait was part of Wehrmacht, the unified armed forces of Nazi Germany, rather than the Nazi party, but Thomas K was able to confirm through archives that the man in the portrait was in fact a member of the Nazi party. The owners of the hotel are now suing Thomas K for defamation. The Innsbruck court granted the hotel a preliminary injunction against Thomas K, holding that the owner’s interest in protecting her reputation outweighed Thomas K’s right to freedom of expression. Thomas K has counter-sued in Germany, alleging harassment by the owner to take down his review. The trial has not concluded yet.

Portugal | José Berardo, dubbed the “Portuguese Charles Saatchi”, will forfeit his $352-million-worth collection due to unpaid loans totaling $1.1 billion. Using his collection as collateral for the bank loans and after failing to repay his debts, a joint lawsuit was filed by the banks. The Portuguese authorities were allowed to proceed with the seizure of works currently on loan to the Berardo Collection Museum in Lisbon.

Brazil | In a hasty lawsuit, the Brazilian Supreme Court overruled the censorship of a Marvel comic book, which city officials sought to prevent from being displayed at the Rio de Janeiro Bienal do Livro because it contained sexually explicit content (i.e. two men kissing). The Court preferred “the free flow of ideas, the freedom of artistic expression and the freedom of expression in this country” over protecting the sensitivity of young children and teenagers.

From the September 2019 Newsletter

United States

Urbain Pottier v. Hotel Plaza Lasdelicias, Inc., 379 F.Supp.3d 130 (2019). In May 2019, the District Court of Puerto Rico decided that street artist Patrick Urbain Pottier had no claim against the destruction of a commissioned, site-specific mural that he created for a hotel bar in Ponce, PR. The bar having moved, the hotel copied the mural onto wallpaper to move it to the new location and covered the original mural without seeking the artist’s consent. While the court held that the artist had no moral rights over the site-specific piece, the hotel was nonetheless liable for copyright infringement based on the unauthorized copy of the work onto wallpaper. The decision is available here.

Heritage Capital Corporation et al. v. Christie’s Inc et al, No. 3:16-cv-03404-D (N. D. Tex., July 3, 2019). Putting an end to a suit brought in 2016 against Collectrium and its parent company Christie’s, Heritage Auctions was awarded $49 million in damages by arbitral award. The suit, ultimately settled through arbitration and recently closed in court, was based on the claim that the staff behind Christie’s Collectrium data base created various accounts and harbored data sets stolen from Heritage Auctions. While it was clear that “Collectrium knowingly violated Heritage’s user agreement and copyright registrations in creating multiple user accounts to scrape the company’s auction listings, a practice it maintained over a period of two years,” Christie’s was exempted from liability, thereby claiming victory. The motion to confirm the arbitral award is available upon request.

Chris A. Williams v. Hy-Vee, Inc. et al., No. 2:2019-cv-06671 (C.D. Cal. filed on Aug. 1, 2019). Street artist Chris Williams, a/k/a CAW, has filed a copyright lawsuit against grocery store chain Hy-Vee, claiming that the company used his 2018 mural in Des Moines, Iowa, in the background for an advertising campaign aired during the Super Bowl and thereafter. The complaint explains that the artist never gave his authorization and that he “has carefully avoided any association with corporate or mass market consumerism.” Complaint available upon request.

LeVeille v. Upchurch, No. 3:19-cv-00908 (M.D. Fla. filed Aug. 5, 2019). Artist Jacob Aaron LeVeille filed a lawsuit against rapper Ryan Edward Upchurch, for firing multiple bullets at artworks the latter had commissioned––and not paid for–– and adding his own name onto the canvases. LeVeille is seeking injunctive relief and compensatory damages under VARA’s right against intentional distortion and mutilation that are prejudicial to the visual artist’s honor or reputation. Upchurch may argue fair use and that he created entirely new artworks commenting on the original works. The complaint is available upon request.

Kush et al. v. Grande et al., No. 2:19-cv-00186-GMN (D. Nev. Aug. 19, 2019). The lawsuit between visual artist Vladimir Kush and pop singer Ariana Grande has been settled. The suit was based on the singer’s music video for her single “God is a Woman”, which the artist accused of being a rip-off of his paintings.

Dua et al. v. New York City Department of Parks and Recreation et al., 2019 NY Slip Op 06154 (N.Y. App. Div. Aug. 20, 2019). The Appellate Division of NY Supreme Court decided that the Manhattan Department of Parks and Recreation can restrict the number of art vendors in four parks, on a first-come, first-served basis. The vendors unsuccessfully claimed violation of free speech and equal protection rights under the New York State Constitution. The decision is available here.

Tananbaum v. Gagosian Gallery, Inc.et al., No. 651889/2018 (NY Sup. Ct., Aug. 20, 2019). In the lawsuit by collector Steve Tananbaum against the Gagosian Gallery over the delayed delivery of three sculptures by Jeff Koons, a New York state supreme court judge has ruled against the defendant’s motion to dismiss based on Gagosian’s breach of contract. Arguments are based on the New York Arts and Cultural Affairs Law and whether the sculptures are “limited-edition multiples,” “fine art,” or “copies.” The decision is available upon request.

International

France | Shortly after a new law was passed in France for the conservation and restoration of Notre-Dame Cathedral in Paris, an environmental group sued the government for their breach of duty of care, with regards to their slow response and passivity in preventing the large-scale release of lead into the air during the Notre-Dame fire. 

France | In March 2018, French courts dismissed the case against Facebook brought by the French schoolteacher whose account was closed after he posted a photograph of Courbet’s “L’Origine du Monde” (1866). Last month, the parties have agreed that Facebook would make a donation to Le Mur, a Paris-based street art group, putting an end to the 8-year battle.

France | On August 29, 2019, the Paris lower court dismissed the claims of the heirs of art dealer René Gimpel who sought the return of three Derain paintings. While it is certain that Gimpel sold the artworks during WWII, the court ruled there was too much uncertainty to determine whether the paintings had been sold under duress, underscoring the strict burden of proof required by French courts. 

Italy | Custody over Leonardo da Vinci’s “Isleworth Mona Lisa”, also known as “the Earlier Mona Lisa” is to be decided on September 9, 2019 by an Italian court. The painting is owned by an international consortium of anonymous collectors, and usually resides in a Swiss vault. The plaintiffs, the heirs of a man who bought a quarter share, are seeking to identify the people who control the artwork, after they had not been consulted before the work was exhibited in Florence. 

Netherlands | Artist Ai Weiwei prevailed in his lawsuit against the car company Skandinavisk Motor Co. A/S, for the company’s use of the artist’s work “Soleil Levant” (2017) in the background of an advertisement for the Volkswagen Polo. Displayed in the windows of the Kunsthal Charlottenborg in Copenhagen, the work was created in 2017 to mark World Refugee Day, which the court used to justify their decision, seeing as the use was in “clear contradiction” with the artist’s intent and the artwork’s message. 

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