Keeping track of lawsuits involving artworks, cultural property, artists’ estates, galleries, etc.
From the November 2019 Newsletter
Ellenville LLC v. Museum of World War II Inc., No. 1:2019-cv-07020 (S.D.N.Y. filed July 26, 2019). In July of this year, billionaire art collector Robert Lauder had filed a complaint against the International Museum of World War II for allegedly “stonewalling” him because of their refusal to return World War II memorabilia to him, which he had purchased in 2018 for $25 million. These include 3,500 books, 500,000 photographs, 100 uniforms, 1,650 posters, and a Russian anti-tank cannon. Despite Lauder originally agreeing that the museum could keep the objects on view through the end of 2019, he sought repossession of the collection. This suit has just been dismissed with prejudice. Docket available here.
FAP GmbH vs. Inigo Philbrick et. al., No. 2019-027931-CA-01 (Fla. Cir. Ct. filed Sept 20, 2019). Fine Art Partners (FAP), a German financial services firm specializing in the art world, has sued Inigo Philbrick and his gallery for breach of contract regarding the location and ownership of certain artworks. The artworks in question are worth $14 million and include pieces by Yayoi Kusama, Donald Judd, and Christopher Wool. FAP alleges that it purchased these works through Philbrick and his gallery and that these works are currently located in the gallery and in an art storage facility Artmoves Florida. The complaint alleges that, instead of moving the works to “independent specialist storage facilities”, Philbrick is trying to sell the works to a third party. FAP seeks recovery of the works, or damages. Case docket available here.
Hopi Tribe et. al. v. Donald J. Trump, No. 1:17-cv-02590-TSC (D.D.C. filed Sep. 30, 2019). Judge Tanya Chutkan has rejected the government’s motion to dismiss legal actions brought against the government’s move to shrink the iconic Bears Ears National Monument and the Grand Staircase-Escalante National Monument, allowing the legal actions brought against the administration by environmental groups and five Native American tribes to proceed. The administration reduced the size of Bears Ears by about 85 percent and reduced the Grand Staircase by about half. Docket available here, and order available here.
Leibovitz v. Univision Communications, Inc. et al., No. 1:19-cv-09093 (S.D.N.Y. filed October 01, 2019). Famed photographer Annie Leibovitz is suing Univision Communications for infringing her copyrights. She had photographed Caitlyn Jenner for a 2015 Vanity Shoot, and these photos have recently been used by Univision without permission for an online spread on Jenner’s transition. This lawsuit was brought after Leibovitz sent Univision a takedown notice and she is seeking $150,000 per infringement and an injunction against Univision from continuing to use her photos. Documents available here.
Trombetta v. Novocin, No. 18-CV-993 (RA), 2019 U.S. Dist. LEXIS 171228 (S.D.N.Y. Oct. 2, 2019) Annamarie Trombetta, an artist who exhibits her works in New York City, commenced an action against Norb Novocin, Marie Novocin and Estate Auctions, Inc., claiming under the Lanham Act, the Copyright Act, the Visual Artist Rights Act (VARA) as well as various state laws. She sought damages from the defendants for selling a painting online that they falsely attributed to her, which allegedly negatively impacted her own sales and caused her pain and suffering. The defendants moved to dismiss the claim, and their motion was granted in part and denied in part. Her claim, under the Lanham Act, for trademark infringement, was rejected, as Trombetta failed to demonstrate that her name was a valid trademark. Her copyright infringement claim, based on the defendants’ copying of her website biography, was also dismissed as she had failed to register her copyright at the Copyright Office. Her claim under VARA, however, succeeded, as the painting was in fact falsely attributed to her, violating her moral rights, while her claims under state law were also rejected. Judgment available upon request.
George Washington High School Alumni Association v. San Francisco Unified School District; San Francisco Unified School District Board of Education, No. CPF-19-516880 (CA Sup. Ct. filed October 04, 2019). The Alumni Association of George Washington High School has sued the San Francisco Unified School District and board over their vote to cover school murals depicting slavery and genocide of Native Americans. This vote was made in the wake of critiques and feedback from students of color, their families, and teachers. There had been efforts in the 1970s to cover the murals, following protests by the Black Panther Party and the school’s Black Student Union. In its complaint, the alumni association “urgently seeks a writ to enforce protections of state law”, based on the “value of the mural as a beautiful educational tool.” Complaint available here.
United States of America v. One Painting Entitled “Winter”, aka “Skaters” aka “Snow”, No. 1:19-cv-1271 (N.D.N.Y. filed October 15, 2019). In 1934, Jewish publisher and philanthropist Rudolf Mosse had his painting “Winter” by Gari Melchers stolen by the Nazis. Mosse had purchased “Winter” from the artist in 1900 at the Great Berlin Art Exhibition. After the theft, the painting made its way to the Bartlett Museum in Canajoharie, NY, where it was displayed until September 10 of this year. The FBI seized it on this date as property illegally and forcibly obtained by the Nazis. A complaint was filed to subject the painting to forfeiture under the National Stolen Property Act, as it entered the United States illegally. Complaint available here.
Gail Hollander et al. v. XL Capital Ltd., No. BC365455 (L.A. Cty. Sup. Ct. May 5, 2019). In 2007, art collectors Gail and Stanley Hollander filed a lawsuit against their insurance company, XL Specialty, for alleged losses in value of three Martin Kippenberg paintings – Copa III, Copa IV and Copa IX (1986). They claim these losses were the result of bad handling of the paintings, which caused damage to the cardboard frames of the triptych. They sought over $90 million in damages, and also tried to claim between $100,000 and $500,000 a year for emotional distress caused to Gail Hollander because of the case. On May 5, 2019, a jury voted 11 to one against the Hollanders’ bad faith claim. In October 2019, the LA County Court rejected the claim for damages, which meant the emotional distress claim was also rejected. Docket available here.
Meyer v. Seidel et al., No. 19STCV37731 (L.A. Cty. Sup. Ct. filed Oct. 15, 2019). Ron Meyer, Vice-Chairman of NBCUniversal, has filed a lawsuit against Susan Seidel and Jamie Frankfort for allegedly selling him a forgery. Meyer purchased what he thought was a Mark Rothko painting from them for $900,000, plus a $45,000 commission, in 2001. The painting, which has been displayed in his home since then, has now been deemed a “total forgery” with no value, according to Meyer’s attorney. His lawsuit, for fraud and breach of warranty, seeks $10 million. Complaint available here.
Federal Republic of Germany v. Philipp, No. 17-7064 (D.C. Cir. 2019). Several Jewish art dealers in Germany sought to recover a valuable art collection that was allegedly taken by the Nazis. The D.C. Circuit affirmed the District Court’s denial of Germany’s motion to dismiss, holding that Germany failed to prove that the instant case did not fall within the expropriation exception of the Foreign Sovereign Immunities Act (FSIA), which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue”. Here.
France | The Paris Court of Appeal rejected Poland’s request to extradite the Russian and American Gallerist Alexander Khochinsky, who was accused of possessing a Nazi-looted painting. This decision rejecting the European Arrest Warrant is rare, as the legal system of each European country ordinarily trusts its counterparts within the European Community. The French courts cited a 2018 judgment by the European Court of Justice that calls into question the independence of the Polish judicial authorities and the socio-political atmosphere in Poland, which would deny Khochinsky’s right to a fair trial. Here.
Germany | The Stiftung Preussischer Kulturbesitz (Prussian Cultural Heritage Foundation, “SPK”) will appeal to the U.S. Supreme Court to dismiss a lawsuit that seeks restitution of the Guelph Treasure, on the grounds that the U.S. courts lack jurisdiction. It has been alleged that the Guelph Treasure, a collection of medieval religious artworks, was confiscated as a result of Nazi persecution. The demands for its restitution began in 2008 and SPK has argued that the 1935 sale of the Guelph Treasure was not a forced sale. The German Advisory Commission on the Return of Cultural Property supported SPK’s argument by confirming that the sale was not forced. When a lawsuit was filed in the U.S. District Court for the District of Columbia in February 2015, SPK contended that the D.C. District Court lacked jurisdiction over the case. However, the District Court refused to dismiss the claims against SPK in 2017, and the D.C. Circuit court denied SPK’s appeal in 2018. SPK announced that it will petition the U.S. Supreme Court to reverse the lower court’s decision and dismiss the lawsuit. Here.
Germany | Prominent art dealer Michael Schultz was arrested after allegedly selling a counterfeit painting. Schultz was trying to sell an work he had previously owned to an unidentified auction house. After the artwork was purchased from the auction house, the artist was contacted and confirmed that the painting was inauthentic. Authorities also reported that Schultz had failed to deliver other works after payment. Here.
India | A Delhi high court held that Facebook and Google should remove posts about allegations of sexual harassment involving Subodh Gupta. The influential Indian artist was accused of sexual harassment in December 2018 and January 2019. Gupta has contended that the allegations are “entirely false and fabricated.” The court ruled that the “defamatory” content on the Facebook, Google, and Instagram account “cannot be permitted to be made in public domain” and banned @Herdsceneand, the account that has actively posted about Gupta’s sexual harassment allegations, from posting any #MeToo content regarding Gupta. Here.
Italy | An Italian court has suspended the loan of Leonardo’ Da Vinci’s Vitruvian Man from the Gallerie dell’Accademia in Venice to the Musee du Louvre in France. After the loan was agreed to by Italy and France on September 24, the heritage group Italia Nostra challenged the loan at the Tribunale Amministrativo Regionale (“TAR”), the administrative court of the Veneto region. The main argument of Italia Nostra was that the loan would violate an Italian law controlling the loan of works that are “susceptible to damage in transport or when on display in unfavorable environmental conditions.” The TAR accepted Italia Nostra’s argument, and the loan agreement between Italy and France regarding seven works by Da Vinci was temporarily annulled. Here. UPDATE (Oct. 16, 2019): an Italian court reversed the suspension, noting the importance of international and cultural relations between Italy and the world. Here.
Netherlands | On July 16, 2019, the Court of Appeal of Amsterdam gave an interlocutory judgment in a case regarding the “Crimean artefacts.” The Crimean artifacts are the objects that the Crimean Museums had provided on loan to the Allard Pierson Museum (“the APM”) in Amsterdam in 2014. After the APM’s exhibition, Crimea came under Russian control and the APM was subsequently asked by both the Crimean Museums and the Ukrainian State to return the objects. By the first judgment in 2016, the Amsterdam District Court assigned the objects to the Ukrainian State, but the case has been prolonged by continuing disputes. The Court has considered the preamble to the UNESCO Convention and made it clear that the APM is lawfully holding onto the objects on the grounds of its right of suspension. Now, the Court is left to examine the merits of which party is entitled to the objects. The Court has asked the parties to submit further information. Here.
UK | UK’s Ivory Act, which bans the ivory trade, was contested by the Friends of Antique and Cultural Treasures Limited (“FACT”). Although the representative group of dealers and collectors supports eradicating illegal ivory trade, FACT has challenged the breadth and strength of the Act. FACT argued that EU law fully covers the antique ivory trade and does not allow UK’s more stringent control over the ivory sales. FACT also pointed out that the impact of the measures, such as economic loss or a level of destruction of cultural property, has not been sufficiently considered. The dealers and collectors ultimately seek that antique ivory be included in the list of exemptions to the ban, lessening the restrictions on their trade. Here.
UK | The High Court in the UK recently dissolved two companies involved in a £1 million art fraud. Warrington-based Gem Tobin Ltd. and York-based Dionysus Design Services Ltd. took £700,000 and £200,000, respectively, from investors. The companies were supposed to invest those funds in works by prominent artists, including Pablo Picasso and Salvador Dali. However, investigators at the Insolvency Service reported that no evidence indicated that the two companies had made any such investments. Before the High Court in Manchester, the investigators submitted evidence that the two companies “traded with a lack of commercial probity” and received “monies wrongly obtained from members of the public.” On October 7, the High Court suspended all of the companies’ activities. Here.
UK |The Court of Appeal held that a seller paying a fee to an acquisition agent, without the buyer’s knowledge, does not make the contract for sale void or voidable. Appellant Prince Eze was a buyer who failed to complete the purchase of a house from the sellers, the Conways. Obahor, an acquisition agent, assisted Prince Eze in the transaction in 2015. Obahor told the Conways that he represented an individual who was interested in acquiring their property. Obahor and the Conways agreed on a sale price of £500,000 and a 1.5% “finder’s fee” for Obahor’s. The transaction stalled, however, and was never completed by Prince Eze. When the Conways filed a lawsuit against Prince Eze for breach of contract, Prince Eze argued that Obahor’s finder’s fee constituted a secret commission, vitiating Obahor’s authority to act on his behalf and making the contract voidable. The Court unanimously dismissed Prince Eze’s appeal, holding that the law relating to secret commissions was not relevant in this case because the relationship between Obahor and Prince Eze was not a fiduciary relationship of trust and confidence. Here.
From the October 2019 Newsletter
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.
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.