Your Browser Does Not Support JavaScript. Please Update Your Browser and reload page. Have a nice day! From the August 2020 Newsletter – Center for Art Law

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 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.