Your Browser Does Not Support JavaScript. Please Update Your Browser and reload page. Have a nice day! From the August 2021 Newsletter – Center for Art Law

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.