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

United States

United States v. Philbrick, No. 1:20-MJ-04507 (S.D.N.Y. filed Apr. 30, 2020). On April 30, 2020, a complaint was filed in the Southern District of New York charging Inigo Philbrick, an art dealer specializing in post-war and contemporary fine art, with galleries in London, United Kingdom, and Miami, Florida, with engaging in a multi-year scheme to defraud various individuals and entities in order to finance his art business. In total, Philbrick allegedly fraudulently obtained more than $20 million as a result of the scheme. Philbrick, a fugitive since October 2019, was charged with one count of wire fraud, which carries a maximum prison term of 20 years, and one count of aggravated identity theft, which carries a mandatory prison sentence of two years. Philbrick appeared in federal court in Guam on June 15, 2020, and he is currently detained pending his removal to the Southern District of New York. A date for this appearance in Manhattan is yet to be set.

The Estate of Ana Mendieta Collection, LLC v. Sotheby’s, Inc. et al., No. 1:20-cv-01841 (S.D.N.Y. May 29, 2020). The Estate of Ana Mendieta brought an action for replevin and conversion against Edward Meringolo and Sotheby’s, Inc. Meringolo consigned a photograph by Ana Mendieta, titled Guanaroca (Esculturas Rupestres [First Woman Rupestrian Sculptures]), to Sotheby’s. The Estate demanded that the artwork be returned, but both Defendants refused, notwithstanding that no documentary evidence was presented to Sotheby’s that Meringolo was a good faith purchaser or that Mendieta had gifted or sold the artwork. The court entered judgment in favor of the Estate on the claim of replevin and closed the case. Sotheby’s was directed to return the artwork to the Estate.

Crowe v. Akron Art Museum, No. cv-2020-05-1605 (Ohio Ct. Com. Pl. filed May 29, 2020). Amanda Crowe, a former employee of the Akron Art Museum (“AAM[TB1] ”), filed suit against AAM and its former Executive Director Mark Masuoka. Two incidents occurred in early June 2019 in which Masuoka publicly accused Crowe of mismanaging an event and of exposing event participants to a potential health risk. In late June 2019, Crowe and a group of employees sent a letter to AAM’s Board of Trustees stating numerous claims of mismanagement, hostile work environment, harassment, and slander on the part of Masuoka. AAM’s legal counsel investigated, but AAM did not take action against Masuoka. In March 2020, Crowe was “laid off,” supposedly due to COVID-19. But, AAM then posted an opening for her position. In May 2020, Masuoka resigned from his position. Crowe then filed suit, alleging that she had undergone libel, slander, and defamation, as well as unlawful workplace retaliation and fraud.

McGucken v. Newsweek, LLC et al., No. 1:19-cv-09617 (S.D.N.Y. filed June 1, 2020). In mid-March of 2019, photographer Elliot McGucken posted his copyrighted photograph of an ephemeral lake that appeared in Death Valley, California to his public Instagram account. The next day, Newsweek published “Huge Lake Appears in Death Valley, One of the Hottest, Driest Places on Earth” to its website, embedding McGucken’s photograph. McGucken brought suit alleging that Newsweek infringed his copyright. On June 1, 2020, the Southern District of New York partially granted and partially denied Newsweek’s motion to dismiss. The court granted Newsweek’s motion to dismiss McGucken’s claims for contributory and vicarious infringement; however, the court denied Newsweek’s motion to dismiss McGucken’s claim of direct copyright infringement and McGucken’s request for enhanced damages.

Alverson v. Akron Art Museum, No. cv-2020-06-1676 (Ohio Ct. Com. Pl. filed June 8, 2020). Jenelle Alverson, a former employee of the Akron Art Museum (“AAM”), filed suit against AAM and its former Executive Director Mark Masuoka. Alverson alleged that Masuoka did not exercise reasonable care to correct and further prevent sexual harassment, gender discrimination, and retaliation that she experienced at AAM. In her complaint against AAM and Masuoka, Alverson asserted four causes of action: (1) gender discrimination, (2) hostile work environment, (3) retaliation, and (4) constructive discharge.

Gregory v. Governor of Virginia, No. CL20002441-00 (Va. Cir. Ct. filed June 8, 2020). A judge in Virginia issued an injunction halting the removal of a statue of confederate general Robert E. Lee in response to a pending lawsuit, which alleges that the statue cannot be removed due to a deed provision from 1830. The descendent of the original signatories to the deed is filing the suit, arguing that the state agreed to take care of the statue when the land it is positioned on was annexed by Virginia. This is the most recent debate concerning confederate statues and public art reminiscent of slavery and has forced many judges to recuse themselves, which has further delayed the statue’s removal.

Barnet et al. v. Ministry of Culture and Sports of the Hellenic Republic, No. 19-2171 (2d Cir. 2020). On June 9, 2020, the United States Court of Appeals for the Second Circuit ruled that the Foreign Sovereign Immunities Act (“FSIA”) does not provide jurisdiction over cases involving a sovereign’s protection of its cultural heritage. The Second Circuit ruled that Greece’s enactment and enforcement of patrimony laws are archetypal sovereign activities and, therefore, do not provide the requisite connection to commercial activity that would authorize suit under FSIA. The court reasoned, “nationalizing property is a distinctly sovereign act.” The Second Circuit held that private parties, on the other hand, cannot nationalize historical artifacts and regulate their export and ownership. As a result, the Second Circuit ruled in favor of the Ministry of Culture and Sports of the Hellenic Republic. Amineddoleh & Associates, LLC, representing the Ministry, said that the Second Circuit’s holding will “support foreign sovereigns and agencies in tracking down and preventing the sale of looted antiquities and cultural heritage items in the U.S.”

Restellini v. The Wildenstein Plattner Institute, Inc., No. 1:20-cv-04388 (S.D.N.Y. filed June 9, 2020). Marc Restellini, one of the most prominent Amedeo Modigliani experts, has been working on a catalogue raisonné of Modigliani’s work for the past several decades. He began his research in 1997, with the support of the Wildenstein Institute. In November 2016, art dealer Guy Wildenstein joined forces with art collector and technology entrepreneur Hasso Plattner to launch the Wildenstein Plattner Institute. As part of the merger, Wildenstein gifted Restellini’s papers to the new Wildenstein Plattner Institute. But, according to Restellini, the original Wildenstein Institute never obtained permission to transfer his materials, nor did the original Wildenstein Institute acquire rights to his materials. Restellini is now suing the Wildenstein Plattner Institute, claiming that it is unlawfully holding his original research and archival materials and that it intends to make the information public. Restellini alleges that the Institute violated his copyright and misappropriated his trade secrets. Restellini requests that the court order the Institute to refrain from publishing his research and destroy all digital copies.

United States v. Winbourn, No. 1:2019-cr-00510 (D. Col. June 12, 2020). Lonnie Shadrick Winbourn, 57, was sentenced to 12 months and one day imprisonment for violating the Archaeological Resources Protection Act. Winbourn stole 64 artifacts from the archeological Canyons of the Ancients National Monument in Colorado. Police officers found shards in his pocket when he was arrested on an unrelated warrant in 2017.

Athena Art Finance Corp. v. that Certain Artwork By Jean-Michel Basquiat Entitled Humidity, 1982, In Rem, No. 1:20-cv-04669 (S.D.N.Y. filed June 18, 2020). Athena Art Finance Corp. is a specialty lender that provides loans secured by high-value fine art. Athena made a loan to a borrower that was collateralized by Humidity (1982) by Jean-Michel Basquiat. The loan is now in default. As a result, Athena brings this complaint to sell the Basquiat in order to satisfy a judgment of $14,306,800.47, entered in its favor by the Supreme Court of the State of New York. The judgment and the explicit terms of the relevant loan and security agreement (“LSA”) between Athena and 18 Boxwood Green Limited, an entity owned by Inigo Philbrick, allow Athena to sell the Basquiat. Athena now seeks a declaration that it may sell the Basquiat without regard to outstanding claims from third parties purporting to hold some financial interest in the painting. On June 18, 2020, the case was removed from the Supreme Court of the State of New York to the Southern District of New York.

Taylor v. Governor of Virginia, No. CL20002624-00 (Va. Cir. Ct. filed June 17, 2020). In a case connected to the Robert E. Lee statue in Richmond, Virginia, six local residents of Monument Avenue seek to block the removal. The residents claim that Governor Ralph Northam does not have the authority to remove the statue. In addition, they argue that the removal would alter the avenue’s current designation as a National Historic Landmark, thereby reducing their properties’ value and favorable tax treatment.

V&A Collection, LLC v. Guzzini Properties Ltd., No. 1:20-cv-01797 (S.D.N.Y. filed Feb. 28, 2020). In June 2013, V&A Collection purchased a 50% interest in an artwork by post-conceptual American artist Wade Guyton. Since then, the Collection never sold, transferred, or otherwise disposed of its ownership interest. In October 2019, the Collection learned that Guzzini claimed to have purchased the artwork in a June 28, 2017 agreement with Inigo Philbrick Limited, owned by now-disgraced art dealer, Inigo Philbrick. The Collection notified Guzzini of its ownership interest, and Guzzini claimed to still own and have physical possession, custody, and control of the artwork. But, Guzzini recently revealed that its representations were untrue and that, in November 2019, Guzzini transferred title to a third party, who will not be disclosed. The Collection has brought suit to assert conversion claims against Guzzini for interfering with its ownership interest. On June 19, 2020, the Collection requested that the Southern District of New York direct the Clerk of Court to issue a summons to Guzzini, in order to allow the Collection to effectuate service through the Hague Convention and moot any service-related issues in connection with Defendant’s forthcoming dismissal motion. The same day, the court granted the Collection’s motion.

Howard University v. Borders et al., No. 1:20-cv-04716 (S.D.N.Y. filed June 19, 2020). Howard University is suing for the return of a drawing by African American artist Charles White, which vanished from Howard in the 1970s and was recently found at Sotheby’s. Larry and Virginia Borders consigned Centralia Madonna to Sotheby’s earlier this year, but the auction house determined that the drawing’s last documented owner was Howard. Sotheby’s contacted Howard, and it responded that it was the rightful owner of the drawing and demanded its immediate return. Howard filed suit in the Southern District of  New York two days later. The Borders now claim that they received the drawing as a gift from a close family friend, J.D. Kibler. According to the complaint, the Borders have no documentation of how Kibler acquired the work and cannot recall what J.D. stood for or his occupation. On June 22, 2020, the Borders filed a counterclaim, asserting that Howard unduly damaged their reputation and damaged the work’s prospects at auction with “false allegations.” The Borders are seeking a minimum of $100,000 in damages.

McGriff et al. v. City of Miami Beach et al., No. 1:20-cv-22583 (S.D. Fla. filed June 23, 2020). The American Civil Liberties Union (“ACLU”) of Florida is suing Miami Beach officials on behalf of artist Rodney Jackson and curators Octavia Yearwood and Jared McGriff. The suit stems from the removal of a painting memorializing Raymond Herisse, a Haitian-American who was fatally shot by Miami Beach police in 2011. The painting was exhibited in Reframe Miami Beach, a series of art installations commissioned by Miami to represent race and racial justice. The curators claim the painting was removed soon after it was installed at the order of the Miami Beach city manager, Jimmy Morales. Morales supposedly threatened to close the entire exhibition if the painting was not removed. The curators ultimately allege that Morales and Miami Beach mayor, Dan Gelber, violated their First Amendment rights, as well as the artist’s, through censorship of the painting.

Lipsky v. Spanierman Gallery, LLC et al., No. 154805/2020 (N.Y. Sup. Ct. filed on June 29, 2020). Visual artist Pat Lipsky brought an action under the New York Artist’s Authorship Rights Act (“AARA”), N.Y. Arts & Cult. Aff. Law § 14.03, “to stop the damage being done to her reputation by Defendants’ efforts to sell one of her major works.” In a reproduction of her a painting entitled Bright Music II (1969), the Plaintiff argues that the digitized image indicates that the work has become “damaged and soiled over time, likely due to moisture, mold, or mishandling” and that it “dulls the Work’s deep, vibrant colors, rendering it lifeless and entirely atypical of Lipsky’s oeuvre from this period.” Complaint available upon request.

Federal Republic of Germany, et al. v. Alan Philipp, et al., No. 17-7064 (D.C. Cir. 2018), cert. granted, No. 19-351 (U.S. July 2, 2020). On July 2, 2020, the Supreme Court agreed to hear Germany’s appeal in the case about the so-called Guelph Treasure. The collection, worth about $224.45 million, was sold to a group of Jewish art dealers in Germany in 1929. The heirs of the art dealers argued that, in 1935, the dealers were forced to sell the collection to the Nazi-controlled Prussian government in a “genocidal taking” by Hermann Goering, who presented it as a gift to Hitler. In a document filed in late May of 2020, U.S. Solicitor General Noel Francisco argued that the heirs failed to make a case, in accordance with the 1976 Foreign Sovereign Immunities Act (“FSIA”), that the collection was confiscated “in violation of international law,” since it was confiscated domestically. The Supreme Court will rule on two issues: (1) whether suits concerning property taken as part of the Holocaust are within the expropriation exception to the Foreign Sovereign Immunities Act and (2) whether a foreign state may assert what is known as a comity defense that is outside the FSIA’s “comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state.”


Indonesia | On June 4, 2020, the Estate of Chris Burden filed suit against the Indonesian attraction Rabbit Town and its owner, Henry Husada, in the Central Jakarta District Court. The estate alleged that Rabbit Town infringed upon Urban Light (2008), Burden’s permanent public art installation at the entrance to the Los Angeles County Museum of Art. Rabbit Town, opened in 2018 to channel the nation’s growing interest in “selfie tourism,” features Love Light, a lookalike of Burden’s Urban Light. The Indonesian installation is unlawful in the Estate’s eyes because Rabbit Town has charged admission and profited from the lookalike. The Estate reached out to Rabbit Town to resolve the issue, but Rabbit Town was unresponsive to the proposal of a post-facto license. The Estate then pursued legal action, retaining an Indonesian law firm to file the suit.

UK | UK art organizations, ranging from galleries to museums to sole traders, are preparing to file a class-action lawsuit against insurers who refuse to pay out claims. Insurers argue that the coronavirus pandemic is not considered a viable business interruption (“BI”), yet Rudy Capildeo of Charles Russell Speechlys, who is handling the case, claims that policies covering infectious disease were activated once COVID-19 was declared a notifiable disease on March 5, 2020. With a projected loss of 79% of their average annual income, many UK art organizations are relying on an insurance payout to survive. Despite the frequency of BI claims, many art dealers are not technically covered for losses incurred as a result of communicable diseases.

UK | London Police have issued an arrest warrant for art heiress Angela Gulbenkian after she missed her court date. She married the great-grandnephew of famed art collector and patron Calouste Gulbenkian. Gulbenkian stands accused of theft after having allegedly arranged fraudulent art deals, stealing $1.4 million from a Hong Kong-based art advisor.

France | The French High Court ruled that painting Pea Harvest, by Camille Pissarro, must be returned to the heirs of the Parisian collector Simon Bauer, from whom the painting was seized in 1943 under anti-semitic laws. The current owner, American collector Bruce Toll, plans to sue France in the European Court, arguing that the High Court’s judgment violates his ownership and defense rights. Toll claims he bought the work in “good faith” in 1995 at Christie’s, but the French Court upheld the terms of a 1945 order “annulling all acts of plunder that occurred under the German occupation.” According to Ron Soffer, Toll’s lawyer, France’s wrongdoings are central to the dispute, as the Bauer collection was looted in 1943 by the French Commission of Jewish Affairs, which was working alongside the Nazis.

France | Paris Police arrested five art experts in connection with ongoing investigations into trafficked and looted antiquities from the Near and the Middle East. The accused include a former Musée du Louvre curator and an employee of the Pierre Bergé & Associés auction house. Antiques worth tens of millions of euros were allegedly taken from countries including Libya, Syria, Egypt and Yemen, often through the renowned Pierre Berge auction house based in Paris. The arrests follow a 2018 investigation by French anti-trafficking and fraud agents into the illegal antiquities network between art dealers, antique experts and museum curators.