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

United States

teamLab Inc v. Museum of Dream Space et al.No. 2:19-cv-6906 (C.D. Cal. filed Aug. 8 2019). teamLab, an interdisciplinary art collective headquartered in Tokyo, Japan, is suing the Museum of Dream Space, a Los-Angeles based museum that also displays interactive artworks, for copyright infringement of two distinct exhibitions. The exhibitions titled “Universe of Water Particles, Transcending Boundaries,” displayed at the Pace Gallery in London, and “Crystal Universe,” displayed at Pola Museum in Japan, were alleged to be known by the defendants and copied by them. teamLab alleges multiple instances of copyright infringement, including still photos of their exhibit, and descriptions of the exhibits from their website. The parties are reported to have reached a settlement over the summer.

Munro et al. v. Fairchild Tropical Botanic Garden, Inc. et al.No. 20-cv-20079 (S.D. Fla. filed Jan. 8, 2020). In the Beginning of the year, U.K. artist Bruce Munro, known for his light-based installation work, filed a lawsuit against Fairchild Tropical Botanic Garden in Coral Gables, FL, alleging that the garden had imported, installed, and publicly displayed “indistinguishable copies” of Munro’s original installation work for an event called NightGardem. Fairchild filed a motion to dismiss, claiming that the artwork is not protected as “pictorial, graphic, and sculptural works but are merely useful articles.” On July 13, 2020, the U.S. District Court for the Southern District of Florida denied the motion to dismiss, stating the court is not obligated to determine “what is art,” and the works are protected under the Copyright Act as sculptures. Munro then amended his complaint, adding more claims of copyright infringement and mismanagement, and adding other defendants and his studio as a plaintiff. On August 5, the defendants filed an answer with defenses, which the plaintiff moved to strike. The case is still pending.

LMNOPI v. XYZ Films, LLCNo. 18-cv-5610 (E.D.N.Y. Mar. 30, 2020). An activist artist, who goes by the name of LMNOPI, and the subject of her art, Ta’Kaiya Blaney, sued XYZ Films for the reproduction of a mural done on a building in Bushwick, Brooklyn, in one of their films, an action thriller entitled “Bushwick.” The mural appears for 3.5 seconds in the opening scenes of the movie, but clearly shows the art and its subject, Blaney. Both defendants sued for copyright infringement and false endorsement of the movie, and Blaney sued for misappropriation of her right of publicity. On March 20, 2020, the court dismissed all the claims, saying that the use of the mural was de minimis, as it was only for 3.5 seconds in a 93 minute film, and transformative, therefore falling under the fair use doctrine. There was also no false endorsement as the court concluded that there was not a plausible claim that viewers would be misled into believing that the plaintiff had endorsed the movie.

Fay v. Princeton University Art Museum, No. 1:20-cv-01496 (S.D.N.Y. settled Ap. 2, 2020). Mr. Vincent Fay is a collector of fine art, and has been for over 50 years. Many works that he owns have been exhibited all over the world. In 2018, Mr. Fay signed a contract with the Princeton University Art Museum to sell 17 works for $945,000, to be paid in two installments. Before the Museum paid the second installment in December 2018, the contract was rescinded, due to questions about the authenticity of the works. While the Museum requested the return of the first installment, the plaintiff sued to enforce the contract, which included a statement about the authenticity of the works to the best of the seller’s knowledge, but did not include the right to rescind if a question arose as to the works’ authenticity. The suit was voluntarily dismissed with prejudice in April 2020.

Gerald Peters Gallery Inc., v. Peter Stremmell, No. 18-16677 (9th Cir. 2020). This action is an appeal from a judgment entered against Gerald Peters Gallery Inc. in a defamation/business disparagement action brought against Peter Stremmel et al. (“Stremmel”). This case involved the sale, by the gallery, of a painting titled “The Rain and the Sun,” which was purchased by R. D. Hubbard several years ago for $750,000. When a question arose as to the painting’s authenticity, one of Hubbard’s associates sent images of the painting to Stremmel, who responded via several emails that he was absolutely certain the painting was a fake. Hubbard and his associates had not told Stremmel of the gallery’s involvement in the sale of the painting at the time of the initial comments. The lower court decided that the emails did not contain “a false and defamatory statement concerning the plaintiff.”  The 9th Circuit Court of Appeals found that the district court only considered the first element of a defamation claim and erred in determining that it would not have been “reasonable for Mr. Hubbard or his associates to understand Stremmel as intending to refer to the gallery.” Because Nevada law did not require Stremmel to know the precise identity of the seller, whether his emails reasonably implicated the gallery was a question of fact for the jury and it was an error for the district court to decide this issue as a question of law. The court reversed and remanded the decision for further proceedings.

Holtzman v. Kuntsmuseen Krefeld, No. 1:20-cv-02976 (D.C. Cir. filed Oct. 15, 2020). The heirs of Piet Mondrian’s estate filed a lawsuit on October 15, 2020 against German Museum collective Kunstmuseen Krefeld, for the return of four of his paintings and damages for four other paintings that likely were exchanged for—or sold to fund the purchase of—other acquisitions. The case is brought by children of American abstract artist, Harry Holtzman who helped Mondrian flee the Nazi regime in the 1940s and who became the executor of the Mondrian estate. The Kaiser Wilhelm Museum (KWM), part of the German Collective, acquired the eight paintings in 1929 for a proposed exhibition, but the show was never exhibited and the paintings remained Mondrian’s property as he never transferred title to KWM. In 1933, the Nazi regime took over the museum and deemed Mondrian’s work “degenerate.” Although the works were never seized because they were not in the museums official inventory, Mondrian was unable to get those works back. He fled to London and then New York, where he died assuming the works were lost. In 1947, Paul Wember became director of KWM and, in 1950, discovered the works “under mysterious circumstances.” The complaint alleges Wember knew they were Mondrian’s property, but never tried to contact the heirs or return the paintings. In 2011, the heirs learned of the works at KWM and retained counsel to communicate with defendant, but Krefeld provided no information or details as to how KWM acquired the works. The estate’s trust hired provenance expert Monika Tatzkow and German Lawyer Gunnar Schnabel to investigate. In 2017, they concluded that the defendant never lawfully acquired ownership of the paintings. The trust sent this report to the defendant, who refused to return the works, leading to the present action. The plaintiff alleges the claims are timely because of the Holocaust Expropriated Art Recovery Act, which allows recovery of art that was in Nazi position by “degenerate” artists to be recovered within six years of the plaintiff becoming aware of its interest in the paintings.

U.S. v. Two One-Thousand-Five-Hundred-Pound, Hand-Carved Lintels Removed from Religious Temples in Thailand, No. 4:20-cv-07537 (N.D. Cal. filed Oct. 27, 2020). The United States District Attorney in California filed a civil lawsuit demanding forfeiture of two ancient Thai artifacts by the San Francisco Asian Art Museum. The museum had already been working to repatriate the two works, after members of the Thai consulate saw them on display in LA in 2016. This past September, after a three-year internal study, the museum issued a press release stating that the lintels were not removed contrary to Thai laws but, since they could not find any export documents, they would begin the process of deaccessioning the two works. In the complaint, however, the US attorney includes evidence and communications about the stolen objects and alleges that the cultural patrimony laws of Thailand have also been violated. The US attorney filed this complaint because the City and County of San Francisco have not agreed to a court-sanctioned process; thus he believes this is the best way to ensure that the Thai government gets their pieces back.


France | Holocaust survivor, Léone Meyer, is returning to court to challenge the terms of a 2016 agreement concerning her family’s Pissarro’s “La Bergère Rentrant des Moutons’” (1886), to prevent its scheduled return to Oklahoma after unsuccessful attempts to place the work in a French art institution.

Japan | In 2015, Osaka tattooist Taiki Masuda was arrested for allegedly violating the Medical Practitioners’ Act by tattooing people without a doctor’s license. Masuda was fined for the infraction but the ruling was overturned in 2018. The Prosecution appealed the action to the Supreme Court, who upheld the reversal, as tattooing carries little risk of injury or health problems. There has been an aversion to tattoos in Japanese culture for centuries, but the country may be changing its tune.