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

United States

Alexander v. Take-Two Interactive Software, Inc., No. 18-cv-966 (S.D. Ill. March 18, 2020). In this copyright infringement lawsuit stemming from the reproduction of Alexander’s tattoo art on a WWE wrestler’s figure, Randy Orten, in a video game produced by Take-Two, the Southern District of Illinois granted a partial motion for summary judgment for the Plaintiff more than two years after litigation started. This creates a Circuit split in light of the ruling that came down this summer in the Southern District of New York, which found the De Minimis defense was favorable to the defendant, that the tattoo was indistinct on screen, had minimal screen time, and the cameras quick movements during playtime were unlikely to show the tattoo. The New York court had also found that tattoo artists give an implied license to clients to reproduce the work. However, the Seventh Circuit found both the fair use doctrine and the De Minimis defense to be not inapplicable and asserted that tattoo artists do not give an implied license to reproduce the tattoo.

Dicker v. Mosionzhnik Fine Art, LLCNo. 652631/2020 (N.Y. Sup. Ct. filed June 22, 2020). In this action for breach of contract brought by art dealer Susan Dicker, the Plaintiff is seeking recovery of the entire purchase price plus interest accrued, based on the failure of Defendant to pay $3,000,000 for a Picasso that Defendant sold and delivered in February 2019. Susan Dicker had contracted with MFA LLC to assist her in the sale of her Picasso, to act as her agent in finding a buyer, and to keep the original seller anonymous. The allegations are based on an invoice with the terms of sale, which mandated remitting 100% of the proceeds to Plaintiff, and the fact that the Defendant has admitted to purchasing a different piece of art with the proceeds—instead of immediately remitting Ms. Dicker the price paid in full by the purchaser.

Maran v. Metropolitan Museum of ArtNo. 19-CV-8606, 2020 U.S. Dist. LEXIS 122515 (S.D.N.Y July 13, 2020). Plaintiff Lawrence Marano, a professional photographer, is suing The Metropolitan Museum of Art for willful copyright infringement for use of a photograph that he took of Eddie Van Halen playing his famous “Frankenstein” guitar at a concert. The Met used the photograph in an online catalogue for a physical exhibition on rock and roll instruments, displaying the “Frankenstein” photograph along with a separate photograph of the guitar, two thumbnail images, and two paragraphs of text describing the guitar’s history. After the initial filing of the case in September 2019 based on copyright infringement, the court found that this action fell under the fair use doctrine and dismissed Marano’s complaint on July 13, 2020. The Court focused on the fact that the use of the photograph by the Met was in a scholarly context, to display the guitar, in contrast to the creative and different market that Marano took the photograph for. The Court also concluded that the photograph was inconsequential in value to the Met because it was on a page with other photographs that highlighted the guitar specifically.

Union District Council 37 v. American Museum of Natural History, No. 02-CA-265257 (N.L.R.B.) (August 25, 2020). The Union District Council 37 (as employees) is suing their employer, the American Museum of Natural History, before the National Labor Relations Board for claims under The National Labor Relations Act. These claims include: 1) refusal to bargain or bad faith bargaining (including surface bargaining or direct dealing), and 2) the refusal to furnish information. Employees claim that ProtectWell, the app that the Museum is using for the health screening policies for re-opening, is invasive, and does not comply with HIPAA regulations. The employees fear for their data privacy and argue that the American Museum of Natural History did not give alternatives for those without smartphone capabilities to download the app.

Sprecher v. Watson, No. 4:20-cv-03196 (S.D. Tex. Sept. 14, 2020). In September, Aaron Sprecher, a professional freelance photographer, brought a copyright infringement lawsuit against NFL player DeShaun Watson, arising out of the latter’s unauthorized reproduction of the photographer’s images on his Instagram account. As a professional photographer, Sprecher argues that he relies on the royalties of licensing sports photography to sustain his practice and alleges that Defendant published three of his images without purchasing a license. The photographs continue to remain on Watson’s Instagram account and have garnered substantial likes, which the Plaintiff argues would entitle him to significant damages and an injunction against defendant from copying, displaying, distributing, advertising, promoting, and/or exploiting in any manner the photographs, and surrendering any files in defendant’s possession.

Global Art Exhibitions, Inc. v. Kuhn & Bulow Italia Insurance Broker GmbH et al, No. 1:20-cv-01395-AJN (S.D.N.Y filed Feb. 18, 2020). This case involves claims sounding in breach of contract to recover proceeds under an insurance policy issued by defendant insurance company and broker. Twenty-one works were seized from the Plaintiff’s exhibition at Palazzo Ducale in Italy, including twelve works arranged through Global. The Modigliani works were seized by Italian authorities under a claim of forgery. Although the underlying claim of forgery has not been resolved, despite Plaintiff Global’s repeated demands for their return, the seized works of art remain in the possession of the Italian authorities. In addition, Defendants have refused to pay the costs incurred to regain possession of the seized paintings, as they claim the insurance policy is not triggered until the investigation of the paintings is complete. Defendant filed a motion to dismiss on September 14, 2020, stating that: the claim is not yet ripe for litigation because the Plaintiff is only due payment if the paintings are not deemed forgeries; there is a lack of jurisdiction because the Insurance Policy was crafted in Germany and under German law; and that two of the Defendants never even participated in crafting the insurance policy that covered the paintings in New York. The forgery investigation in Italy is still underway.

East Coast Power & Gas, LLC v. The Museum of Modern Art, No. 654636/2020 (N.Y. Sup. Ct. filed Sept. 23, 2020). The East Coast Power and Gas Company is suing the Museum of Modern Art in New York for breach of contract for electric services. East Coast Power is alleging that the MoMA has failed to pay its remaining balance of $210,349.26 after East Coast Power had lawfully terminated their contract on May 13, 2020.

U.S. v. Dere, No. 1:2020cr00501 (S.D.N.Y. filed on Sept. 15, 2020). On September 22, Federal Law Enforcement agents arrested Defendant Erdal Dere at his residence in New York City and arrested Defendant Faisal Kahn at his residence in New Jersey. The Defendants have been charged with one count of conspiracy to commit wire fraud, one count of wire fraud, and one count of identity theft. Through Fortuna Fine Arts Ltd, the Defendants engaged in a years-long fraud scheme of false provenances for the offer and sales of numerous antiquities (spanning from 2015 to 2020). Khan solicited buyers and put them in contact with Dere, who fabricated the provenance with forged documents that falsely labeled the previous owners of the antiquities as various deceased collectors. In addition, the United States demands that the Defendants forfeit any US funds earned from the sale of these antiquities under false provenances, as well as objects still in their possession.

Marlborough Gallery, Inc v. Levai, No. 654459/2020 (N.Y. Sup. Ct. filed Sept. 15, 2020). Pierre Levai and his son Max Levai are being sued for numerous claims stemming from years of mismanaging the Marlborough Gallery, including misappropriation of the gallery funds and Marlborough property for personal uses (such as receiving loans, pays tabs at nightclubs and restaurants, and transferring 23 works to the possession of Pierre’s close friend). Pierre was the President of the gallery until the summer of 2019, at which point he promoted his son to the role of President. Pierre still serves on the Gallery’s board and allegedly participated in Max’s termination on June 24, 2020. The Marlborough Gallery alleges that it has sustained losses of up to $18.7 million between 2013 and 2019—$14.5 million of which is attributable to aspects of the Gallery which were under Max Levai’s primary control and responsibility. The complaint alleges that, during the board’s efforts to wind down the operations of the Gallery, Max refused to comply with the board’s repeated requests for his help and information. Additionally, the board received information that Max and the co-Defendants took resources and contacted artists from the Gallery to form their own gallery in the Hamptons (“Alone Gallery”). The Plaintiff also alleges that Max held himself out to be an employee of the Marlborough Gallery, even after his termination, and made broad claims to the press that the Gallery was shutting down, in order to induce artists to leave Marlborough and follow him to his new Alone Gallery. Max filed a suit against the Gallery on the same day this suit was filed.

Levai v. Marlborough Gallery, Inc., No. 654436/2020 (N.Y. Sup. Ct. filed Sept. 15, 2020). Filed simultaneously to Marlborough Gallery, Inc v. Levai, No. 654459/2020, Max Levai, former employee of Marlborough Gallery, brings this action for defamation, to regain control over his personal property, and to recover the reputational and economic damages he has suffered — including punitive damages based on the Defendants’ alleged willful and malicious conduct. Max Levai argues in his complaint that the Defendants had “duped” him into believing they were closing the Gallery when, in actuality, they were preparing to terminate him. Levai also claims that two board members sent a June 23, 2020 letter with false claims to prominent figures in the art world, in order to destroy his reputation. The Plaintiff also alleges the Gallery tortiously interfered with his ability to operate a competing business, his “Alone Gallery” in the Hamptons, by inhibiting his ability to contact artists. Lastly, the Plaintiff alleges the Gallery has wrongful possession of 25 works from his personal collection stored in its warehouses and that the Gallery hacked his personal Instagram account for its own use.

G&M Realty L.P., et al., v. Maria Castillo, et al., 950 F.3d 155 (2d Cir. 2020), cert. denied, No. 20-66. On October 5, 2020, as the U.S. Supreme Court’s term resumed, the Justices refused to grant certiorari to the owner of the Long Island City industrial complex and “Graffiti Mecca” which had come to be known as “5Pointz.” Read about the Second Circuit decision confirming the award of $6.75 million in damages to the artists and the petition is available here.


Brazil | The Museum of Contemporary Art at the University of Sao Paulo (“MAC”) is seeking payment of  $3.6 million for the preservation of works leftover from the collection of the bankrupt Banco Santos and its owner, Edemar Cid Ferreria. In 2005 as per judicial order, the collection was placed in museum custody; ten years later (and before this present action), MAC asked for reimbursement of conservation expenses. At the end of 2019, the Museum was awarded only $37,000. However, MAC sought reimbursement in the form of artwork (not cash), as the Banco Santos works represent 15% of the collection. The online auction of these works commenced on September 21 and will continue until October 2. MAC has stated they will not be buying back the works, which they have taken care of for almost 15 years.

European Union |The anonymous artist Banksy lost his case against a greeting card company over the use of the “Flower Thrower” image, concluding the parties’ two-year dispute. In February of 2014, Banksy applied for an EU trademark of the mural image, Flower Thrower; however,  this past month, its trademark protection was overturned, despite the artist’s efforts to use the trademark and sell merchandise at a pop-up store in Croydon, London. The panel of judges ruled that Banksy’s request and endeavors were rooted in “bad faith” attempts at seeking E.U. trademark law loopholes. Full Colour Black Limited v. Pest Control Office Limited, No. 33 843/2020 C (European Union Trade Mark on September 16, 2020).

France | In Paris, the New-York gallery Marlborough and its former director of Asian arts, Philippe Koutouzis, along with a retired curator from the Guimet Museum, Jean-Paul Desroches are being accused of bribery for promoting an exhibition done by artist Chu Teh-Chun. This action includes claims that Desroches received favors from the Gallery and the artist including €20,000 for a catalogue sponsored by Marlborough and payment of flights for trips to Madrid, Hong Kong, and Beijing.

France | The Paris Court of Appeals ordered that three paintings by André Derain be restituted to the family of French-Jewish collector and art dealer René Gimpel, who died in a concentration camp in 1945.

Italy | Two suspects were caught stealing artifacts and coins from the Chiesa di Sant’Agata al Collegio church in Sicily. In addition to theft, the two men vandalized the music school and library and attacked various sacred spaces. This is the second time in two months the church has been damaged by acts of theft and vandalism.