Case Law Corner – Archives 2019
Below are our selected archives of 2019 art law cases, organized by date of filing or opinion. If you are looking for a specific case, you can use the shortcut CTRL+F and search by keyword.
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Last updated: October 27, 2022.
From the January 2019 Newsletter
One and J Gallery v. Christie’s Inc. et al, No. 650005/2019 (Sup. Ct. N.Y. Cnty. filed Jan. 02, 2019). One and J Gallery’s motion for a temporary injunction pending arbitration to halt Christie’s sale of an unnamed Francis Bacon painting, worth at least $10 million, has been discontinued. Christie’s acted as the exclusive agent of One and J Gallery, however, One and J Gallery alleged that Christie’s sought to sell the painting in a “commercially unreasonable manner in violation of the U.C.C.” At the time that One and J Gallery entered into this agreement with Christie’s, One and J Gallery received a loan from Christie’s in the amount of $4.9 million. The sale of the Bacon painting was going to pay down the loan. However, One and J Gallery alleged that Christie’s made no attempts to sell the work and later Christie’s sold an additional work provided by One and J Gallery for less than market value, in order to begin repayment of the loan. The litigation has since been discontinued.
De Csepel, et al. v. Republic of Hungary, et al., No. 17-1165 (U.S. Jan. 7, 2019). On January 7, 2019, the Supreme Court of the United States deniedthe Herzog family’s petition for certiorari. The Herzogs are heirs of Baron Mor Lipot Herzog, a Jewish art collector, whose artwork was stolen during WWII. The heirs have been attempting to reclaim the works from Hungary to no avail. The writ proposed the Supreme Court examine questions of jurisdiction.
Kush et al v. Grande et al., No. 2:2019cv00186 (D. Nev. filed Jan. 31, 2019). Artist Vladimir Kush is suing singer Arianna Grande for copyright infringement for scenes in her music video “God is a Woman.” The case centers around the representation of a woman dancing in the wick of a candle. Kush claims that Grande, her record label, and others involved in the music video, copied his expression of that concept.
From the February 2019 Newsletter
The Art and Antique Dealers League of Am., Inc. et al v. Basil Seggos, No. 1:2018cv02504 (S.D.N.Y. filed Feb. 1, 2019). The Art and Antiques Dealers League of America brought an action against the Commissioner of the New York State Department of Environmental Conservation (“DEC”) claiming that the New York State Environmental Conservation Law § 11-0535-A is unconstitutional. The law forbids the selling and trading of ivory articles and the dealers claim that the state law is preempted by federal law which has a broader antiques exception. The court has dismissed the claim.
Patrick Hoelck v. Billionaire Boulevard, Inc. et al., No. 2:2019cv00939 (C.D. Cal. filed Feb. 7, 2019). Photographer Patrick Hoelck is suing a number of companies alleging that they reproduced T-shirts that contained images substantially similar to his portrait of rapper Ice Cube. Complaint available upon request.
Vismanos et al., v. Philippe Hoerle-Guggenheim, No. 2:2019cv01115 (C.D. Cal. filed Feb. 13, 2019). Art dealer Philippe Hoerle-Guggenheim is being sued for fraud after accepting payment for paintings which were never received. The plaintiffs, collectors Liza Vismanos and Randy Rosen purchased three paintings, including a Renoir, and claim Hoerle-Guggenheim has repaid a portion of the funds but has been evasive about the artwork and further payments.
U.S. v. Boone, 18-cr-634 (S.D.N.Y Feb. 14, 2019). Mary Boone, the New York-based art dealer has been sentenced to 30 months in jail for tax evasion. Supporters of Boone suggested house arrest. However, the court determined, in-line with the government’s sentencing memorandum, that Boone should serve time for her actions. Both of Boone’s galleries will be closing with their final exhibitions ending on April 27th.
U.S. v. Gimelson, No. 1:17-CR-00094-TWP-MJD (7th Cir., filed on Feb. 15, 2018). The US government filed an intent to sue Brian Gimelson for tax evasion after his involvement in the sale of a Caravaggio painting. Green Moss Partners, established by Gimelson, sold the painting for approximately $1.2 million and never paid the appropriate taxes. Gimelson pleaded guilty to two counts of attempting to evade taxes, and subsequently filed an appeal before the 7th Circuit on February 15, 2019.
Castillo v. G&M Realty L.P., No. 0:18-CV-00498 (2d. Cir. filed Feb. 22, 2018). In February 2018, the graffiti artists of 5Pointz were awarded statutory damages in the amount of $6.75 million after real estate developer Gerald Wolkoff whitewashed the 45 street art paintings before receiving permits to demolish the buildings on which they were painted just 10 months later. Wolkoff filed an appeal in the 2d Circuit soon after Judge Block’s decision, on the assertion that the court mistakenly found the artworks to be of “recognized stature,” claims that the artworks had “no economic value,” and requests that the case be reassigned to a new judge if remanded, claiming Judge Block’s “impartiality is in question.” Case calendaring has been scheduled for the week of August 26, 2019 to determine the trial date for the appeal.
State St. Glob. Advisors Tr. Co. v. Visbal, No. 650981 (Sup. Ct. N.Y. filed Feb. 25, 2019).The investment firm State Street Global made headlines two years ago when the firm commissioned artist Kristen Visbal to create the ‘Fearless Girl’ statue located in Bowling Green. After discovering that Visbal created replicas for display, State Street Global filed a trademark infringement action against the artist. The motions for a preliminary injunction and restraining order in the “Fearless Girl” lawsuit were both denied, on grounds of lack of jurisdiction by the New York Supreme Court. The company who had commissioned the “Fearless Girl” statue, originally placed in front of the “Raging Bull” on Wall Street, sued the artist for making and selling unauthorized copies of the sculpture. The case has since been transferred to the Southern District of New York.
Gowen v. Helly Nahmad Gallery, Inc., 2019 N.Y. Slip Op. 01350 (1st Dep’t Feb. 26, 2019). In the suit seeking the return of “Seated Man with Cane” (1918), a Modigliani painting allegedly looted by the Nazi-occupied French government, the First Department determined that defendants’ motion to dismiss on forum non conveniens grounds was properly denied in 2018. Because the plaintiff and several defendants maintained residences in New York and the key documents had been translated for the court, the First Department ruled that the defendants failed to meet their heavy burden of dismissal on grounds of forum non conveniens.
From the March 2019 Newsletter
Molis v. Sotheby’s, Inc., No. 1:19-cv-01987 (S.D.N.Y. March 1, 2019). Patrick Molis, a collector of modern art, is suing Sotheby’s for fraudulent inducement after he consigned a Picasso entitled “Nu Assis Dans Un Fauteuil” (1963) to a representative of the auction house. Molis alleges that he agreed to the consignment on the condition that it would be sold to a private collector. Sotheby’s sold the work to a public collector for under market value, without Molis’ knowledge. Molis is now claiming misrepresentation. Originally filed in the Supreme Court of the State of New York, County of New York, the case was moved on March 1, 2019, to the United States District Court for the Southern District of New York.
Fourth Estate Pub. Benefit Corp. Wall-Street.com, No. 17-571 (U.S. Mar. 4, 2019). The Supreme Court of the United States has officially spoken on whether an action for copyright infringement can be brought prior to registration being granted by the copyright office. The question emerged after petitioner, the Fourth Estate Public Benefit Corporation, ended its licensing agreement with respondent, Wall-Street.com, LLC. Fourth Estate brought an action for copyright infringement when Wall-Street.comcontinued to use licensed materials. However, Fourth Estate was still in the process of obtaining its copyright registration. The Supreme Court ruled that a lawsuit can only be brought once the Copyright Office registers the copyright and not during the process of registration. However, a copyright owner can still recover for copyright infringement that occurred before and after the registration.
Noland v. Janssen, No. 17-CV-5452 (JPO), 2019 U.S. Dist. LEXIS 37781 (S.D.N.Y. Mar. 8, 2019). A recent district court ruling has dismissed artist Cady Noland’s lawsuit filed against Berlin’s Galerie Michael Janssen, collector Wilhelm Schürmann and Berlin’s KOW Gallery. She had filed a lawsuit seeking destruction of her wooden sculpture, Log Cabin (1990). Her lawsuit alleged that her moral rights under the Visual Artists Rights Act (VARA) were violated as well as her copyright, because, as she argued, the log cabin was entirely reconstructed from new wood without permission or notice, constituting a moral rights violation as well as the production of an unauthorized copy. Judge J. Paul Oetken ruled, however, that she could not sue under the U.S. Copyright Act because the restoration of the altered work took place in Germany. She will now be able to replead her case once more. Complaint available upon request.
Metcalfe v. Ulta Salon, Cosmetics & Fragrance, Inc. et al., No. 1:19-cv-02357 (S.D.N.Y. filed March 15, 2019). Dominic Sebastian Leon Metcalfe, an artist and designer based in Amsterdam, Netherlands, has filed a complaint against Ulta Salon for counterfeiting of one of his holographic artworks on the packaging of Ulta’s beauty products, alleging violations of copyright law. The complaint is available upon request.
Williams et al. v. The Nat’l Gallery, London, et al. No. 18-997 (U.S. Mar. 18, 2019). The three grandchildren of Greta Moll, the subject of a portrait by Matisse, have been litigating in the US for compensation from the National Gallery of London. Moll’s heirs claim that the painting was stolen, in violation of international law, and that they should be compensated for their lost property. The family filed a petition for certiorari after the Second Circuit ruled against them, finding that the National Gallery acquired the painting in good faith and not in violation of international law. Therefore, the Second Circuit found that the National Gallery was subject to presumptive immunity under the Foreign Sovereign Immunities Act. The Supreme Court of the United States’ denial of certiorari essentially ends the claimants’ cases before US courts.
Art & Antique Dealers League of Am., Inc. v. Seggos, No. 1:18-CV-02504 (S.D.N.Y. filed Mar. 20, 2018). Last year, two trade associations of New York-based art and antiques dealers filed suit against Basil Seggos, the Commissioner of the New York State Department of Environmental Conservation, seeking invalidation of the New York State Environmental Conservation Law, prohibiting the sale of antiques containing 20% or more of ivory. They claim that the ECL is preempted by federal law. After a procedural back-and-forth between the parties, the dealers’ third amended complaint has been permitted to proceed in court as of March 2019.
U.S. v. The Painting Formerly Entitled A Family Portrait And Currently Entitled An Amorous Couple Or Alternatively A Loving Glance By The Artist Pierre Louis Goudreaux, No. 1:2019-cv-02517 (S.D.N.Y filed Mar. 21, 2019).The United States government had begun a civil forfeiture action for a Rococo painting that was stolen seventy years ago by the Nazis as they fled Kiev. The painting by Pierre Louis Goudreaux, known now as “An Amorous Couple,” had been missing from the Khanenko Museum since 1943, until it was put up for auction in 2013.
Silver v. Gagosian Gallery, Inc. et al, No. 652090/2018 (NY Sup. Ct., Mar. 14, 2019) and Tananbaum v. Gagosian Gallery, Inc.et al, No. 651889/2018 (NY Sup. Ct., Mar. 22, 2019). Two collectors, Silver and Tananbaum, have brought separate actions against the Gagosian Gallery. The collectors purchased works by Jeff Koons from the gallery, however, they allege that the gallery misrepresented the status of the artworks and that the production of the works has been unreasonably slow. The Gagosian sought to have Silver’s complaint dismissed, however the motion to dismiss was denied.
Estate of Margaret Kainer et al v. UBS AG et al., 2018-968 (1st Dep’t filed Mar. 27, 2018). The plaintiffs, heirs of Margaret Kainer, are seeking the restitution of artworks that were stolen by the Nazis and are now in the possession of the Defendants, UBS AG, UBS Global Asset Management, Inc., Norbert Stiftung f/k/a, and Edgar Kircher (“Foundations”). The estate alleges that these defendants conspired with co-defendant Christie’s to deprive the estate of their right in these artworks by falsely claiming that these Foundations were legitimate heirs of Margaret Kainer, in order to create a marketable title.
Mercedes Benz USA LLC v. Daniel Bombardier, No. 2:19-cv-10951 (E.D. Mich. filed on March 29, 2019). Mercedes is seeking a declaratory judgment to validate their use of a street mural created by artist Daniel Bombardier, also known as DENIAL. The feud started over Instagram when the company posted a series of pictures featuring its G 500 Series truck in front of the Detroit mural. The street artist threatened Mercedes with a copyright lawsuit, to which they replied that they “respect artists and the arts” and that “it regularly partners with cultural institutions and supports art festivals to advance the arts.” Complaint available here.
From the April 2019 Newsletter
U.S. v. Rohana, 2:18-cr-00100 (E.D. Pa. 2019). The case against shoe-salesman Michael Rohana ended on April 12, 2019, in a mistrial due to a jury split on acquittal. The case was brought after an incident that occurred in December of 2017, when Rohana attended an ugly-sweater party at the Franklin Institute in Philadelphia. Apparently drunk and disoriented, Rohana entered a closed terracotta warrior exhibition and broke the thumb off of one of the statues, subsequently keeping the thumb in his desk drawer. Rohana was charged with two federal crimes: theft and concealment of a cultural heritage item. Rohana’s lawyer argued that the law used to prosecute his client was established for art heists and thieves, not drunken misdeeds. Order available upon request.
Portland Museum of Art v. Germain, No. CV- 17-299 (Me. Super. Ct. Cumberland County Ct., 2018). The Portland Museum of Art (PAM) in Maine is suing Anne Marie Germain, the caretaker of art collector and museum donor, Eleanor G. Potter. Until 2015, the museum was Potter’s primary beneficiary of $2 million. However, in 2015, Potter amended her will leaving the bulk of her estate to Germain. Potter subsequently passed away in March, at the age of 89. The museum has accused Germain of elder abuse and claims that she manipulated Potter into changing her will. Germain maintains that she was a friend of Potter and was without ill-intention when acting on her behalf.
Silver v. Gagosian Gallery, Inc., No. 652090/2018 (N.Y. Sup. Ct. filed Apr. 12, 2019). In April 2018, Hollywood Producer Joel Silver sued Gagosian alleging the gallery failed to deliver a Jeff Koons sculpture, Balloon Venus Hohlen Fels, which Silver purchased for $8 million in 2014. He sought the return of the $3.2 million he had paid to date, plus interest and fees. In June, the producer dropped his lawsuitafter it was revealed that billionaire art collector Ron Perelman – who had previously sued the gallery in 2014 over artwork transactions valued at $45 million – was secretly paying Silver’s legal fees. Gagosian and Silver reportedly reached a settlement in which Silver agreed to move forward with the purchase.
Hall v Gascard, No. 16-cv-418-SM, 2019 U.S. Dist. LEXIS 67629 (D.N.H. Apr. 22, 2019). Wall Street trader and art collector, Andrew J. Hall, has won his lawsuit against a former college professor and her son who sold them a series of fake Leon Golub paintings. The Gascards were ordered to pay $465,500 in damages to Hall for fraud and conspiracy to commit fraud, after Hall’s counsel exposed misrepresentations that the Gascards had made about the works’ provenance and offered expert testimony that the works were well-made fakes. Hall recently that the defense’s arguments were “patently unreasonable”, meaning that the litigation was conducted in bad faith, which would, under New Hampshire law, mean that he could be awarded attorney’s fees. This was rejected by Judge Steven J. McAuliffe, however, who did not find that the defense’s narrative was “patently unreasonable”, though it was, of course, not convincing in many respects. Judgment available upon request.
From the May 2019 Newsletter
Allen v. Kilmer, No. 1:18-CV-00907-GBW-JFR (D.N.M. filed May 3, 2019). Last September, Texan artist Bale Creek Allen brought a copyright infringement suit against Val Kilmer for the actor-turned-artist’s 22kt Tumbleweedsculpture. It is undenied that Allen had been creating and selling Tumbleweed sculptures in galleries in Santa Fe and Austin for several years prior, and according to the complaint, Kilmer spoke with Allen – under the pretense that he was interested in acquiring one of Allen’s Tumbleweed sculptures – inquiring about the process and inspiration for his creations. Kilmer then created his own nearly identical sculpture, which Allen is seeking to stop production, display or publishing. Kilmer’s May 3, 2019 answer asserts that Allen’s works are uncopyrightable, lacking the requisite originality, and that Allen did not register his copyright until after Kilmer had created his sculptures, therefore limiting Allen’s right to recovery.
Greenway II, LLC v. Wildenstein & Co., No. 1:19-CV-04093 (S.D.N.Y. filed May 7, 2019). Greenway is a trust representing Mr. Wallace, a private collector, and has filed a suit against New York’s Wildenstein & Co. gallery for common law fraud based upon the sale of a Pierre Bonnard painting “Still Life with Basket of Fruit”, which was recently discovered to be inauthentic. The artwork was acquired from the Trust’s predecessor in 1985 for $275,000 and transferred to Greenway for estate planning purposes in 2017. In 2018, leading Bonnard expert Guy-Patrice Dauberville advised that the painting was inauthentic. The suit alleged that Wildenstein failed to conduct research on the authenticity of the painting and failed to disclose the work’s absence from Bonnard’s catalogue raisonnés. Wildenstein filed a Motion to Dismiss primarily based on (1) the plaintiff’s lack of standing because the right to bring suit has not been expressly been assigned to Greenway, (2) the fact that that the Trust itself had access to the catalogue raisonné, and (3) that the trust failed to prove Wildenstein’s intent to defraud.
White v. Freedman, No. 1:13-CV-01193 (S.D.N.Y. May 8, 2019). On May 8, Judge Paul Gardephe of the Southern District of New York permitted two collectors’ claims of fraud to proceed against the owners of the now-closed Knoedler gallery, Michael Hammer and his company, 831 Holdings. Both plaintiffs had purchased fake Abstract Expressionist paintings from the gallery in the early 2000s. Although Judge Gardephe dismissed direct claims against Hammer and 831, on the basis that they did not necessarily know the paintings were frauds, he did hold them liable for any fraud committed by gallery itself. The decision is based on the possibility that Hammer may have mixed his personal and business expenses, eliminating any limited liability protection he would have had as company owner.
The People of the State of N.Y. v. Sorokin, No. 02441/2018 (N.Y. Sup. Ct. May 9, 2019). Former New York art-world socialite Anna Delvey Sorokin was found guilty on eight counts, including grand larceny in the first, second, and third degrees, and theft of services. She was sentenced this May to four to 12 years in prison and was ordered to pay $198,596 in restitution and $24,000 in fines. Delvey, as she is better known in the art world, claimed to be a German heiress Among and a lifelong art collector. She had elaborated plans to establish the “Anna Delvey Foundation,” a luxury art club on Park Avenue South in Manhattan, for which she tried to secure investors and a bank loan of upwards of $20 million.
Urbain Pottier v. Hotel Plaza Lasdelicias, Inc., 379 F.Supp.3d 130 (2019). In May 2019, the District Court of Puerto Rico decided that street artist Patrick Urbain Pottier had no claim against the destruction of a commissioned, site-specific mural that he created for a hotel bar in Ponce, PR. The bar having moved, the hotel copied the mural onto wallpaper to move it to the new location and covered the original mural without seeking the artist’s consent. While the court held that the artist had no moral rights over the site-specific piece, the hotel was nonetheless liable for copyright infringement based on the unauthorized copy of the work onto wallpaper. The decision is available here.
Von Saher v. Norton Simon Museum of Art, 2019 U.S. LEXIS 3446 (May 20, 2019). In July 2018, pursuant to the Act of State Doctrine, the Ninth Circuit upheld the District Court’s decision to let a pair of paintings by Lucas Cranach the Elder, “Adam” and “Eve,” remain in the collection of the Norton Simon Museum of Art in Pasadena, California. Von Saher petitioned the Supreme Court of the United States to hear the case, but certiorari was denied on May 20, 2019.
From the June 2019 Newsletter
Ciccone v. Gotta Have It! Collectibles, Inc., 2019 Slip Op. 04333 (N.Y. App. Div. June 4, 2019). Last year, Madonna filed for an injunction to prevent Gotta Have It! Collectibles from holding a sale of her personal belongings, which were consigned to the auction house by Madonna’s ex-art advisor, Darlene Lutz. While a temporary injunction was granted in July 2017, the Manhattan Supreme Court reversed in April 2018, lifting the injunction and dismissing the case after finding that Madonna’s claims were time-barred due to the passing of the three-year statute of limitations. On June 4th, the Appellate Division affirmed the decision. The sale of the contested items is scheduled to begin on July 17, 2019.
Shope v. Frida Kahlo Corporation, No. 1:19-cv-01614 (D. Colo. filed June 5, 2019). On May 27, a third controversy arose surrounding the Frida Kahlo Corporation’s (“FKC”) assertion of their trademark rights to the artist’s name and likeness. FKC submitted a “notice of intellectual property infringement” to online arts and crafts retailer Etsy, against the work of folk artist Nina Shope who creates dolls using the likeness and name of Kahlo. The artwork listings reported by FKC were removed by Etsy, though many more of Shope’s Frida Kahlo dolls remain available for purchase. In response, Shope filed suit in the District of Colorado against FKC on June 5th seeking a declaratory injunction of non-infringement. Shope maintains that use of Kahlo’s name and likeness for creation of dolls is not an infringing use.
Lam v. Mamacha LLC et al, Index No. 653320/2019 (N.Y. Sup. Ct. filed June 6, 2019). On June 6th, Dallas-based artist Dan Lam sued New York gallery The Hole and Mamacha Cafe for allegedly failing to pay the artist for her artworks following a 2018 exhibition. Lam claims she has been paid only $6,000 out of a total of nearly $36,000 owed for twenty-one artworks. Eight of the artworks were sold, while the others were lost or damaged. The Hole claims that Mamacha is the only party in a fiscal relationship with Lam, but Lam maintains that her works were consigned with both parties and thus both are properly named as defendants in the suit.
Lehmann Maupin LLC v. Yoo, 1:18-cv-11126-AJN (S.D.N.Y. June 10, 2019).Last fall, Lehmann Maupin Gallery filed suit against former employee Bona Yoo for allegedly stealing Trade Secrets. The gallery accused Yoo of taking confidential client information when she left to become a Sales Director at Lévy Gorvy. In response, Yoo countersued on the basis that the gallery’s suit was filed out of spite and they did not have exclusive rights to the data. On June 10th, 2019, the District Court for the Southern District of New York dismissed the case with prejudice. No comment has been made as to whether the parties reached an out-of-court settlement.
Philipp v. Fed. Republic of Germany, 2019 U.S. App. LEXIS 18188 (D.C. Cir. filed June 18, 2019). Last year, the Court of Appeals for the D.C. Circuit ruled that the heirs of the art dealers who sold the Guelph Treasure may pursue their claims against the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz in U.S. Federal Court. On June 18th, the court denied the defendants’ petition for rehearing en banc. The claims against Germany and the SPK were filed under the Foreign Sovereign Immunities Act, on the basis that the forced sales were in violation of international law. This decision confirms last year’s ruling that claimants do not have to exhaust all remedies abroad before pursuing their claims against sovereign defendants in U.S. courts.
Moi v. Chihuly Studio, Inc., 2019 U.S. Dist. LEXIS 103576 (W.D. Wash. June 20, 2019). In May 2017, Michael Moi brought suit against Dale Chihuly, claiming he co-authored certain artworks and was thus owed over $20 million dollars from the sales. On June 20th, Chihuly’s motion for summary judgment was granted, thereby dismissing all claims brought by Moi. The District Court for the Western District of Washington held that Moi could not prove joint authorship, independent copyrightable interest, nor did he have a claim under promissory estoppel, and, finally, Moi’s claims were time barred by the three-year statute of limitations for copyright claims.
Accent Delight Int’l Ltd. v. Sotheby’s, 2019 U.S. Dist. LEXIS 105864 (S.D.N.Y. June 25, 2019). In October 2018, Russian billionaire and art collector Dmitry Rybolovlev brought suit against Sotheby’s, alleging the auction house materially assisted art advisor Yves Bouvier in defrauding Rybolovlev of approximately $1 billion by overcharging the collector on thirty-eight works of art. Sotheby’s was involved in the sales of 14 of the artworks in question, for which Rybolovlev seeks $380 million in damages. Sotheby’s filed a motion to dismiss the New York lawsuit and to keep certain records sealed. On June 25th, the district court for the Southern District of New York largely denied the motion to dismiss and denied in part and granted in part the motion to seal, meaning this suit can proceed despite the fact that the parties also have ongoing litigations internationally.
Marc Baradel v. Asher Edelman, No. 653717, (Sup. Ct. N.Y. filed Jun. 25 2019) French collector Marc Baradel has alleged that two insurance companies as well as Asher Edelmean’s art-financing company owe him millions after his Constantin Brancusi sculpture, Le Poisson (The Fish) fell off its pedestal and broke in half. Edelman contradicts this and says that Baradel is responsible for the fall himself, having personally set it up on the pedestal. The sculpture allegedly broke the “minute” that the consignment agreement was handed to Baradel. Baradel seeks more than @22.5 million in damages from all the defendants, while Edelman’s lawyer has said that they would be filing a motion to dismiss Baradel’s suit. Complaint available upon request.
Zuckerman v. Metropolitan Museum of Art, 2019 U.S. App. LEXIS 19057 (2d Cir. June 26, 2019). The Metropolitan Museum of Art has prevailed against the heirs of German Jewish businessman Paul Leffman in their claim to the painting The Actor by Pablo Picasso. Leffman sold the painting in 1938 for $12,000, in order to fund the family’s escape from fascist Italy to Switzerland after they had fled Nazi Germany the prior year. The painting was donated to the Met in 1952, but the family did not bring a claim to the painting until 2010. Previously, the District Court for the Southern District of New York ruled that the family failed to demonstrate the painting was sold under duress. On appeal, the Second Circuit again dismissed the case, this time on the basis that the plaintiff’s claim was time barred under the equitable defense of laches.
From the July 2019 Newsletter
The Andy Warhol Foundation For The Visual Arts, Inc. v. Goldsmith et al, No.1:17-cv-02532 (S.D.N.Y. July 1, 2019). The District Court for the Southern District of Manhattan ruled on July 1st that Andy Warhol’s use of Lynn Goldsmith’s 1981 photograph of iconic pop singer Prince was fair use, based on a finding that Warhol’s series was “transformative.” The Andy Warhol Foundation’s motion for declaratory judgment was granted and Goldsmith’s countersuit was denied, concluding the litigation that began in 2017. Read our Case Review.
Morgan Art Found. Ltd. v. McKenzie, No. 1:18-cv-04438-AT (S.D.N.Y. July 1, 2019). Heated legal action has surrounded the estate of Robert Indiana since the day before his death last May. As we reported, the suit was initiated by the Morgan Art Foundation, Indiana’s agent for the past twenty years, against American Image Art, its founder Michael McKenzie, and Indiana’s employee Jamie Thomas, alleging copyright and trademark infringement among other claims. American Image Art and McKenzie filed counterclaims, alleging the Morgan failed to fully pay Indiana royalties and that the Morgan fabricated unauthorized reproductions of his famous sculptures. On July 1st, 2019 the District Court for the Southern District of New York largely dismissed the counterclaims against the Morgan. Then, on July 2nd, attorneys for American Image Art and McKenzie filed to withdraw as counsel.
Heritage Capital Corporation et al. v. Christie’s Inc et al, No. 3:16-cv-03404-D (N. D. Tex., July 3, 2019). Putting an end to a suit brought in 2016 against Collectrium and its parent company Christie’s, Heritage Auctions was awarded $49 million in damages by arbitral award. The suit, ultimately settled through arbitration and recently closed in court, was based on the claim that the staff behind Christie’s Collectrium data base created various accounts and harbored data sets stolen from Heritage Auctions. While it was clear that “Collectrium knowingly violated Heritage’s user agreement and copyright registrations in creating multiple user accounts to scrape the company’s auction listings, a practice it maintained over a period of two years,” Christie’s was exempted from liability, thereby claiming victory. The motion to confirm the arbitral award is available upon request.
The Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC, No. 655489/2016, 2019 WL 2902163 (N.Y. Sup. Ct. July 5, 2019). For the second time, London-based James Mayor Gallery attempted to sue Arne and Marc Glimcher, of Pace Gallery, as well as Tiffany Bell, the editor of the Agnes Martin Catalogue Raisonné. The Gallery alleged that the defendants “unlawfully” declared 13 authentic Agnes Martin works inauthentic, costing the Gallery over $7 million. In July, a New York Supreme Court Judge dismissed the suit stating the claims were “vague” and “speculative,” and alleged no new facts since the 2016 suit, which was dismissed in 2018. Counsel for the James Mayor Gallery has indicated they intend to appeal the decision.
Reif v. Nagy, No. 161799/15, 2019 WL 2931960 (N.Y. App. Div. July 9, 2019). The First Department of New York’s Appellate Division unanimously ruled that two Egon Schiele paintings belonged to the claimants, heirs of Austrian-Jewish cabaret performer, Fritz Grünbaum. The decision revoked possession from London-based art dealer, Richard Nagy, who had owned the paintings since 2013. The court found for the claimants on the basis that they had established a prima facie case of superior title over the defendant; the court also determined that the doctrine of laches did not bar the claim.
People of New York v. Sanjeeve Asokan et al., 2019 NY 022431 (N.Y. Crim. Ct. filed July 10, 2019). Infamous Indian antiquities dealer, Subhash Kapoor, was charged with 86 counts of grand larceny, possession of stolen property, and conspiracy to defraud, alongside seven other defendants in a 185-page criminal complaint filed by prosecutors on July 10. The charges stem from a smuggling ring Kapoor allegedly ran for thirty years starting in 1986, and cover 2,600 looted artifacts worth a total of more than $145 million. Kapoor has been extradited to and held in India since his 2011 arrest in Germany.
Stuart Pivar v. John Mcfadden, 2019 NY 156970 (N.Y. Sup. Ct., filed July 16, 2019). Collector Stuart Pivar filed a lawsuit against attorney John McFadden after McFadden allegedly deceived Pivar into selling him a Constantin Brancusi bronze for $100,000, a fraction of its worth. McFadden had agreed to establish a family foundation for Stuart Pivar and assist in organizing the Pivar art collection. Pivar claims that McFadden had agreed to assist in selling the bronze, Mlle. Pogany II, to the Philadelphia Museum of Art or Christie’s, but that McFadden had no intention of doing so and aimed to obtain the Brancusi for himself. Pivar is demanding $200 million in damages for the fraud.
Goffman v. Sotheby’s, No. 19-CV-06733 (S.D.N.Y., filed July 17, 2019), Stein v. Sotheby’s, No. 19-CV-06669 (S.D.N.Y., filed July 17, 2019), and Kent v. Sotheby’s, No. 12-CV-01374 (D. Del., filed July 23, 2019). After the June 2019 announcement that Sotheby’s Auction House would be sold for $3.7 billion to BidFair USA, owned by French-Israeli Businessman Patrick Drahi, three shareholders have sued the Auction House and its board of directors. The complaints cite “materially incomplete and misleading information” as the basis for the lawsuit. The plaintiffs are seeking undisclosed damages and a preliminary injunction against the sale pending further disclosures. Sotheby’s released a statement saying the lawsuits were “expected and routine,” and the company does not believe the lawsuits to affect the closing of the sale later this year.
Portland Museum of Art v. Annemarie Germain, 2019 ME 80, 208 A.3d 772 (Me. Super. Ct. Cumberland County Ct., July 22, 2019). The Portland Museum of Art was awarded $4.6 million in its lawsuit against the late art collector Eleanor G. Potter’s caregiver Annemarie Germaine. A longtime supporter and committee member to the museum, Potter named the museum as a benefactor to receive the entirety of her art collection and an estimated $3.3 million. Subsequently, her will was changed such that Potter’s entire estate went to Germaine. The museum sued Germaine on the basis of elder abuse and coercion. On remand from the Supreme Court of Maine, the jury agreed and issued the award. Germaine intends to appeal the verdict.
Julian Rivera v. Walmart, Inc. et al, No. 2:19-cv-06550 (C.D. Cal. filed on July 29, 2019). Artist Julian Rivera, best known for his designs of a heart spelling the word “Love,” has filed a copyright lawsuit against Walmart and Ellen DeGeneres, after the defendants collaborated on a clothing line with striking similarities to the plaintiff’s work. The complaint asserts that “Defendants’ exploitation […] is particularly damaging because Rivera has carefully avoided any association with corporate culture or mass-market consumerism,” who is seeking damages for copyright and trademark infringement, along with unfair business practices. Complaint available upon request.
The People of the State of New York v. Timothy Sammons, No. 01995-2015 (N.Y. Sup. Ct. July 2019). Timothy Sammons, a British art dealer, has been sentenced to four to twelve years in prison after pleading guilty to larceny, scheming to defraud and other criminal counts. He brokered the sale of artworks to customers in the U.S., the U.K. and New Zealand and subsequently used the proceeds for his personal expenses, reportedly including first-class flight travel, credit card bills and private club memberships. He also used the artworks sold as collateral while obtaining private loans. The total value of his theft, estimated for $10-30 million and spanning more than four victims across the aforementioned countries, involved famous artworks such as “Buste de Femme” by Pablo Picasso, “Reverie” by Marc Chagall, “Calanque de Canoubiers (Pointe de Bamer)” by Paul Signac and many others.
From the August 2019 Newsletter
Chris A. Williams v. Hy-Vee, Inc. et al., No. 2:2019-cv-06671 (C.D. Cal. filed on Aug. 1, 2019). Street artist Chris Williams, a/k/a CAW, has filed a copyright lawsuit against grocery store chain Hy-Vee, claiming that the company used his 2018 mural in Des Moines, Iowa, in the background for an advertising campaign aired during the Super Bowl and thereafter. The complaint explains that the artist never gave his authorization and that he “has carefully avoided any association with corporate or mass market consumerism.” Complaint available upon request.
LeVeille v. Upchurch, No. 3:19-cv-00908 (M.D. Fla. filed Aug. 5, 2019). Artist Jacob Aaron LeVeille filed a lawsuit against rapper Ryan Edward Upchurch, for firing multiple bullets at artworks the latter had commissioned––and not paid for–– and adding his own name onto the canvases. LeVeille is seeking injunctive relief and compensatory damages under VARA’s right against intentional distortion and mutilation that are prejudicial to the visual artist’s honor or reputation. Upchurch may argue fair use and that he created entirely new artworks commenting on the original works. The complaint is available upon request.
Kush et al. v. Grande et al., No. 2:19-cv-00186-GMN (D. Nev. Aug. 19, 2019). The lawsuit between visual artist Vladimir Kush and pop singer Ariana Grande has been settled. The suit was based on the singer’s music video for her single “God is a Woman”, which the artist accused of being a rip-off of his paintings.
Dua et al. v. New York City Department of Parks and Recreation et al., 2019 NY Slip Op 06154 (N.Y. App. Div. Aug. 20, 2019). The Appellate Division of NY Supreme Court decided that the Manhattan Department of Parks and Recreation can restrict the number of art vendors in four parks, on a first-come, first-served basis. The vendors unsuccessfully claimed violation of free speech and equal protection rights under the New York State Constitution. The decision is available here.
Tananbaum v. Gagosian Gallery, Inc.et al., No. 651889/2018 (NY Sup. Ct., Aug. 20, 2019). In the lawsuit by collector Steve Tananbaum against the Gagosian Gallery over the delayed delivery of three sculptures by Jeff Koons, a New York state supreme court judge has ruled against the defendant’s motion to dismiss based on Gagosian’s breach of contract. Arguments are based on the New York Arts and Cultural Affairs Law and whether the sculptures are “limited-edition multiples,” “fine art,” or “copies.” The decision is available upon request.
From the September 2019 Newsletter
Austin Mills v. Netflix. Inc et al., No. 2:19-cv-07618-AS (C.D. Cal. filed Sept. 03, 2019). Austin Mills, a “social media personality and entrepreneur” is suing Netflix for copyright infringement, following their use of his video footage in their documentary Fyre Festival: The Greatest Party That Never Happened. Mills attended the infamous festival and documented part of the chaos that ensued, before uploading this footage to Youtube in a video titled “Fyre Festival COMPLETE Disaster. VLOG of Chaos!”. The co-producers of the film approached Mr. Mills to license his video for their film, but no agreement was reached and Mr. Mills alleges he never gave consent to the use. This marks the third lawsuit filed against the co-producers regarding the footage they used in the Fyre Festival film. Complaint available upon request.
Payne v. City of Charlottesville, No. CL 17-145 (Va. Cir. Ct. Sept. 11, 2019). After a 2017 Charlottesville City Council vote to remove the confederate statues of Robert E. Lee and Stonewall Jackson, inspiring the white supremacist Charlottesville rally, residents filed lawsuits arguing that the removal violated a historical preservation statute that prevented the removal of war memorials. This month, Judge Moore ruled in favor of the residents and, further, issued a permanent injunction to prevent their removals. Addressing the possible racist intent of the historical preservation statute, Judge Moore stated “Certainly, [racism] was on their minds, but we should not judge the current law by that intent.” Court docket here.
Mercedes Benz, USA, LLC v. Lewis et al., No. 19-10948, 2019 U.S. Dist. LEXIS 154818 (E.D. Mich. Sept. 11, 2019). The U.S. District Court for the Eastern District of Michigan denied four artists’ motions to dismiss the declaratory relief actions sought by Mercedes Benz. Mercedes Benz contended that their Instagram posts, which featured their cars with the artists’ murals in the background, did not constitute any copyright law violations. The artists sought to dismiss the motion on the grounds that (1) the action was not ‘ripe’ since the artists had not registered their copyrights with the U.S. Copyright Office, and (2) the public’s right to photograph publicly visible buildings under the Architectural Works Copyright Protection Act 1990 did not apply here as the murals met the relevant ‘pictorial, graphic and sculptural’ requirement for copyright protection. The court rejected the first argument, denying that registration is necessary for copyright protection. The court did not rule on the second argument at this stage but stated that Mercedes Benz had a ‘plausible’ claim to a right to photograph the buildings containing murals. Complaint available here and order available here.
De Fontbrune v. Wofsy, No. 5:13-cv-05957-EJD, 2019 U.S. Dist. LEXIS 156246 (N.D. Cal. Sept. 12, 2019). A 2012 French judgment will not be recognized in the U.S., ruled the U.S. District Court for the Northern District of California. The French judgment had ordered Alan Wofsy and Alan Wofsy & Associates, the publishers of The Picasso Project, reference books intended for “libraries, academics institutions, art collectors and auction houses” and containing copyrighted photographs of Picasso’s works, to pay €2 million to Yves Sicre de Fontbrune, who held the copyright in the Picasso catalogue raisonneé (known in the industry as ‘the Zervos’). The U.S. court first determined that the books would qualify under the fair use doctrine in the U.S. based on its intended consumers, the insignificant percentage of Catalogue material used (less than 10%) and the lack of business competition between the Catalogue and The Picasso Project. The court then declared it “repugnant” to “U.S. public policy promoting criticism, teaching, scholarship and research” that French law did not contain a comparable doctrine or provision. Accordingly, in the “interest of justice”, the court denied recognition of the French judgment. Full decision here.
Ye Olde Time Keepers, Inc. v. C.R. Martin Auctioneers, Inc., No. 2:17-cv-04377 (E.D.N.Y. Sep. 18, 2019) New York Corporation ‘Ye Olde Time Keepers’, owned by Dennis Nichinson and his son, Jason Nichinson and Clars Auction Gallery, the defendant, have reached a settlement, with leave to reopen the case in the event that settlement is not consummated. The defendant allegedly marketed a “rare pair of Chinese ormolu Automaton clocks”, eventually discovered to be counterfeit, fake clocks. The plaintiffs had sued for common law fraud, breach of contract, breach of express warranty and violation of the California Consumer Legal Remedies Act. Complaint available upon request.
Robert Owen Lehman Foundation, Inc. v Eva Zirkl et. al., No. E2019008883 (Monroe Cnty. Ct., filed Sept. 18, 2019). Egon Schiele’s drawing, “Portrait of the Artist’s Wife”, is now being taken to court to finally determine its ownership. The defendants in this lawsuit, Eva Zirkl, Israelitische Kultusgemeinde Wien (IKG), Michael Bar, and Robert Rieger Trust have made two “separate and competing claims to ownership” of the drawing, both on the basis of former Austrian ancestral ownership and Nazi-looting of the art work. The Robert Owen Lehman Foundation was gifted this drawing in 2016 after Robert Owen Lehman purchased it in 1964. Lehman allegedly unsuccessfully attempted to achieve a fair and just resolution with the parties and now denies the defendants’ claims to ownership of the drawing. He asks the court to invalidate any challenges against his title to the painting. Complaint available here.
FAP GmbH vs. Inigo Philbrick et. al., No. 2019-027931-CA-01 (Fla. Cir. Ct. filed Sept 20, 2019). Fine Art Partners (FAP), a German financial services firm specializing in the art world, has sued Inigo Philbrick and his gallery for breach of contract regarding the location and ownership of certain artworks. The artworks in question are worth $14 million and include pieces by Yayoi Kusama, Donald Judd, and Christopher Wool. FAP alleges that it purchased these works through Philbrick and his gallery and that these works are currently located in the gallery and in an art storage facility Artmoves Florida. The complaint alleges that, instead of moving the works to “independent specialist storage facilities”, Philbrick is trying to sell the works to a third party. FAP seeks recovery of the works, or damages. Case docket available here.
Hopi Tribe et. al. v. Donald J. Trump, No. 1:17-cv-02590-TSC (D.D.C. filed Sep. 30, 2019). Judge Tanya Chutkan has rejected the government’s motion to dismiss legal actions brought against the government’s move to shrink the iconic Bears Ears National Monument and the Grand Staircase-Escalante National Monument, allowing the legal actions brought against the administration by environmental groups and five Native American tribes to proceed. The administration reduced the size of Bears Ears by about 85 percent and reduced the Grand Staircase by about half. Docket available here, and order available here.
From the October 2019 Newsletter
Leibovitz v. Univision Communications, Inc. et al., No. 1:19-cv-09093 (S.D.N.Y. filed October 01, 2019). Famed photographer Annie Leibovitz is suing Univision Communications for infringing her copyrights. She had photographed Caitlyn Jenner for a 2015 Vanity Shoot, and these photos have recently been used by Univision without permission for an online spread on Jenner’s transition. This lawsuit was brought after Leibovitz sent Univision a takedown notice and she is seeking $150,000 per infringement and an injunction against Univision from continuing to use her photos. Documents available here.
Trombetta v. Novocin, No. 18-CV-993 (RA), 2019 U.S. Dist. LEXIS 171228 (S.D.N.Y. Oct. 2, 2019) Annamarie Trombetta, an artist who exhibits her works in New York City, commenced an action against Norb Novocin, Marie Novocin and Estate Auctions, Inc., claiming under the Lanham Act, the Copyright Act, the Visual Artist Rights Act (VARA) as well as various state laws. She sought damages from the defendants for selling a painting online that they falsely attributed to her, which allegedly negatively impacted her own sales and caused her pain and suffering. The defendants moved to dismiss the claim, and their motion was granted in part and denied in part. Her claim, under the Lanham Act, for trademark infringement, was rejected, as Trombetta failed to demonstrate that her name was a valid trademark. Her copyright infringement claim, based on the defendants’ copying of her website biography, was also dismissed as she had failed to register her copyright at the Copyright Office. Her claim under VARA, however, succeeded, as the painting was in fact falsely attributed to her, violating her moral rights, while her claims under state law were also rejected. Judgment available upon request.
George Washington High School Alumni Association v. San Francisco Unified School District; San Francisco Unified School District Board of Education, No. CPF-19-516880 (CA Sup. Ct. filed October 04, 2019). The Alumni Association of George Washington High School has sued the San Francisco Unified School District and board over their vote to cover school murals depicting slavery and genocide of Native Americans. This vote was made in the wake of critiques and feedback from students of color, their families, and teachers. There had been efforts in the 1970s to cover the murals, following protests by the Black Panther Party and the school’s Black Student Union. In its complaint, the alumni association “urgently seeks a writ to enforce protections of state law”, based on the “value of the mural as a beautiful educational tool.” Complaint available here.
Gorton et al v. New York City Department of Parks & Recreation, No. 1:19-cv-09199 (S.D.N.Y. Oct 4, 2019). Two photographers who were formerly employed by the New York Times filed a copyright infringement lawsuit against the New York City Department of Parks and Recreation. The photographers argue that the Department’s new exhibition “1978: The NYC Parks/ New York Times Photo Project” publicized their photographs to launch “massive marketing effort” without their permission. Complaint available here.
United States of America v. One Painting Entitled “Winter”, aka “Skaters” aka “Snow”, No. 1:19-cv-1271 (N.D.N.Y. filed October 15, 2019). In 1934, Jewish publisher and philanthropist Rudolf Mosse had his painting “Winter” by Gari Melchers stolen by the Nazis. Mosse had purchased “Winter” from the artist in 1900 at the Great Berlin Art Exhibition. After the theft, the painting made its way to the Bartlett Museum in Canajoharie, NY, where it was displayed until September 10 of this year. The FBI seized it on this date as property illegally and forcibly obtained by the Nazis. A complaint was filed to subject the painting to forfeiture under the National Stolen Property Act, as it entered the United States illegally. Complaint available here.
Gail Hollander et al. v. XL Capital Ltd., No. BC365455 (L.A. Cty. Sup. Ct. May 5, 2019). In 2007, art collectors Gail and Stanley Hollander filed a lawsuit against their insurance company, XL Specialty, for alleged losses in value of three Martin Kippenberg paintings – Copa III, Copa IV and Copa IX (1986). They claim these losses were the result of bad handling of the paintings, which caused damage to the cardboard frames of the triptych. They sought over $90 million in damages, and also tried to claim between $100,000 and $500,000 a year for emotional distress caused to Gail Hollander because of the case. On May 5, 2019, a jury voted 11 to one against the Hollanders’ bad faith claim. In October 2019, the LA County Court rejected the claim for damages, which meant the emotional distress claim was also rejected. Docket available here.
Ellenville LLC v. Museum of World War II Inc., No. 1:2019-cv-07020 (S.D.N.Y. filed July 26, 2019). In July of this year, billionaire art collector Robert Lauder had filed a complaint against the International Museum of World War II for allegedly “stonewalling” him because of their refusal to return World War II memorabilia to him, which he had purchased in 2018 for $25 million. These include 3,500 books, 500,000 photographs, 100 uniforms, 1,650 posters, and a Russian anti-tank cannon. Despite Lauder originally agreeing that the museum could keep the objects on view through the end of 2019, he sought repossession of the collection. This suit has just been dismissed with prejudice. Docket available here.
Meyer v. Seidel et al., No. 19STCV37731 (L.A. Cty. Sup. Ct. filed Oct. 15, 2019). Ron Meyer, Vice-Chairman of NBCUniversal, has filed a lawsuit against Susan Seidel and Jamie Frankfort for allegedly selling him a forgery. Meyer purchased what he thought was a Mark Rothko painting from them for $900,000, plus a $45,000 commission, in 2001. The painting, which has been displayed in his home since then, has now been deemed a “total forgery” with no value, according to Meyer’s attorney. His lawsuit, for fraud and breach of warranty, seeks $10 million. Complaint available here.
Federal Republic of Germany v. Philipp, No. 17-7064 (D.C. Cir. 2019). Several Jewish art dealers in Germany sought to recover a valuable art collection that was allegedly taken by the Nazis. The D.C. Circuit affirmed the District Court’s denial of Germany’s motion to dismiss, holding that Germany failed to prove that the instant case did not fall within the expropriation exception of the Foreign Sovereign Immunities Act (FSIA), which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue”. Here.
U.S. v. Any Rights to Profits, Royalties And Distribution Proceeds Owned by or Owed to Jcl Media Emi Publishing Ltd. et. al., No. CV 16-05364-DSF-PLA (C.D. Cal. filed Oct. 30, 2019). Jho Low, a Malaysian financier and art collector, has reached a settlement with the United States Department of Justice over $700 million worth of assets, including artworks by Picasso, Basquiat, Arbus, Monet, and Van Gogh. These works were reportedly “pilfered” using Malaysia’s sovereign wealth fund, 1Malaysia Development Berhad (1MDB). Some of the works, given by Low as a gift to Leonardo DiCaprio, were handed over by the latter in 2017. Agreement available here.
Guzzini Properties Ltd., v. “Untitled” by Rudolf Stingel, 2012, In Rem, No. 656467/2019 (Sup. Ct. N.Y. Cnty., filed Oct. 30, 2019) An untitled painting of a photograph of Pablo Picasso, by Rudolf Stingel, now has a new ownership claim, made by Guzzini Properties Ltd. This artwork has been at the heart of the recent lawsuit involving Inigo Philbrick, where Aleksandar Pesko and Germany’s Fine Art Partners made competing ownership claims. Guzzini alleges that they bought the Stingel painting from Philbrick in 2017, paying full and fair market value, after which it was consigned to Christie’s. They allege that both the winning bidder Stellan Holm Gallery, and Pesko, who entered into a deal with Philbrick to buy a 50 percent share in the painting, never paid their full sums and therefore do not have ownership claims to the painting. Guzzini demands the return of the painting, whose title they argue remains vested in them. Complaint available here.
From the November 2019 Newsletter
United States of America v. Kyriacou et. al., No. 1:18-cr-00102-KAM-7 (E.D.N.Y. Nov. 20, 2019). Panayiotis “Peter” Kyriacou has pleaded guilty to charges of conspiring to commit securities fraud. A former investment manager at Beaufort Securities, he allegedly conducted a stock trading and money laundering scheme which proposed the buying and re-selling of “Personnages” by Picasso, to “clean money” (approximately £6.7 million). This money would have been used to “clean up” for an undercover agent who was actually part of a “sting” by the US Securities and Exchange Commission and the UK’s Financial Conduct Authority. The sale was stopped by the FBI before any payment was made. Kyriacou faces a maximum of 10 years upon sentencing. Complaint available upon request.
U.S. v. Acoma Ceremonial Shield, No. 1:16-cv-00832-MV-JFR (D. N. M., filed Nov. 18, 2019). After a years-long international struggle, a Native American shield has been returned to Acoma Pueblo. The shield, used in traditional ceremonies, had disappeared from an indigenous village in the 1970s. It later appeared at a Paris auction in 2016, prompting the campaign for its return. The 2016 complaint, filed by the United States of America, argued that the shield’s presence at the Paris auction indicated a violation of the Archeological Resources and Protection Act (16 U.S.C.§ 470ee(b)(2)), which prevents the removal or sale of an archaeological resource from public or Indian lands without a permit or in violation of any other federal law or state law. Judge Martha Vasquez granted a motion to dismiss a forfeiture case as the last formal step to the shield’s successful return. Documents available upon request.
Davis v. Pinterest, Inc., No. 5:19-cv-07650 (N.D. Cal. Nov. 19, 2019). Award-winning photographer Harold Davis sued Pinterest in San Francisco federal court for encouraging copyright infringement. The photographer alleged that the photo-sharing app promotes “a mechanism for people to violate the copyright rights of others” and “the wholesale, unauthorized copying of photographs” by its users. Complaint available here.
International Corner – From the 2019 December Newsletter
France | Shortly after a new law was passed in France for the conservation and restoration of Notre-Dame Cathedral in Paris, an environmental group sued the government for their breach of duty of care, with regards to their slow response and passivity in preventing the large-scale release of lead into the air during the Notre-Dame fire.
France | In March 2018, French courts dismissed the case against Facebook brought by the French schoolteacher whose account was closed after he posted a photograph of Courbet’s “L’Origine du Monde” (1866). Last month, the parties have agreed that Facebook would make a donation to Le Mur, a Paris-based street art group, putting an end to the 8-year battle.
France | On August 29, 2019, the Paris lower court dismissed the claims of the heirs of art dealer René Gimpel who sought the return of three Derain paintings. While it is certain that Gimpel sold the artworks during WWII, the court ruled there was too much uncertainty to determine whether the paintings had been sold under duress, underscoring the strict burden of proof required by French courts.
Italy | Custody over Leonardo da Vinci’s “Isleworth Mona Lisa”, also known as “the Earlier Mona Lisa” is to be decided on September 9, 2019 by an Italian court. The painting is owned by an international consortium of anonymous collectors, and usually resides in a Swiss vault. The plaintiffs, the heirs of a man who bought a quarter share, are seeking to identify the people who control the artwork, after they had not been consulted before the work was exhibited in Florence.
Netherlands | Artist Ai Weiwei prevailed in his lawsuit against the car company Skandinavisk Motor Co. A/S, for the company’s use of the artist’s work “Soleil Levant” (2017) in the background of an advertisement for the Volkswagen Polo. Displayed in the windows of the Kunsthal Charlottenborg in Copenhagen, the work was created in 2017 to mark World Refugee Day, which the court used to justify their decision, seeing as the use was in “clear contradiction” with the artist’s intent and the artwork’s message.
France | Wealthy art collectors Bruce and Robbi Toll will not have their case heard by the Conseil constitutionel [the French Supreme Court] in the matter of the Nazi-looted painting “La Cueillette” by Camilla Pissaro to the descendants of Simon Bauer, a Jewish businessman. Purchased by Bruce Toll in 1996 at Christie’s, New York for $880,000, the painting was lent to a Paris museum in 2017, where the heirs of Bauer discovered its existence and sought to claim it back. The Paris lower court upheld the French rule that seizures carried out during the German Occupation as well as further business transactions of the items are “null and void” and that subsequent purchasers can never have good title. On appeal, the Toll argued that this rule was unconstitutional, as going against their right to property, which the Cour de Cassation [the French high court] refused to refer to the Conseil and will soon consider the appeal on its merits. See our case review.
Austria | Thomas K, as identified in court documents, visited the town of Gerlos in the Tyrolean Alps about a year ago. Following his stay at a four-star hotel, he posted online reviews of the hotel on Booking.com where he criticized the owners for having a portrait of a “Nazi grandpa”, pictured wearing a uniform and a swastika. Two such portraits were displayed in the lobby – one of an older man and one of a younger man, wearing a uniform with an eagle and a swastika. The hotel owners claimed that the man in the portrait was part of Wehrmacht, the unified armed forces of Nazi Germany, rather than the Nazi party, but Thomas K was able to confirm through archives that the man in the portrait was in fact a member of the Nazi party. The owners of the hotel are now suing Thomas K for defamation. The Innsbruck court granted the hotel a preliminary injunction against Thomas K, holding that the owner’s interest in protecting her reputation outweighed Thomas K’s right to freedom of expression. Thomas K has counter-sued in Germany, alleging harassment by the owner to take down his review. The trial has not concluded yet.
Portugal | José Berardo, dubbed the “Portuguese Charles Saatchi”, will forfeit his $352-million-worth collection due to unpaid loans totaling $1.1 billion. Using his collection as collateral for the bank loans and after failing to repay his debts, a joint lawsuit was filed by the banks. The Portuguese authorities were allowed to proceed with the seizure of works currently on loan to the Berardo Collection Museum in Lisbon.
Brazil | In a hasty lawsuit, the Brazilian Supreme Court overruled the censorship of a Marvel comic book, which city officials sought to prevent from being displayed at the Rio de Janeiro Bienal do Livro because it contained sexually explicit content (i.e. two men kissing). The Court preferred “the free flow of ideas, the freedom of artistic expression and the freedom of expression in this country” over protecting the sensitivity of young children and teenagers.
France | The Paris Court of Appeal rejected Poland’s request to extradite the Russian and American Gallerist Alexander Khochinsky, who was accused of possessing a Nazi-looted painting. This decision rejecting the European Arrest Warrant is rare, as the legal system of each European country ordinarily trusts its counterparts within the European Community. The French courts cited a 2018 judgment by the European Court of Justice that calls into question the independence of the Polish judicial authorities and the socio-political atmosphere in Poland, which would deny Khochinsky’s right to a fair trial. Here.
Germany | The Stiftung Preussischer Kulturbesitz (Prussian Cultural Heritage Foundation, “SPK”) will appeal to the U.S. Supreme Court to dismiss a lawsuit that seeks restitution of the Guelph Treasure, on the grounds that the U.S. courts lack jurisdiction. It has been alleged that the Guelph Treasure, a collection of medieval religious artworks, was confiscated as a result of Nazi persecution. The demands for its restitution began in 2008 and SPK has argued that the 1935 sale of the Guelph Treasure was not a forced sale. The German Advisory Commission on the Return of Cultural Property supported SPK’s argument by confirming that the sale was not forced. When a lawsuit was filed in the U.S. District Court for the District of Columbia in February 2015, SPK contended that the D.C. District Court lacked jurisdiction over the case. However, the District Court refused to dismiss the claims against SPK in 2017, and the D.C. Circuit court denied SPK’s appeal in 2018. SPK announced that it will petition the U.S. Supreme Court to reverse the lower court’s decision and dismiss the lawsuit. Here.
Germany | Prominent art dealer Michael Schultz was arrested after allegedly selling a counterfeit painting. Schultz was trying to sell an work he had previously owned to an unidentified auction house. After the artwork was purchased from the auction house, the artist was contacted and confirmed that the painting was inauthentic. Authorities also reported that Schultz had failed to deliver other works after payment. Here.
India | A Delhi high court held that Facebook and Google should remove posts about allegations of sexual harassment involving Subodh Gupta. The influential Indian artist was accused of sexual harassment in December 2018 and January 2019. Gupta has contended that the allegations are “entirely false and fabricated.” The court ruled that the “defamatory” content on the Facebook, Google, and Instagram account “cannot be permitted to be made in public domain” and banned @Herdsceneand, the account that has actively posted about Gupta’s sexual harassment allegations, from posting any #MeToo content regarding Gupta. Here.
Italy | An Italian court has suspended the loan of Leonardo’ Da Vinci’s Vitruvian Man from the Gallerie dell’Accademia in Venice to the Musee du Louvre in France. After the loan was agreed to by Italy and France on September 24, the heritage group Italia Nostra challenged the loan at the Tribunale Amministrativo Regionale (“TAR”), the administrative court of the Veneto region. The main argument of Italia Nostra was that the loan would violate an Italian law controlling the loan of works that are “susceptible to damage in transport or when on display in unfavorable environmental conditions.” The TAR accepted Italia Nostra’s argument, and the loan agreement between Italy and France regarding seven works by Da Vinci was temporarily annulled. Here. UPDATE (Oct. 16, 2019): an Italian court reversed the suspension, noting the importance of international and cultural relations between Italy and the world. Here.
Netherlands | On July 16, 2019, the Court of Appeal of Amsterdam gave an interlocutory judgment in a case regarding the “Crimean artefacts.” The Crimean artifacts are the objects that the Crimean Museums had provided on loan to the Allard Pierson Museum (“the APM”) in Amsterdam in 2014. After the APM’s exhibition, Crimea came under Russian control and the APM was subsequently asked by both the Crimean Museums and the Ukrainian State to return the objects. By the first judgment in 2016, the Amsterdam District Court assigned the objects to the Ukrainian State, but the case has been prolonged by continuing disputes. The Court has considered the preamble to the UNESCO Convention and made it clear that the APM is lawfully holding onto the objects on the grounds of its right of suspension. Now, the Court is left to examine the merits of which party is entitled to the objects. The Court has asked the parties to submit further information. Here.
UK | UK’s Ivory Act, which bans the ivory trade, was contested by the Friends of Antique and Cultural Treasures Limited (“FACT”). Although the representative group of dealers and collectors supports eradicating illegal ivory trade, FACT has challenged the breadth and strength of the Act. FACT argued that EU law fully covers the antique ivory trade and does not allow UK’s more stringent control over the ivory sales. FACT also pointed out that the impact of the measures, such as economic loss or a level of destruction of cultural property, has not been sufficiently considered. The dealers and collectors ultimately seek that antique ivory be included in the list of exemptions to the ban, lessening the restrictions on their trade. Here.
UK | The High Court in the UK recently dissolved two companies involved in a £1 million art fraud. Warrington-based Gem Tobin Ltd. and York-based Dionysus Design Services Ltd. took £700,000 and £200,000, respectively, from investors. The companies were supposed to invest those funds in works by prominent artists, including Pablo Picasso and Salvador Dali. However, investigators at the Insolvency Service reported that no evidence indicated that the two companies had made any such investments. Before the High Court in Manchester, the investigators submitted evidence that the two companies “traded with a lack of commercial probity” and received “monies wrongly obtained from members of the public.” On October 7, the High Court suspended all of the companies’ activities. Here.
UK |The Court of Appeal held that a seller paying a fee to an acquisition agent, without the buyer’s knowledge, does not make the contract for sale void or voidable. Appellant Prince Eze was a buyer who failed to complete the purchase of a house from the sellers, the Conways. Obahor, an acquisition agent, assisted Prince Eze in the transaction in 2015. Obahor told the Conways that he represented an individual who was interested in acquiring their property. Obahor and the Conways agreed on a sale price of £500,000 and a 1.5% “finder’s fee” for Obahor’s. The transaction stalled, however, and was never completed by Prince Eze. When the Conways filed a lawsuit against Prince Eze for breach of contract, Prince Eze argued that Obahor’s finder’s fee constituted a secret commission, vitiating Obahor’s authority to act on his behalf and making the contract voidable. The Court unanimously dismissed Prince Eze’s appeal, holding that the law relating to secret commissions was not relevant in this case because the relationship between Obahor and Prince Eze was not a fiduciary relationship of trust and confidence. Here.
UK | The Court in the UK refused to overturn the proposed Ivory Act (2018) despite attempts by the UK antiques trade to bring legal action. The Friends of Antique and Cultural Treasures Limited (“FACT”) had argued that the proposed Ivory Act was an excessively heavy measure to eradicate illegal trade in ivory. However, the Court concluded that the arguments and evidence presented by FACT would not have “materially” affected the outcome of the Act. Here.
France | Pablo Picasso’s former electrician and his wife were given a two-year suspended jail sentence after the Court found they stole the artists’ works and concealed them for 40 years. The couple has claimed that the works, which valued at around €80m, were gifts. However, the court of appeal in Lyon after an investigation upheld the sentence and concluded that there is no existence of a gift and the couple actually stole the 271 works of Picasso including drawings, sketchbooks, lithographies, and Cubist constructions. Here.
Germany | Cosmo Wenman, an artist who has gone through difficulties in acquiring a 3D scan of the bust of Nefertiti, has won a three-year legal battle against a German museum. Now that the museum is required to publicly release the 3D scan, Wenman plans to continue his effort in making 3D scans available to the public by bringing other museums to court.
Denmark | Artist Tal R won his copyright battle against two Northern Germanic watch sellers, Dann Thorleifsson and Arne Leivsgard, for cutting up pieces of his painting “Paris Chic” (2017) to make a collection of luxury watches. Here.