Case Law Corner – Archives 2021
Keeping track of lawsuits involving artworks, cultural property, artists’ estates, galleries, etc.
Last updated: February 22, 2022.
From the December 2021 Newsletter
Est. of Kainer v. UBS AG, No. 76, 2021 WL 5927040 (N.Y. Dec. 16, 2021).
Plaintiff, the estate of Margaret Kainer, commenced this action in the Supreme Court of New York in January 2013. Plaintiff alleged claims of conversion, unjust enrichment, and conspiracy based on a 2009 sale of an Edgar Degas painting, Danseuses, stolen from Kainer by the Nazis in the 1930s. Plaintiffs asserted that the predecessor of Defendant Norbert Stiftung (“the Foundation”) improperly obtained Kainer’s assets and that Kainer’s extensive art collection passed to them under French intestacy law. A prior action in Germany between the Foundation and Swiss localities resulted in a settlement dividing Kainer’s estate among those parties, which Plaintiff contends resulted from false claims that Kainer was domiciled in Switzerland at the time of her death with no heirs. In 2000, the Foundation, acting as Kainer’s heir, registered the Degas painting as stolen. In 2009, Defendant Christie’s contacted the Foundation to facilitate a private sale of the artwork. The Foundation entered into a Restitution Settlement Agreement with Christie’s, renouncing its rights to the painting in exchange for 30% of the proceeds from the sale. The Foundation received $1.8 million, and Christie’s sold the painting at public auction for $10.7 million. Defendants moved to dismiss Plaintiff’s complaint on forum non conveniens grounds, and the court granted the motion. In affirming the judgment, the New York Court of Appeals stated that contrary to the Plaintiff’s argument the record reflected that the lower courts “painstakingly considered” the public policies at issue and determined that the balance of factors weighed in favor of dismissal.
Glob. Art Exhibitions, Inc. v. Kuhn & Bulow Italia Versicherungsmakler GmbH, No. 20-CV-1395 (KMW), 2021 WL 5331678 (S.D.N.Y. Nov. 16, 2021).
Plaintiff Global Art Exhibitions, Inc. (“Global Art”) brought this action against five European insurers and an insurance broker alleging breach of contract covering artworks that Plaintiff arranged to send to an exhibition in Genoa, Italy. Plaintiff arranged for the lending of at least twelve works by the Italian painter Amedeo Modigliani and French painter Moïse Kisling. The Insurer Defendants covered a percentage of the policies covering the works. The policies at issue were “nail-to-nail” policies, providing coverage up to the value of the work from almost any conceivable form of loss. After Italian authorities seized twenty-one works from the exhibition, including twelve lent by or through Plaintiff, Plaintiff alleged that Defendants breached their contractual obligations by failing to advance court costs and legal fees necessary for Plaintiff to regain possession of the artworks. Defendants moved to dismiss on four grounds: lack of personal jurisdiction, forum non conveniens, lack of subject matter jurisdiction, and failure to state a claim. The Southern District of New York held that Plaintiff made a prima facie showing that personal jurisdiction exists for the claims relating to the nine works of art originating in New York City, but not for the three works based abroad. The court withheld consideration of the other asserted grounds to dismiss until the Defendants complied with New York Insurance Law § 1213(c), which requires unauthorized non-U.S. insurers to post security with the court before litigating on the merits.
Cota v. Art Brand Studios, LLC, No. 21-CV-1519 (LJL), 2021 WL 4864588, at *13 (S.D.N.Y. Oct. 15, 2021).
Plaintiffs Blend Cota and Redina Tili (the “Artists”) entered into exclusive publishing agreements with Defendant Art Brand, a Delaware LLC that sells and licenses artwork. Under the agreements, the Artists granted Art Brand the “exclusive rights to reproduce, adapt, manufacture, publish, market, distribute, sell and display all Products based on Artwork” produced by the Artists. The Artists agreed that Art Brand would own all intellectual property of artwork created under the agreements. In exchange for the Artists’ obligations under the agreements, Art Brand was to pay royalties based on sales and licenses. The agreements also contained several non-solicitation provisions. On February 19, 2021, the Artists brought suit alleging that Defendant failed to pay them royalties while limiting their ability to sell their art elsewhere and earn a living. The Artists sought a declaratory judgment that any restraint in the agreements on their ability to create, sell or distribute their artwork or enter into third-party agreements was void and unenforceable under § 16600 of the California Business and Professions Code. Defendant filed a motion to compel arbitration and, in the alternative, to dismiss the complaint contending that the Artists failed to state a claim because the non-solicitation and intellectual property provisions are valid under California law. The district court affirmed Defendant’s motion to dismiss for failure to state a claim, holding that the provisions at issue may be an unreasonable restriction under § 16600 but that the Artists did not plead facts to support such a conclusion. The arbitration clause precluded any further counterclaims raised by the Artists.
Savannah Coll. of Art & Design, Inc. v. Sportswear, Inc., 983 F.3d 1273, 1279 (11th Cir. 2020), cert. denied, 142 S. Ct. 74, 211 L. Ed. 2d 12 (2021).
Plaintiff-Appellee Savannah College of Art and Design, Inc. (“SCAD”), and Defendant-Appellant Sportswear, Inc. were in dispute over Sportswear’s use of the college’s word marks “SCAD” and “SAVANNAH COLLEGE OF ART AND DESIGN” and the college’s design mark. SCAD did not authorize Sportswear to use its marks to sell products inscribed with SCAD’s name and mascot. SCAD sued Sportswear for trademark infringement, unfair competition, false designation of origin, and counterfeiting under the Lanham Act and for unfair competition and trademark infringement under Georgia law. The Court of Appeals for the Eleventh Circuit reversed a previous district court grant of summary judgment to Sportswear on all counts. It remanded the case to determine whether Sportswear’s uses of the marks were likely to cause consumer confusion. On remand, the district court concluded the use was likely to cause confusion and granted summary judgment to SCAD. Sportswear appealed, and the Eleventh Circuit affirmed. On October 4, 2021, the Supreme Court denied cert.
Marano v. Metro. Museum of Art, 844 F. App’x 436, 437–38 (2d Cir.), cert. denied, 142 S. Ct. 213, 211 L. Ed. 2d 92 (2021).
Plaintiff-Appellant photographer Lawrence Marano appealed the dismissal of his complaint and order denying his motion for reconsideration, Marano v. Metro. Museum of Art, 472 F. Supp. 3d 76, 80 (S.D.N.Y. 2020), reconsideration denied, No. 19-CV-8606, 2020 WL 4735117 (S.D.N.Y. Aug. 14, 2020). In 2019, Marano brought a copyright infringement action against the Metropolitan Museum of Art. Marano alleged that the Met infringed his copyright by featuring his 1982 photograph of Eddie Van Halen playing his iconic “Frankenstein” guitar. The photo was featured in a Rock N’ Roll instruments exhibition on the Met’s website. The district court dismissed Marano’s complaint for failure to state a claim, holding that the Met’s display of the photo was protected by the fair use exception of the Copyright Act, 17 U.S.C. § 107. Marano challenges that the Met’s use of the photo constitutes fair use. The Court of Appeals for the Second Circuit affirmed the dismissal, citing among other factors that Marano’s stated purpose in creating the photo was to show “what Van Halen looks like in performance,” and that the Met’s exhibition highlighted the unique design of the Frankenstein guitar and its significance in the development of rock n’ roll instruments, constituting sufficiently transformative use. On October 4, 2021, the Supreme Court denied cert.
From the November 2021 Newsletter
Emden et al v. The Museum of Fine Arts, Houston, No. 4:21CV03348. (S.D. Tex. 2021)
On October 12, 2021, the heirs of Jewish art collector Max Emden filed a Complaint against the Museum of Fine Arts, Houston, in the U.S. District Court for the Southern District of Texas. Plaintiffs seek damages and declaratory relief for the sale of three valuable paintings, including eighteenth-century artist Bernardo Bellotto’s “Marketplace at Pirna,” which they allege Emden sold under duress in 1938 to an art buyer for Adolf Hitler.
Hepp v. Facebook, 14 F.4th 204 (3d Cir. 2021).
The U.S. Court of Appeals for the Third Circuit decided that news anchor Karen Hepp’s state-law claims alleging violations of her right of publicity against Facebook were not precluded by § 230 of the Communications Decency Act (the “Act”). Section 230 of the Act bars many claims against internet service providers like Facebook, extending broad immunity. On September 23, 2021, the Third Circuit held that § 230 does not bar intellectual property claims. Since Hepp’s claims rested on Facebook’s unauthorized use of her photo in a dating-service advertisement, the claims were encompassed within the intellectual property exception (§ 230(e)(2)) and thus, were not precluded. The Third Circuit’s anti-platform view in interpreting the Act marks a circuit split with the Ninth Circuit’s decision in Perfect 10, Inc. v. Amazon.com, Inc. For a more in-depth discussion, click here.
Muadhdhin Bey-Cousin v. Officer Ernest Powell, et al., No. 2:19-CV-01906-JDW, 2021 WL 5197241 (E.D. Pa. Nov. 9, 2021).
On March 28, 2016, two Philadelphia officers (“Defendants”) stopped Plaintiff, Mr. Bey-Cousin, following a call for back-up describing a 160-170 pound, 21-year-old, light-skinned African American man with minimal facial hair wearing dark blue pants and a red hooded sweatshirt or jacket. Plaintiff is a 200 pound, 32-year-old, dark-skinned African American man with a long beard wearing black sweatpants and a red puffer jacket at the time. Plaintiff was arrested and convicted for unlawfully possessing a firearm. He remained incarcerated from his arrest in 2016 until December 2018, when the Third Circuit vacated the conviction. Plaintiff filed suit alleging that the officers planted the gun on him during the arrest and asserted violations of 42 U.S.C. § 1983 for malicious prosecution and malicious use and abuse of process. Plaintiff released an album, “Busted By Da Fedz Vol. 1,” that Defendants argued had songs describing facts at issue. Defendants asked the court to permit them to cross-examine Plaintiff about his lyrics and present the lyrics to the jury. The court determined that “[i]n a society that treasures First Amendment expression, courts should start with a presumption that art is art, not a statement of fact.” Defendants did not meet their burden of rebutting the presumption that Plaintiff’s lyrics were art.
Meredith Callahan, et al., v. PeopleConnect, Inc., No. 20-CV-09203-EMC, 2021 WL 5050079 (N.D. Cal. Nov. 1, 2021).
Meredith Callahan and Lawrence Geoffrey Abraham (“Plaintiffs”) filed a class action against PeopleConnect, Inc. (“PeopleConnect”), a company that collects, scans, and extracts information from yearbooks (such as names, photos, and schools attended) and puts it into a database. Plaintiffs alleged that PeopleConnext exploited their names, photos, and likenesses for commercial purposes. PeopleConnect filed three motions, including a motion to dismiss and strike on the merits. The court granted in part and denied in part the motion. It concluded that Plaintiffs’ California Civil Code § 3344, California Business & Professions Code § 17200, and unjust enrichment claims were preempted by the Copyright Act to the extent they were based on the use of their names and likenesses taken from the yearbooks themselves to advertise reprinted yearbooks. However, to the extent the claims were based on the use of Plaintiffs’ names and likenesses to advertise the subscription membership, there was no preemption, and Plaintiffs’ claims could proceed.
Miramax, LLC, v. Quentin Tarantino (C.D. Cal. Nov. 16, 2021)
On Tuesday, November 16, Miramax filed a lawsuit against director Quentin Tarintino, asserting breach of contract, copyright infringement, trademark infringement, and unfair competition claims. Miramax alleges that Tarintino is infringing its copyrights by selling NFTs based on his original screenplay of “Pulp Fiction.” Tarantino announced his plan to auction off NFTs based on excerpts of his original script at a recent crypto-art convention in New York. The handwritten excerpts, accompanied by Tarintino’s commentary, would be made available only to the owner of the NFT. Miramax sent a cease and desist letter, claiming that the director’s plan interfered with its plans to enter the market for “Pulp Fiction” NFTs. Tarintino’s attorney responded, claiming that Tarintino’s contract is clear that he has the right to sell NFTs of his script and that Miramax’s “callous decision to disclose confidential information about its filmmakers’ contracts and compensation will irreparably tarnish its reputation long after this case is dismissed.”
Sotheby’s, Inc. v. Thut et al., No. 1:21-cv-6574 (S.D.N.Y. Aug. 3, 2021)
Sotheby’s filed a Complaint against a Florida couple, Frederic Thut and Bettina Von Marnitz (“Defendants”), and an auction house they own, for nearly $7 million. The suit follows a determination that seven pieces consigned by Defendants purported to be by Diego Giacometti were fake. According to a handwriting expert, the works– sold separately between 2016 and 2017– had forged provenance documents. After canceling the sales and refunding the buyers, Sotheby’s seeks return of the proceeds from Defendants. Recently, on November 15, Sotheby’s Motion to authorize service by alternative means of email on Defendants was granted.
The People of the State of New York v. Sotheby’s, Inc., (N.Y. Sup. Ct. Nov. 20, 2021)
In November 2020, New York Attorney General Letitia James filed suit against Sotheby’s, alleging that Sotheby’s helped an art collector evade taxes on $27 million worth of art purchases. It is argued that Sotheby’s filed fraudulent paperwork to make a “valued client” appear as an art broker rather than a collector to save millions on city and state taxes. In December, Sotheby’s filed a motion to dismiss, arguing in one instance that the Attorney General was “seeking to punish rather than simply recover sales tax.” The court has denied Sotheby’s motion to dismiss.
U.S. v. Philbrick, No. 20-cr-351 (S.D.N.Y. July 13, 2020)
On Thursday, November 18, art dealer Inigo Philbrick changed his plea from not guilty to guilty of wire fraud and now faces up to 20 years in prison. Philbrick has been in jail for almost a year and a half after being denied bail for posing a flight risk. Philbrick also agreed to turn over some $86.7 million connected with the fraud and to forfeit paintings. The judge will further determine the amount Philbrick must return to his victims. He still faces numerous civil lawsuits from investors.
From the October 2021 Newsletter
Beierwaltes v. L’Office Federale De La Culture De La Confederation Suisse, 999 F.3d 808 (2d Cir. 2021).
Art owners Hicham Aboutaam and Lynda and William Beierwaltes filed suit against Swiss government entities and officials, challenging the seizure of multiple antiquities on suspicion that they were stolen or otherwise related to criminal activity. The United States District Court for the Southern District of New York dismissed the action in Aboutaam v. L’Office Federale De La Culture De La Confederation Suisse, No. 18-CV-11167 (RA), 2019 WL 4640083 (S.D.N.Y. Sept. 24, 2019). The plaintiffs appealed. On June 8, 2021, the United States Court of Appeals for the Second Circuit affirmed the lower court’s ruling, holding that the “expropriation exception” to the Foreign Sovereign Immunities Act (the “FSIA”) did not apply to the case. Under the FSIA, foreign governments are ordinarily immune from suit in the United States. The “expropriation exception” to that general rule may be invoked when a foreign government takes the property in violation of international law. The court concluded that the antiquities here were seized as part of an ongoing law enforcement investigation, and such seizures ordinarily do not constitute a taking at all, much less a taking in violation of international law.
Edelman Arts, Inc. v. New York Art World, LLC, 193 A.D.3d 527, 142 N.Y.S.3d 343 (2021).
This dispute concerned a failed multimillion-dollar art deal between New York Art World, LLC (“Malca”) and Edelman Arts, Inc. Edelman Arts agreed to purchase an artwork from Malca and received an invoice for $5 million. On December 20, 2016, Edelman attempted to cancel the invoice, claiming issues with the “end buyer.” Edelman asserted the deal was off because it acted as an agent for the “end buyers” and further that the transaction was canceled within a reasonable time. According to Malca, the deal was done, and the invoice remained outstanding. Edelman brought suit, and both parties moved for summary judgment. On April 15, 2021, the New York State Appellate Division affirmed a December 2019 ruling granting Malca’s motion for summary judgment on its counterclaim for breach of contract and denying Edelman Arts motion. The Appellate Division concluded that Malca established prima facie that Edelman breached the parties’ agreement: Edelman failed to pay for art that it purchased from Malca, despite agreeing to the invoice when it received it. Additionally, Edelman was unable to raise an issue of fact about its claimed status as the agent of a disclosed principal. Even if Edelman had acted as an agent, the court maintained it should still be held liable because Edelman did not object to the invoice within ten days of receipt and, therefore, had no right to cancel the agreement unilaterally
Hicks v. Leslie Feely Fine Art, LLC, No. 20 CIV. 1991 (ER), 2021 WL 3617208 (S.D.N.Y. Aug. 13, 2021)
Marianne Hicks, an abstract painter, brought suit against a New York City art gallery and one of its buyers for conversion of a painting believed to be by abstract expressionist painter Friedel Dzubas. Hicks alleged she created the work entirely independently from and without the assistance of Dzubas. Hicks additionally sought replevin of the painting from the buyer, John Doe. During discovery, Hick’s motion to compel the gallery to reveal Doe’s identity was denied. The Southern District of New York concluded that Doe’s identity was not privileged and was in fact relevant and within the scope of discovery. The court further concluded that Doe’s identity was key to Hicks’ claims. As was clear to both parties, Hicks had no replevin claim unless and until she made a demand for the painting, and she needed Doe’s identity to make a demand. Hicks met her burden of showing relevance under Rule 26(b)(1), and the gallery did not show that revealing Doe’s identity was “overly broad, burdensome or oppressive.” The motion to compel was granted.
Estate of José v. Fountain Christian Bilingual Sch. Carolina, Inc., No. 181509RAM, 2021 WL 4586315 (D.P.R. Oct. 5, 2021).
The Estate of José Antonio Torres-Martinó brought various claims against Defendants Fountain Christian Bilingual School and Fountain Christian Bilingual School Carolina, including violations of the Copyright Act and the Visual Artists Rights Act (“VARA”). Plaintiff alleged that Defendants mutilated and destroyed Torres-Martinó’s mural, “Rio Grande de Loíza,” when they painted over the mural in a school they leased. Defendants moved to dismiss Plaintiff’s state law claims, alleging that Section 301 of both the Copyright Act and VARA preempted state law-based moral rights claims. The District of Puerto Rico denied Defendants’ motion to dismiss. Additionally, the court sua sponte dismissed Plaintiff’s VARA claim, since VARA does not apply to site-specific art (reasoning that the mural’s location was an “integral element” of it, and moving it would likely destroy it; therefore, it was site-specific). Plaintiff was given fourteen days to show why the copyright claim should not be dismissed, and in the alternative, why the court should exercise supplemental jurisdiction over the remaining state law claims if the copyright claims are dismissed.
Guzman v. New Mexico State Dep’t of Cultural Affs., No. 121CV00198KWRJFR, 2021 WL 1534138 (D.N.M. Apr. 19, 2021)
Artist Gilbert Guzman filed an action against the New Mexico Department of Cultural Affairs, asserting claims of breach of contract and violations of the Visual Artists Rights Act (“VARA”) arising from the Department’s planned building renovation. A mural painted by Guzman was likely to be damaged by the renovation. Guzman filed a motion for a temporary restraining order and preliminary injunction to prevent the demolition, destruction, or modification of the building and mural. The District of New Mexico denied Guzman’s preliminary injunction on four grounds, including that Guzman was not likely to suffer irreparable harm and that any harm Guzman would suffer without preliminary injunction was outweighed by the harm the Department would suffer under a preliminary injunction. A preliminary injunction, “an extraordinary remedy,” was not warranted.
Lew v. City of Los Angeles, No. 20CV10948DDPPLAX, 2021 WL 3912272 (C.D. Cal. Aug. 31, 2021).
David Lew, an international artist and muralist, also known as “Shark Toof,” brought suit against the City of Los Angeles, El Pueblo de Los Ángeles, the Chinese American Museum (“CAM”), and the Friends of the Chinese American Museum. Lew alleged that in December 2018, Defendants collectively removed artwork he created for the CAM’s multi-month exhibition “Don’t Believe the Hype: LA Asian Americans in Hip Hop” without notice. Lew created 88 original pieces of art that were placed on tote bags and hung outside CAM on clotheslines as performative art “that echoed the experience of Chinese Americans in Los Angeles . . . .” Among Lew’s claims was a violation of the Visual Artists Rights Act (“VARA”). Defendants moved to dismiss the action, first alleging that Lew could not state a claim for relief under the VARA because his works were “applied art” under the Ninth Circuit’s test. See Cheffins v. Stewart, 825 F.3d 588 (9th Cir. 2016). Defendants argued that by merely placing art on tote bags, the tote bags did not cease to have their utilitarian function. Lew claimed his art was not a “tote bag that continued to serve a ‘significant utilitarian purpose’ … it was to be sold as art to art collectors in limited edition . . . not as a grocery bag.” The court did not decide on the merits. It granted Lew leave to amend, directing him to focus his allegations on the nature of his artworks and whether the objects continued to serve a real utilitarian function.
Schmid v. City and County of San Francisco, 60 Cal.App.5th 470 (2021)
The First Appellate District Court of the State of California affirmed the dismissal of a suit concerning the removal of a bronze sculpture, “Early Days,” which was originally part of a Civic Center monument. The San Francisco Historic Preservation Commission (HPC) granted a Certificate of Appropriateness to take down the sculpture and place it in storage as the sculpture displayed a racist attitude toward Native Americans. The HPC authorized the removal based on evidence of “significant adverse public reaction over an extended period of time,” which the Board of Appeals affirmed. The appellants, under the Tom Bane Civil Rights Act (Civ. Code 52) asserted that the Board of Appeals abused its discretion in authorizing the removal of the sculpture and that the manner of the removal was illegal. The Appellate Court stated that there was no support for the allegations put forth.
Opinion available at: https://cases.justia.com/california/court-of-appeal/2021-a158861.pdf?ts=1612224038
LeVeille v. Upchurch (Dist. Court, MD Florida) (No. 3:19-cv-908-J-39MCR).
The District Court of Florida denied a motion to dismiss claims brought under the Visual Artists Rights Act (VARA) based on country rap artist Ryan UpChurch shooting the paintings of artist Jacob Aaron LeVeille’s with guns. UpChurch also made derogatory remarks about LeVeille on social media. LeVeille filed a suit against UpChurch in 2019 stating that Upchurch had intentionally mutilated his works to purposefully damage his honor and reputation and the reputation of his art.
Robar v. Village of Potsdam Board of Trustees et al., 490 F.Supp.3d 546 (2020)
The Federal District Court in New York ruled that artist Frederick “Hank” Robar’s porcelain gardens made of toilets is a form of artistic expression protected by the First Amendment. The Court first determined that the art was a form of “protected speech” and thus, the First Amendment applied. In 2018, the Village of Potsdam Board of Trustees enacted a “junk storage” law, which provides: “The deposit, accumulation, display and/or outdoor storage of junk, junk appliances, junk furniture, junk mobile homes, junk motor vehicles, garbage, regardless of quantity, is hereby prohibited within sight of neighboring property/properties and/or business concerns.” Based on this law, the local government required that Robar’s porcelain gardens be removed from public view. The court stated that Robar was entitled to a preliminary injunction against this removal because the application of the junk-storage law violated his First Amendment rights. The Court further stated that the government’s order mandating all of Robar’s porcelain gardens to be removed entirely from public view was likely unconstitutional.
Kevin Barry Fine Art Assocs. v. Ken Gangbar Studio, Inc., 486 F. Supp. 3d 1353 (N.D. Cal. 2020)
The District Court of the Northern District of California denied a motion to dismiss a complaint of copyright infringement, finding substantial similarities between two art pieces that had “similar general arrangements, with similar cluster patterns, presented in nearly the same way.” In 2018 Kevin Barry Fine Art Associates (KBFAA) brought a suit against Ken Gangbar Studio Inc. (KGSI) for a declaratory judgment of non-infringement. KGSI filed counterclaims arguing that all counter-defendants “contributorily and/or vicariously infringed KGSI’s copyrights”. The Court held that KGSI adequately pled substantial similarity to survive dismissal of its copyright infringement claims against KBFAA.
Kerson v. Vermont Law School, Inc., (Dist. Court, D. Vermont) (No. 5:20-cv-202).
Artist Sam Kerson filed a lawsuit against Vermont Law School in the United States District Court in Burlington, to preserve the mural that he created, “The Underground Railroad, Vermont and the Fugitive Slave,” or to recover financial damages if the law school removes or covers the mural. Kerson contends that the murals cannot be moved, as they were painted directly on the walls of the law school’s Chase Community Center and claims that the federal Visual Artists Rights Act prevents the removal of his work. Students asked the school to remove the murals in 2020, claiming that their depiction of African Americans is offensive. Vermont Law School filed a motion for dismissal of the suit and argues that merely covering Kerson’s work does not violate VARA.
Emden et al v. The Museum of Fine Arts, Houston (S.D. Tex. 2021) (No. 4:21-cv-03348)
Juan Carlos Emden, Nicolás Emden, and Michel Emden, the heirs of Jewish art collector Max Emden are suing the Museum of Fine Arts, Houston, for the return of Bernardo Bellotto’s Marketplace at Pirna (ca. 1764), which they claim he sold to an art buyer for Adolf Hitler in 1938 under duress. They contend that they are the work’s rightful owners and argue that “The museum’s assertion of clear title is horrific given that it emanates from the Nazi government’s ‘purchase’ of the work.”
From the September 2021 Newsletter
Spencer Elden v. Nirvana L.L.C., et al., (C.D Cal. 2021) (No. 2:21-cv-06836).
Spencer Elden is suing the band Nirvana for having used his baby portrait for their album cover in 1991. Elden appeared as a naked infant on the cover of Nirvana’s “Nevermind” and alleges the nude portrait constitutes child pornography, stating he suffered “lifelong damages” as a result of Nirvana’s use of the photograph.
Complaint available here.
Petty v. Corcoran Gallery of Art, et al., (Cal. App. 2d 2020) (No. B293796).
Susanne Jill Petty, daughter of artist Suzanne Pascal, and trustee of the Alice C. Tyler Art Trust, sued Corcoran to retrieve artwork given by the trust to Corcoran, along with one million dollars it donated as a cash gift to establish and maintain a gallery for their display. The Court of Appeals agreed with the Superior Court of Los Angeles, stating that, even if Corcoran’s arguments were considered, they lacked merit as Corcoran failed to oppose the petition and forfeited a majority of its arguments.
Qatar Investment and Projects., et al., v. Phoenix Ancient Art (2021) EWHC 2243 (QB)
A Qatari Sheikh lost his legal claim against a fine arts company, Phoenix Ancient Arts, after paying over five million dollars for two ancient statues, which he later alleged were fakes. The judge ruled that the Sheikh waited too long before serving the lawsuit on the antiquities dealer (as the Sheikh had only issued the claim days before the limitation period expired) and the judge stated that the pandemic was not a valid reason for the Sheikh’s delay in bringing the claim.
From the August 2021 Newsletter
Rockburne v. Costolo, No. 155438/2021 (N.Y. Sup. Ct. Jun. 4, 2021). Resident artist at Dia Beacon, Dorothea Rockburne, sued neighbors Richard and Lorin Costolo over a water leak in their apartment allegedly causing $2,000,000 worth of damage to her work. Richard Costolo, is the ex-CEO of Twitter and lives above Rockburne in SoHo. The complaint states that a total of 176 artworks were ruined or required significant repair, which was caused by Costolo’s delay in choosing a plumber to repair the pipes flooding his unit and Rockburne’s. The total time between Costolo being informed of the leakage and the plumber arriving was 4.5 hours and the flooding was stopped within a half hour of the plumber’s arrival. Employees of Rockburne’s studio and David Nolan Gallery immediately worked to remove as much art as possible from her loft. Rockburne claims that the Costolos’ delay in stopping the flooding negligently or intentionally breached a duty of care owed between occupants of the same building. Complaint Available Here.
Criss-A-Less Inc. v. ASDN Houston LLC, No. 2021-11255 (Dist. Ct. Harris Cty., Tex. filed Jun. 23, 2021) Criss-A-Less, D/B/A Third Planet Sci-Fi Superstore, a comic store, filed a complaint against a nearby hotel alleging their guests were throwing objects such as fire extinguishers and dishware from the hotel balconies, causing substantial damage to the roof. Interestingly, the complaint described the facts and background using a comic. Pages 6-18 feature full-page, colorful comic-style paragraphs, bringing to life the textual facts in their third-amended petition. The inclusion of the comic might be in response to opposing counsel’s purported confusion with the previous petition.
U.S. v. Pereda, No. 21-mag-6595 (S.D.N.Y. filed Jun. 29, 2021). On July 9th, 2021 Angel Pereda was arrested in New York for being a part of a scheme to sell Basquiat and Haring forgeries. Pereda has been charged with one count of wire fraud, committed in connection to the sale of “Glory Boys Kingdom,” a Basquait forgery sold by Pereda to “Individual-1”. The complaint also describes Pereda’s falsification of provenance documents in connection with the “Glory Boys Kingdom” painting to encourage Individual-1’s subsequent sale. Individual-1 was under the direction of the FBI at the time Pereda furnished the forged documents. FBI Assistant Director William F. Sweeney Jr. asserted a warning to any other forgers: “the FBI’s Art Crime Team has the resources to distinguish the real from the fake, and its members will ensure you face the consequences of your actions.” Complaint Available Here.
Reif et al. v. Nagy et al., No. 161799/2015, (N.Y. Sup. Ct. Jul. 7, 2021). In a case surrounding the ownership of Nazi-looted Egon Schiele paintings, the parties motioned for a ruling on the issue of prejudgment interest and cost. Judge Andrew Borrok held that the plaintiff is entitled to prejudgment interest from the time of conversion through a judgment entry, regardless of whether the litigation continued, per CPLR §§5001-5002. Both parties submitted appraisals regarding the value of “Woman in a Black Pinafore” (1911) and “Woman Hiding Her Face” (1912), at the time of initial conversion, November 2015, for a value of $2,500,000. Another appraisal was taken in November 2018 for a value of $3,400,000, due to Reif not being afforded physical property of the artworks during the time Defendants were awarded a stay to determine the possibility of selling the paintings at auction. The interest award is calculated at “the statutory rate of 9% per annum as part of the recovery on a conversion action.” As New York is often watched worldwide in similar cases, this ruling may greatly affect the litigation strategy for those wrongfully in possession of looted art because, prior to this ruling, there was “little-to-no financial downside” to continuing to fight for their interests in court. Opinion Available Here.
Morris v. Urban Outfitters, Inc., No. 21-cv-05602 (C.D. Cal. filed Jul. 9, 2021). British photographer Dennis Morris commenced a copyright infringement action against Urban Outfitters for use of a picture depicting Nancy Spungen and Sid Vicious of The Sex Pistols on their blog. The original image was taken by Morris backstage at Brunel University in 1977. Morris is known for his photography of Bob Marley and has been exhibited at the Brooklyn Museum, as well as the Institute of Contemporary Arts in London. Complaint Available Here.
U.S. v. A 10th Century Cambodian Sandstone Sculpture Depicting Skanda on a Peacock, No. 21-cv-06065 (S.D.N.Y. filed Jul. 15, 2021). The Cambodian sculpture was taken from Prasat Krachap Temple at Koh Ker, the capital of the ancient Khmer Empire from 928 to 944 A.D around 1997 by a person identified as “Looter-1.” After being removed from the temple, Skanda on a Peacock, was in the possession of Thai/English antiquities dealer, Douglas Latchford, a/k/a “Pakpong Kriangsak.” In 2000, Latchford sold the sculpture, which was thereafter imported into the United States. Interestingly, Latchford was given a Cambodian honor, analogous to knighthood, for saving priceless artifacts from being destroyed in the decades of war between Vietnam and Cambodia. Conversely, he was indicted for wire fraud in the United States for falsifying provenance and customs documentation in connection with the sale of Cambodian artifacts. Latchfeld died prior to trial. Upon discovery of the sculpture’s history, the most recent owner relinquished all claim to right, title, and interest of Skanda on a Peacock and surrendered possession to the United States Department of Homeland Security, who will hold the sculpture until it is transferred to the Cambodian government. Complaint Available Here.
In re The Estate of Mike Meyers A/K/A Mike Meyer Disfarmer, Deceased, No. 12PR-59-963 (Cir. Ct. Cleburne Cty. Ark. filed Jul. 17, 2021). Mike Disfarmer was a portrait photographer in Herber Springs, Arkansas. In 1959, Disfarmer died intestate with no direct heirs and, during the administration of his estate, 6,000 negative plates were sold for $5.00. The buyer, Joe Albright, sold the negatives to Peter Miller who, at his own volition and monetary investment, was able to restore 3,000 negatives. The negatives were ultimately donated to the Arkansas Arts Center Foundation, who has maintained the collection since 1977. Disfarmer’s descendants set forth their petition to reopen the Estate, claiming that the discovery of new property, which was not previously administered properly, merits reopening the Estate. Their petition states that the photographs were not properly inventoried during the original probate of the estate and then were wrongfully taken by a third-party, who used the negatives for their own benefit. A hearing is scheduled for August 3, 2021. Petition Available Here. Objection Available Here.
International Systems Group Inc. v. Carmichael et al., No. 21-cv-06301 (S.D.N.Y. filed Jul. 24, 2021). International Systems Group (“ISG”) alleges that Seth Carmichael of Carmichael Gallery, LLC breached their contract and fraudulently represented a buyer’s signature during the sale of an artwork. ISG entered into a sale contract with Carmichael for a painting and sculpture contingent on the following representations: (1) neither work would be sold within three-years, (2) ISG would have exclusive first right of refusal to repurchase the works, (3) the works would be available for museum exhibitions during the three-year period, and (4) any buyer of the works would be bound by these terms. The complaint states that Carmichael quickly flipped the works and forged a buyer’s signature on a sales agreement to mislead ISG into believing the buyer was aware of and agreed to the conditions set forth. ISG found out about resale of the works from a non-interested third party, who was unaware of the restrictions. ISG claims the conditions were material to their agreement with Carmichael, as they are meant to protect the creator of the works, a living artist, from devaluation and maintain ISG’s exclusive participation in the artist’s primary market. Complaint Available Here.
U.S. v. Chrismas, 21-cr-00127 (C.D. Cal. file Mar. 16, 2021). On Tuesday, July 27th, art dealer Douglas Chrismas surrendered himself to the FBI. Chrismas was charged with three counts of embezzlement, allegedly taking over $260,000 from the bankruptcy estate of Ace Gallery, for which he was the custodian. The indictment, unsealed on the same day Chrismas surrendered, claims that he directed money owed to Ace Gallery to be paid to an unnamed corporation, owned and controlled by Chrismas, which was not affiliated with the Gallery. Chrismas was released on $50,000 bond, with a trial set for September 21st. Should Chrismas be found guilty, the maximum statutory sentence for these charges is 15 years in federal prison. Indictment Available Here.
Steinhardt v. Hirschl & Adler Galleries, No. 0159990 (N.Y. Sup. Ct. Jul. 27, 2021). Update to the December 2020 Case Law Corner: Judge Joel Cohen dismissed well-known philanthropist Michael Steinhardt’s claim against Hisrchl & Adler Galleries. The dispute arose from the sale of Gilbert Charles Stuart’s Munro-Lenox, a famous portrait of George Washington. Hirschl & Adler sold the painting for $12 million based on a “net to you” $10 million consignment contract, which was remitted to Steinhardt while the Galleries retained the $2 million commission. Steinhardt maintained that the Galleries did not properly disclose the value of the artwork when setting the $10 million price, claiming breach of fiduciary duty, unjust enrichment, fraud, and deceptive business practices against the galleries and president, Stuart Feld. In the opinion granting the Galleries motion to dismiss, Judge Cohen states that each party was sufficiently sophisticated to have negotiated more favorable terms, like a percentage cap on the commission or a requirement of a pre-sale estimate, and that the evidence and case law used to support Steinhardt’s claims was too vague in nature or lacked relevance. Opinion Available Here.
France | On Wednesday, July 7th, a French court hearing began concerning the possible sale of a drawing believed to be Leonardo da Vinci’s, valued at roughly 8-12 million euros. The owner, whose father gifted the drawing to him, now wishes to sell it to a foreign buyer. The dispute is between the owner and France’s culture ministry, who contends that the drawing is a national treasure, and thus cannot leave France but should instead be acquired and held in the Louvre. The owner refused to sell them the drawing for 10 million euros and applied for an export permit. The culture ministry denied the owner an export permit, contesting the legality of the drawing’s provenance. On October 27th, the hearing will resume and the court will decide whether the owner should receive an export permit.
France | Pornhub’s new website is facing legal action from the Louvre and Uffizi museums. The new site and its accompanying app reinterpret classic artworks with a pornographic spin. The sexually explicit performances of these pieces of art by pornographic actors has led the Louvre and Uffizi to bring a lawsuit, arguing rights infringement and seeking the content’s removal. The museums claim that Pornhub’s commercialized use of the artwork was unauthorized.
France | Attorney Corinne Hershkovitch summoned the Musée du Louvre and Musée d’Orsay, as well as France’s culture ministry and four provincial museums, demanding the restitution of 21 works taken from the collection of Armand Isaac Dorville. The state claims that the objects were not looted, but rather sold in an estate sale after Dorville’s death. A hearing is planned for September. Armand Isaac Dorville was a prominent lawyer and collector who fled Paris in 1940, when Germany invaded France, to take refuge at his residence in the village of Cubjac in the south. After his death in 1914, his collections of paintings, sculptures, furniture, drawings, books, and manuscripts were all put up for auction. A fascist activist was appointed as the administrator of the estate by the French police, after they were directed to “eliminate all Jewish influence in the economy.
Mexico | In March, The Instituto Nacional de Antropología e Historia (National Institute of Anthropology and History) (INAH) put up signs suspending unauthorized construction on a Unesco World Heritage Site near the Mesoamerican ruins of Teotihuacán in Mexico. After these signs were ignored and the construction of an ecotourism park continued by an unidentified developer, the Mexican national guard blocked construction, seized the property, and filed criminal charges.
UK | Angela Gulbenkian, a German art dealer, was arrested in Lisbon and extradited to the United Kingdom in June 2020. A little over a year later, she pled guilty in London to two counts of theft: (1) the fraudulent sale of a Yayoi Kusama pumpkin sculpture for 1.1 million pounds in 2017, and (2) stealing 50,000 pounds from a client who entrusted the money with her to invest. Her sentencing occurred on July 28th, where she received three and a half years in prison. In light of Gulbenkian’s previous written acknowledgement of the thefts, there was not a trial. Separately, Gulbenkian also faces charges of fraudulently selling a Warhol painting of Queen Elizabeth II in 2019.
From the July 2021 Newsletter
McLeer et al. v. New York City Police Dep’t, No. 21-cv-03093 (E.D.N.Y. filed Jun. 1, 2021). Established street artist Michael McLeer, also known as “KAVES”, filed a class-action lawsuit, alleging the New York City Police Department (NYPD) and the City of New York undertook willful destruction of a work of visual art under VARA and violated 42 U.S.C. § 1983, by depriving free speech and property interests without due process. These claims are in response to the NYPD’s graffiti clean-up campaign that began in March of this year. The complaint further alleges no due diligence was done to ensure that the graffiti targeted by the campaign was actually illegal, stating the city embarked on the campaign without proper funding and enlisted untrained volunteers to cover legally approved graffiti, permanently destroying the works. The complaint takes a broad and historic view, noting the disparate treatment of graffiti in different contexts: sometimes celebrated as a meaningful contemporary art form in institutions across the country, other times treated as an activity subject to criminal liability. Along with monetary and punitive damages, the complaint also asks for an immediate injunction to halt the NYPD’s campaign. Complaint available here.
Hobby Lobby Stores Inc. v. Obbink, No. 21-cv-03113 (E.D.N.Y. filed June 2, 2021). Hobby Lobby filed a claim against former Oxford professor, Dirk Obbink, alleging fraud and breach of contract in connection with over $7 million worth of artifacts they purchased from Obbink. The artifacts were likely for Hobby Lobby’s CEO’s Museum of the Bible, planned to be located in Washington D.C. The seven private sale agreements featured ancient objects, including papyri fragments that were known to be owned and preserved by the Eypgtian Exploration Society at Oxford. The Society alleged that the papyri were stolen by Obbink, prior to his transactions with Hobby Lobby. The complaint claims Obbink defrauded Hobby Lobby by including warranties and representations regarding the authenticity of Obbink’s title and the provenance of the antiquities. The seventh transaction was never finalized, as Obbink admitted the associated artifact was, in fact, owned by the Eygptian Exploration Society. Though he committed to refund Hobby Lobby the payments that had been made prior to his admission, only a fraction of the purchase price was transferred within the agreed upon time. Currently, the Eypgtian Exploration Society has confirmed that at least thirty-two of the objects transferred from Obbink to Hobby Lobby were stolen. Complaint Available Here.
McGucken v. Kantor Gallery et al., No. 2:21-cv-04593 (C. D. Cal. filed June 3, 2021). Los Angeles-based photographer Dr. Elliott McGunken, filed suit against Kantor Gallery, Kenny Schachter (an artist also based in Los Angeles), and Art.sy Inc. on three counts: (1) acts of copyright infringement that were “wilful, intentional, and malicious,” (2) vicarious and/or contributory copyright infringement, and (3) violations of the Digital Millennium Copyright Act (17 U.S.C. §1202 – Against all Defendants, and Each). The dispute involves a photograph that McGunken created and registered with the United States Copyright Office. In claims one and two, McGunken alleges that Defendants used his photograph online and in exhibit(s) and gallerie(s) without his authorization and consent. Further, he alleges that the Defendants’ derivative works from his photograph did not transform enough to constitute “fair use.” In claim three, McGunken alleges that Defendants violated the Digital Millennium Copyright Act when they used his photograph in an exhibition in 2013 and removed McGunken’s copyright management information from his photograph and/or replaced it with false information. McGunken seeks to recover all profits “directly and indirectly attributable” to the Defendants’ unauthorized use of his photograph, statutory damages, and attorneys’ fees. Complaint Available Here.
Resurrect by Night LLC v. Philipp Plein Americas, Inc. et al., No. 2021-cv-04948 (S.D.N.Y. filed June 4, 2021). Clothing company Resurrect by Night filed an action for copyright infringement against the three companies under the Philipp Plein name. Resurrect’s clothing is designed by self-taught artist Darren Chambers and features individually painted vintage pieces inspired by “music, art, and culture,” with some three-dimensional aspects. The clothing has been sold at Barney’s and featured in magazines such as Men’s Health. The complaint alleges that Philipp Plein took these unique artistic and copyrighted designs and featured them on numerous products for sale internationally, via its own website and third-party retailers. Further, the alleged infringing products were featured in a Vogue Fashion Show as a part of Plein’s Spring 2020 collection. Complaint Available Here.
Morgan Art Found. Ltd. v. Brannan, No. 18-cv-8231 (S.D.N.Y. Jan. 28, 2020). It was announced on June 11th, 2021 that Robert Indiana’s estate reached a settlement with the Morgan Art Foundation, which holds the copyright for the artist’s 1960s “LOVE” series. A day before Robert Indiana’s death, the Morgan sued the pop artist’s estate, valued at more than $80 million, for taking advantage of Indiana and forging his work. Now that the two parties have reached a settlement, the Morgan has dropped charges against the estate. However, this settlement does not resolve two ongoing legal battles: the Morgan’s suit against an art publisher associated with Indiana’s estate and a case brought by Maine’s attorney general against Indiana’s estate, alleging the estate paid excessive fees during litigation.
Jim Olive Photography v. Univ. of Houston, No. 19-0605 (Tex., June 18, 2021): The Texas Supreme Court ruled that Jim Olive Photography’s copyright infringement claim against the University of Houston did not amount to a per se governmental taking under the Takings Clause of the United States Constitution or the Texas Constitution. Olive claimed that the University of Houston’s unlicensed use of his copyrighted photograph, “The Cityscape”, to advertise their C.T. Bauer College of Business, removed his exclusive right to exclude others, and thus deserves protection from governmental takings just as tangible property is afforded. The Court, however, was not persuaded that per se takings could be extended to intellectual property other than instances where all rights of copyright ownership are taken, analogous to taking physical possession of tangible personal property and real property. Olive maintained that the right to exclude is the most important right in the “bundle” afforded to copyright holders. In response, the court stated that if the infringement “frustrate[d] the copyright holder’s reasonable investment-backed expectations,” by severely diminishing its licensing value, there may be a line in which a per se taking may have occurred despite the holder not losing their entire bundle of rights. However, the court did not specify where that line is, leaving open the question of whether a regulatory taking analysis could extend the Takings Clause to include copyright infringement, in instances where the infringement greatly diminishes the associated financial benefits. Opinion Available Here.
Roc-A-Fella Records Inc. v. Damon Dash, No. 21-cv-5411 (S.D.N.Y. filed June 18, 2021). Jay-Z’s co-owned record label, Roc-A-Fella Records Inc. was granted a temporary restraining order halting the sale of his debut album Reasonable Doubt’s copyright being sold as a non-fungible token (“NFT”) by Damon Dash, one of the three equal partners in the company. The auction in which the NFT was meant to be sold was ultimately canceled and Dash contends that he was not intending to sell the copyrights, but rather his stake in Roc-A-Fella Records. However, SuperFarm, the platform where the sale was meant to occur, advertised the NFT as a rare opportunity to “prove ownership of the album’s copyright, transferring the rights to all future revenue generated.” The Court is scheduled to hear Dash’s argument as to why a permanent injunction should not be granted pursuant to Rule 65 of the Federal Rule of Civil Procedure on July 1, 2021. Despite this pending litigation, Jay-Z enlisted artist Derrick Adams to recontextualize the album cover and the work is set to be sold by Sotheby’s as an NFT. Complaint Available Here.
Liebowitz, et al. v. Bandshell Artist Management, No. 20-2304 (2d Cir. Jun. 25, 2021). Attorney Richard Liebowitz was sanctioned nationally by the Southern District of New York, in June 2020, which was affirmed as not overreaching by the Second Circuit. The sanction is, in part, due to Liebowitz falsely stating in a complaint that the copyright at issue was registered prior to infringement (the complaint was one of approximately a thousand copyright infringement suits filed by Liebowitz since 2017, on behalf of numerous photographers). The current ruling only addresses Liebowitz’s non-monetary sanctions, including the requirement that he provide all clients with the sanction order and file a copy of it in any copyright infringement suits he and his firm bring within a year of the district court’s opinion. The Second Circuit court is expected to provide a second opinion on the Southern District of New York’s order for $100,000 in fines shortly. Opinion Available Here.
Australia | Fresh off the heels of invalidation of their trademarks in the European Union, Banksy’s Australian applications have been approved. As of April 2021, IP Australia, the office in charge of intellectual property registrations, approved trademarks for Flower Bomber and Girl with Balloon. The objection period expired on June 29, 2021. The applicant claimed in the trademark applications that the marks are intended to prevent financial gain from companies that “misrepresent the artist and commit fraud.” However, it is important to note that the practice of using a trademark on a greeting card, for example, is not per se infringement, as such use of the mark would not encroach on the mark’s intended market and Australian Trademark protection may not prevent others from using it in this manner. In other Banksy news, the EU intellectual property office most recently invalidated Banksy’s trademarks for Radar Rat and Girl with an Umbrella, totaling four invalidations.
France | Title to Pissarro’s Shepherdess Bringing in Sheep will be transferred to the University of Oklahoma. Leone Meyer, whose relatives’ art collection was looted by the Nazis, decided to accept a modified settlement to resolve the dispute, which originated in 2013. Prior to the French Court’s anticipated final ruling on whether restitution settlement agreements between parties or restitution laws of a nation supersede, Meyer agreed to transfer the title to the work in its entirety, removing the requirement that she find a French institution to house the art upon her passing. The University stated that it will eventually transfer the work to a French institution, as it does not intend to retain the title long-term.
From the June 2021 Newsletter
In re Fine Art Group, LLC, No. 19034565 (Cal. Off. Tax App. Mar. 23, 2021). The California Tax Appellate Office lowered the tax liability of Fine Art Group LLC., from a recent tax audit, where the company proved the sales tax in question was associated with works shipped outside California. Although California statute requires shipping documentation be retained for interstate sales tax deductions, the lower court accepted other evidence. However, the Administrative Law Judge determined that evidence, such as a post-sale verification of shipping address signed by the purchaser without oral testimony, was insufficient to meet the burden. Opinion available here.
Roberts v. Puma North America, Inc., No. 1:21-cv-02559 (S.D.N.Y. filed Mar. 24, 2021). Brooklyn-based graphic designer filed a trademark infringement lawsuit against Puma over the company’s use of his “Roar Mark,” alleging a likelihood of confusion. On May 27, the court denied the plaintiff’s motion for preliminary injunction seeking to stop Puma from using his designs, ruling that Roberts failed to prove a likelihood of success on the merits required to enjoin a party from engaging in a particular behavior. Complaint available here.
Guzman v. New Mexico State Dep’t of Cultural Affairs, No. 21-cv-00198 (D. N.M. Ap. 19, 2021). Gilberto Guzman’s Halperin Building mural in downtown Santa Fe, is in jeopardy of being covered as the building is currently being renovated for the New Mexico Museum of Arts’ newest satellite branch, Vladem Contemporary. Guzman petitioned for a preliminary injunction while his VARA claim is still pending in federal court. On April 19, the Court held that Guzman had not met the burden of proof required, stating that Guzman’s inclination to repair his mural shows his intent to alter the mural working against the requirement of preventing irreparable harm. Further, the Court held Guzman’s inability to provide a bond for any delays the State may incur, should he lose at trial bars the injunction outright. Opinion available here.
U.S. v. One Antique Roman Statue, No. 21-cv-03709 (C.D. Cal. filed Ap. 30, 2021). In a civil forfeiture action, the U.S. government is seeking to seize an ancient limestone sculpture. The sculpture’s consignee and importer is none other than Kim Kardashian who had purchased the work in 2016 from Axel Vervoordt Gallery in Belgium. Gaps in its provenance and contradicting import documentation put authorities on alert when it arrived in Los Angeles in 2016. The complaint argues that the statue was illegally imported and entered the United States in violation of the Cultural Property Implementation Act. Complaint available here.
Beck ex rel. v. The Horowitz Family Foundation, No. 21-cv-01191 (N.D. Ga. filed May 10, 2021). In a civil trover and conversion action, the Heirs of Margaret and Ludwig Kainer claim the Horowitz Family Foundation is in possession of Camille Pissaro’s The Anse des Pilotes, Le Havre, which was wrongfully taken from the Kainer’s during the Nazi Regime’s reign under the HEAR Act. The Kainers purchased the work, one of Pissaro’s last, from the artist’s son in 1904. In 1932, the Kainer’s went to Switzerland with the intention of returning to Germany and their art collection, however, due to the rise of Nazi Germany, remained. Their collection, including the Pissaro, was auctioned. In 1948, the work was registered in the French Directory of stolen artwork, though, was not found by the family until it was exhibited at the High Museum of Art in Atlanta. The Horowitz Foundation was alerted to the status of the painting as a Nazi stolen work, yet have refused to acknowledge the claim or return the painting. Complaint available here.
Friel v. Dapper Labs, Inc., No. 653134/2021 (N.Y. Sup. Ct. filed May 12, 2021). Jeeun Friel submitted a claim alleging Dapper Labs sold unregistered titles via the NBA Top Shot marketplace. The videos which visually comprise the “Moments,” are licensed by the NBA to Dapper Labs for sale and then minted as NFTs able to be bought, traded, and sold live on the platform. Friel claims that Dapper Labs’ prohibition of withdrawals from the platform in order to inflate the marketplace value indicates Dapper Labs is selling securities and the sales are subject to Securities Exchange Commission regulations. If the NBA Top Shots Moments are classified as securities by the Court, then the platform would be required to file registration statements with the SEC and comply with federal securities laws, which they have not. Complaint available here.
Dr. Seuss Enters., L.P. v. ComicMix L.L.C., 983 F.3d 443 (9th Cir. 2020), petition for cert. filed (No. 20-1616). On May 17, 2021, ComicMix filed a petition for certiorari with the Supreme Court to help standardize which party holds the burden of proof in fair use defenses across circuits. In December 2020, the Ninth Circuit reversed the district court, holding that the unauthorized mash-up book titled “Oh, The Places You’ll Boldly Go!”, mixing the worlds of Dr. Seuss and Star Trek, was not fair use of Seuss’ copyrights. The court found that the book did not parody or critique Seuss’ works and it was likely to usurp Seuss’ market for derivative works. ComicMix asserts that, when a party implements a fair use defense, the copyright holder bears the burden to prove that fair use does not apply and to prove potential market harm for the copyrighted work. The Supreme Court is expected to respond on June 18, 2021. Docket available here.
Hunley et al. v. Instagram LLC., No. 21-cv-03778 (N.D. Cal. filed May 19, 2021). Photojournalists Alexis Hunley and Matthew Scott Brauer filed a class-action lawsuit against Instagram, alleging Instagram encourages secondary copyright infringement, diluting the market for licensing fees, via their embedding tool, and thus are vicariously liable. Hunley and Brauer’s claim alleges that Instagram’s platform allows for third-parties to easily take copyrighted works and directly embed the content into their articles and websites, while not affording similar tools to copyright owners to track or control the embedding. Without such a tool, plaintiffs contend, there are limited ways for copyright owners to force third parties to seek a license before publishing content taken from their platform, as Instagram encourages. Plaintiffs also allege that the encouragement and facilitation of copyright infringement serve the purpose of revenue creation by expanding Instagram’s presence and increasing its traffic. Complaint available here.
France | Pissaro’s Shepherdess Bringing in Sheep Has Yet to Lay to Rest its Ownership Dispute. Leone Meyer and the University of Oklahoma continue their legal battle for possession of Camille Pissaro’s Shepherdess Bringing in Sheep (1886) despite reaching a settlement agreement in 2016. On May 10, 2021, the French Court dismissed Meyer’s claim attempting to keep the painting in France by overturning the settlement agreement. The Court cited jurisdictional issues and Meyer’s failure to meet her burden of proof as reasons for the dismissal. A final judgment on Meyer’s claim that the painting should be returned to her possession based on the French Ordinance of April 21, 1945 is set to occur on June 2, 2021. The Ordinance rendered any sale of Nazi-looted art null and void, and would require the painting be returned to her ownership entirely.
France | French Court Held Marabout’s Hopper and Tintin Mashups are Parodies, Not Infringements. Artist Xavier Marabout was sued for copyright infringement by Moulinsart, the company that represents the interest of Tintin, the comic book character created by Herge. Marabout’s work places Tintin in the company of pin-up women in Edward Hopper’s paintings and style. The Court agreed that Marabout’s use of Hopper’s world with Tintin’s atypical (or lack thereof) interactions with women in the book series, were sufficiently transformative to be deemed parody, and thus outside the confines of copyright protection.
European Union | Bad Faith and Anonymity, Cited as Reasons for Banksy’s Second Trademark Invalidation. On May 18, 2021, the EUIPO Cancellation Division, invalidated Banky’s trademark of Monkey Sign Artwork, which was central to the dispute between Pest Control Office Limited, Banksy’s legal handling entity, and Full Colour Black Limited, a greeting card company. The Court cited Banksy’s and his attorney’s statements that the only reason the trademark was sold was to stop its transfer to another party, as a key reason for the trademark invalidation. Further, although previously criticized logic, the Court also referred to Banksy’s outward disinclination towards intellectual property protection. Finally, Banksy’s anonymity was stated as an obstacle, as he could not be identified as the true owner of the work. There are currently five subsequent Banksy trademark claims pending before the EUIPO. Decision available here.
Italy | Vatican, No Stranger to Enforcing Copyrights, Finds Itself Sued for Infringement. Street Artist Alessia Babrow’s 2013 series featured graffitied notable religious figures with a heart and the words “Just Use It.” The series was graffitied throughout Rome and this year she saw her street art featured as a part of an unlikely campaign. The 2020 Vatican Easter Stamp had an image of Christ with an added heart of his chest featuring the words “Just Use It,” written in graffiti, in the exact style of Babrow. Babrow attempted to reach the Vatican to discuss their use of her copyrighted image, however, was unsuccessful. Subsequently, she filed suit alleging copyright infringement in an Italian Court. This case has the potential to set precedent for the Italian street art community, if the court should find that an arguably anonymous author may be afforded protection from unauthorized third-party merchandising.
From the May 2021 Newsletter
Wongab Corp. v. Urban Outfitters, Inc., No. 19-cv-1660 (S.D.N.Y. Mar. 8, 2021). Wongab Corp.—a South Korea-based company that creates two-dimensional artworks for use in textiles—settled in March 2021 with Urban Outfitters, Inc. (d/b/a/ Anthropologie) in a copyright infringement matter. Plaintiff filed its lawsuit in February 2019, alleging copyright and patent infringement due to Defendants’ creation of derivative works that were produced and sold as garments. The original two-dimensional designs and alleged infringing garment that made use of the work are visible in Plaintiff’s first amended complaint.
The FOMO Factory, LLC v. Gallery Model Homes, Inc. et al., No. 21-cv-01022 (S.D. Tex. filed Mar. 29, 2021). The FOMO Factory, a Houston-based company that creates pop-up immersive art galleries where people take photos for social media, filed a federal copyright lawsuit against two furniture stores. The complaint alleges that FOMO’s Founder, Rachel Youens, took her own life after the stores refused to stop copying her displays and the Plaintiff is now seeking reparations.
Cooley v. Target Corporation et al., No. 20-cv-02152 (D. Minn. Mar. 29, 2021). A federal court in Minnesota advanced a mother’s claims that Target infringed on the copyright of her autistic son’s unique “sketch-style dot art.” In its motion to dismiss, Target argued that there was neither originality nor substantial similarity between the two works, which the court did not agree with, saying that “Plaintiff has alleged original elements and creative choices—irregularly shaped, imperfect circles, shaded in different colors and aligned imperfectly at varying distances from each other—to warrant copyright protection.”
Hicks v. Nursery New York LLC et al., No. 1:21-cv-03148-VSB (S.D.N.Y. Apr. 12, 2021). Turkish butcher Nurset Gökçe, better known as “Salt Bae,” is being sued for alleged copyright infringement and $5 million in damages. William Hicks, a Brooklyn-based artist, filed suit in the Southern District of New York on April 12, claiming Gökçe made repeated use of Hicks’s art in restaurants in Turkey, Greece, and the United Arab Emirates, without compensation. According to the suit, Hicks was commissioned by Gökçe beginning in 2017 to create multiple murals of Gökçe pictured in his viral “Salt Bae” pose, but that subsequent derivative works were created from Hicks’s art, without the artist’s permission, and used on signs, menus, bags, and more, in what the lawsuit describes as a “massive, global infringement scheme.”
State ex rel. Ohio History Connection vs. The Moundbuilders Country Club Co., No. 2020-0191 (Ohio, arguments held Apr. 13, 2021). Ohio History Connection—the state’s historical society—argues that the state can use eminent-domain to buy out the remaining lease for a Newark golf course built on a Native American earthworks (Ohio Hopewell: 2,100-1,500 years ago), known as the Octagon Earthworks. Ohio History Connection owns the property and offered the Moundbuilders Country Club $800,000 to buy out the remaining twenty-two year lease, after the lease was appraised for $1.75 million. The historical society is nominating a group of Ohio Hopewell earthworks, including the Octagon Earthworks, for designation as a UNESCO World Heritage Site, but successful designation may hinge on the Ohio Supreme Court’s determination. The Moundbuilders Country Club filed a counterclaim, arguing that the state cannot invoke eminent domain, the historical society did not act in good faith with respect to their $800,000 offer, and the Ohio Supreme Court does not have jurisdiction to hear the case. During oral arguments, justices asked whether a favorable ruling for the golf course would make a difference and why the parties cannot let a jury decide the lease buyout price. The Court will make its ruling in the coming weeks.
In re: Estate of Robert Indiana, No. 2018-0145 (Me. Knox Cty. Prob. Ct. Apr. 20, 2021). The Maine attorney general’s office filed a motion in Knox County Probate Court against counsel for Robert Indiana’s estate, alleging that the estate was overcharged—by $3.7 million—for legal fees over the last three years of litigation. The lawyer for the personal representative of the estate, Sigmund D. Schutz, argued that the legal fees were justified because of the complexity of the case. Still, the attorney general’s office is concerned about the survival of the Star of Hope Foundation (the sole beneficiary of the artist’s will) if assets, including artworks, are sold to pay lawyers and the personal representative’s fee.
Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, No. 19-cv-2420 (2d Cir. Apr. 23, 2021). The Andy Warhol Foundation for the Visual Arts petitioned the U.S. Court of Appeals for the Second Circuit for a new hearing after the Second Circuit decided against the Foundation at the end of March 2021, finding that Warhol’s use of a copyrighted photograph in his works was not fair use. The Foundation warns that the Second Circuit’s holding could “render unlawful many of the most historically significant artistic works of the last half-century” and pointed to the U.S. Supreme Court’s recent ruling in Google LLC v. Oracle America, Inc. to support their position that the Warhol work constituted fair use.
Shihab v. Vice Media LLC, No. 21-cv-3702 (S.D.N.Y. Apr. 26, 2021). Jamil Gulmann Shihab, an artist known for his photography of hip-hop music and culture, filed a lawsuit against Vice Media for publishing a photograph he took, without his permission. The photograph depicts the musicians Raekwon and Ghostface Killah and was published as part of a Vice online article. Shihab alleges that he is owed Vice’s direct and indirect profits because Vice infringed his copyright by creating a derivative work and publishing the photograph on its website. The complaint also states that Vice failed to respond to Shihab’s cease-and-desist letter issued in July 2020.
France | A suit by the Le Comité Professionnel des Galeries d’Art (The Professional Committee of Art Galleries, “CPGA”) filed against the French Government has been dismissed. The dispute arose over the Government’s decision to close commercial art galleries in France in response to the ongoing COVID-19 pandemic, despite the fact that auction houses have been allowed to remain open for exhibitions and sales. The art industry has been hit hard by the effects of pandemic restrictions, including a new 3-week lockdown that commenced on April 4, 2021. While the CPGA called the restrictions a “blatant ignorance of our trade,” the court’s decision on April 14, 2021 determined that gallery closures were “necessary and adapted measures.”
France | On April 15, 2021 The Paris Court of Appeals ruled that Venus with a Veil, a painting attributed to Lucas Cranach, must be returned to the Prince of Liechtenstein. The painting was seized in 2016 as part of an international investigation into an alleged trafficking ring of forgeries, involving the collector Giuliano Ruffini and institutions such as the Louvre, the Met, and the National Gallery in London. Venus with a Veil was taken and held as evidence to be examined for signs of forgery, as its provenance traced back to Ruffini, who is alleged to be the enterprise’s mastermind. The court ruled the painting must be returned to the Prince, as the scientific study of the work is complete (which has concluded that the painting is likely a forgery), giving the investigating judge no more grounds to hold the work as evidence.
Indonesia | The Indonesian Commercial Court at the Central Jakarta District Court sided with Chris Burden’s estate in a copyright lawsuit against Rabbit Town, a tourist attraction which installed a copy of Burden’s Urban Light installation. Urban Light (2008) is a public art installation located at the Los Angeles County Museum of Art. Rabbit Town’s copy, Love Light, was installed to capitalize on “selfie tourism.” The court ruled that Rabbit Town has 30 days to remove the artwork and issue a public apology to the estate. The executive director of the Burden estate heralded the decision as setting a meaningful precedent that artists’ rights can be protected internationally through the copyright regime.
Israel | High Court of Justice 7847/20, Hashava Foundation v. The Minister of Culture and Sports (12 November 2020), Nevo Legal Database (by subscription, in Hebrew). In March 2021, the L.A. Mayer Museum for Islamic Art canceled its plans to deaccession 268 items from its collection. The sale, which was organized by Sotheby’s, was announced in fall of 2020, but received significant public backlash. The Israeli art restitution organization Hashava Foundation petitioned Israel’s High Court of Justice in November 2020 to stop the sale. The return of the items to Jerusalem is the result of an agreement with the Al Thani Collection Foundation, which has agreed to financially support the Museum and settle with Sotheby’s. The agreement also includes a 10-year loan exchange program, whereby a major work from the Museum’s collection will be displayed at the Al Thani Collection Foundation’s exhibition space at the Hôtel de la Marine in Paris.
Russia | Russia is moving forward with the prosecution of 27-year-old artist and LGBTQ+ activist Yulia Tsvetkova on charges of disseminating pornography. Tsvetkova’s artwork features the naked female body and the online community she founded, the Vagina Monologues, promotes feminist body-positivity. The Russian state has barred the public and the press from viewing the trial, on the basis that the pornographic materials will be analyzed during the proceedings. Allies of Tsvetkova have demonstrated support through letters to the Russian prosecutor, a Change.org petition, artist petitions, and solidarity walks. Tsvetkova was also named the 2020 Index on Censorship Freedom of Expression Awards Arts Fellow. Tsvetkova was previously found guilty of “propaganda of non-traditional sexual relations among minors” and fined for her drawing of two same-sex couples with children entitled, Family is where love is.
From the April 2021 Newsletter
In re Boy Scouts of Am. and Del. BSA, LLC, No. 20-10343 (Bankr. D. Del. filed Mar. 1, 2021). On March 1, 2021, the Boy Scouts of America and Delaware BSA, LLC filed an amended chapter 11 reorganization plan (“Reorganization Plan”) in United States Bankruptcy Court in Delaware detailing how the organization plans to compensate survivors of sexual abuse. By November 16, 2020, more than 92,000 sexual abuse claims were submitted to the bankruptcy court, but the Boy Scouts of America has not determined how much (in total) they are willing to pay to settle these cases. The Reorganization Plan outlines that the compensation fund will consist of contributions from local councils (at least $300 million), assets from the sale of buildings, oil and gas royalties, and the sale of hundreds of artworks, including more than 50 paintings by Norman Rockwell. The complete list of Rockwell paintings, including the title, date, image size, and medium begins on page 132 of the Reorganization Plan.
Lanier v. President & Fellows of Harvard College, No. 1981-cv-00784 (Mass. Sup. Ct. 2021). In March 2019, Tamara Lanier filed a lawsuit seeking ownership of daguerreotypes of her ancestors, Renty and Delia Taylor; the daguerreotypes in question are located at the Peabody Museum, Harvard College. The daguerreotypes are believed to be the earliest known photographs of enslaved people in the US. According to the complaint, Renty and his daughter Delia were enslaved by B.F. Taylor; they were photographed in Columbia, South Carolina sometime in the mid-1800s, for the Harvard professor Louis Agassiz, whose reputation in the recent years has been significantly tarnished due to scientific racism his work perpetuated. Lanier challenged the Harvard Peabody Museums for exhibiting the photographs after discovering them amongst their collection. Lanier requested the daguerreotypes in a 2017 letter to then Harvard President Drew Faust, but Harvard declined. Subsequently, Lanier’s suit alleged that Harvard unlawfully possessed and reproduced the photographs as neither Renty nor Delia provided consent to Agassiz. Harvard moved to dismiss all claims. On March 1, 2021, the Massachusetts Superior Court granted Harvard’s motion to dismiss, holding that the statute of limitations and Lanier’s lack of possessory interest in the photographs barred Lanier’s property-related claims. The court likewise dismissed Lanier’s state civil rights claim through the three-year statute of limitations. Moreover, the court dismissed Lanier’s “unauthorized use of an image” claim since an individual’s consent to use photographs for commercial or advertising purposes does not extend past their death. Lanier plans to file an appeal.
Morgan Art Found. Ltd. v. McKenzie, No. 1:18-cv-04438 (S.D.N.Y. filed May 18, 2018); Morgan Art Found. Ltd. v. Brannan, No. 1:18-cv-08231 (S.D.N.Y. filed Sept. 10, 2018). There has been a new development in the intertwined lawsuits concerning Robert Indiana’s estate and legacy. In early March 2021, Robert Indiana’s estate (the “Estate”) and the Morgan Art Foundation (which owns Indiana’s copyrights) reached an out-of-court settlement. The Morgan Art Foundation originally sued publisher Michael McKenzie and Indiana’s caretaker Jamie Thomas in May 2018, alleging defamation, breach of contract, copyright infringement, and violation of the Visual Artists Rights Act. The Foundation separately sued the Estate executor, James W. Brannan, claiming mismanagement of the Estate. An arbitration hearing was scheduled for March 22, 2021 to try and resolve McKenzie’s right to continue selling editions of Indiana’s works (including the famous HOPE sculptures). The legal case in the New York District Court for the Southern District of New York has been stayed until May 17, 2021, pending fulfillment of certain settlement agreement terms.
Guzman v. New Mexico State Dep’t of Cultural Affairs, No. 1:21-cv-00198 (D.N.M. filed Mar. 8, 2021). In 1980, nationally-recognized muralist Gilberto Guzman painted Multicultural on the side of the Halpin Building in downtown Santa Fe, New Mexico. Last renovated in 1990, the Mural depicts all ethnic groups who first settled in Santa Fe. The New Mexico State Department of Cultural Affairs (“DCA”) is now renovating the building and plans to remove the Guzman’s mural. Local community members organized the Keep Santa Fe Multicultural Campaign, and the artist is suing DCA. Filed March 8, 2021, Guzman’s complaint alleges violation of moral rights under the Visual Artists Rights Act (“VARA”) (17 U.S.C. § 106A) and breach of contract. According to the complaint, Guzman entered an agreement with the then property owner in 1980, the DFA Property Control Division, in which the property owner agreed to “not alter or paint over the mural during its normal lifetime” and allow Guzman “access to the mural so that [he] may maintain said mural for its natural life.” The DCA now oversees the property under the State of New Mexico. Guzman seeks ownership interests in the mural, “exemplary and punitive damages . . . to deter future similar conduct,” and an injunction blocking actions to “remove, alter, deface, modify, mutilate, or destroy the [m]ural.” On March 24, 2021, DCA filed a motion to dismiss Guzman’s claims, arguing that VARA does not apply since the mural was painted prior to its enactment, Guzman will not suffer irreparable harm, and allowing construction to proceed promotes public interest.
Kerson v. Vt. Law Sch., Inc., No. 5:20-cv-202 (D. Vt. Mar. 10, 2021). Relying on the Visual Artist Rights Act (“VARA”) (17 U.S.C. § 106A), artist-plaintiff Samuel Kerson sought a preliminary injunction to prevent Vermont Law School from placing a barrier in front of two murals he painted in 1993. On March 10th, the U.S. District Court for the District of Vermont refused to grant the injunction and ruled that VARA does not include protection against concealment. Kerson’s artwork, The Underground Railroad, Vermont and the Fugitive Slave is comprised of two panels, entitled Slavery and Liberation. The controversy began when students complained that the murals’ depiction of Black slaves, white slave owners, and white Vermonters is offensive. On August 5, 2020, Vermont Law School President Thomas McHenry notified Kerson of the school’s intent to remove or cover the murals. Kerson determined the images could not be removed without destroying the mural and the school proposed a permanent concealment of the murals behind acoustic panels. The District Court’s ruling will allow Vermont Law School to proceed with its plans.
Lipsky v. Spanierman Gallery, LLC, 2021 N.Y. Slip Op. 30727 (N.Y. Sup. Ct. 2021). On default judgment, a New York judge permanently banned the Spanierman Gallery from displaying, publishing, or reproducing Pat Lipsky’s painting, Bright Music II. The suit began when the Gallery displayed an image of Bright Music II on an online sales platform, showing the work with distorted colors and an altered background, an act which Lipsky has claimed violated her rights under the New York Artist’s Authorship Rights Act by damaging her reputation as a prominent visual artist. The Spanierman Gallery failed to appear in court or to respond to the lawsuit in any way. Gavin Spanierman, former director of the now-closed Spanierman gallery and founder of its successor, claims that he was never aware of the lawsuit in the first place and Plaintiff’s attorneys are in the process of filing a second amended complaint to bring in another one of his entities. The order for the case may be viewed here.
Mason v. Kirkwood Comty. Coll., No. 1:21-cv-00026 (D. N.D. Iowa filed Mar. 16, 2021). Artist Molly Mason has filed suit against Kirkwood Community College of Cedar Rapids, Iowa for alleged infringement of her moral rights under VARA concerning a sculptural work she created for the college. The work in question was Mason’s “Before the Sun Speaks,” an arrangement of sculptures of glass and stainless steel with a prominent water feature component. The work was created by Mason for the college, with the approval and coordination of members of Kirkwood’s administration, and was installed in 2009. In 2020, Mason learned the work was in a heavily altered state: its water feature had been shut off, plants were placed throughout the work, and some of its parts were rusted. Mason had never been informed of the work’s altered state and, after having a offer to repair the work for the cost of her labor rejected by Kirkwood, she filed suit on March 16, 2021, citing both “reckless and willful failure to maintain the Work” and “reckless and willful insertion of plants to the Work” as mutilations or modifications that would damage her reputation as a visual artist as protected under VARA. Kirkwood, meanwhile, has responded by claiming, among other things, that Mason’s work was not protected by VARA as it is “applied art” and thus not visual art protected by VARA, and that even if it were under VARA, the architects and contractors who were involved in the work’s installation were co-authors who had waived VARA rights for the work. Mason has refuted these claims by Kirkwood, and the case is ongoing.
Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, No. 19-cv-2420, 2021 U.S. App. LEXIS 8806 (2d Cir. Mar. 26, 2021). The U.S. Court of Appeals for the Second Circuit has sided with the photographer, Lynn Goldsmith, in a copyright dispute involving a 1981 photograph of an artist formerly known as Prince and subsequent prints created by Andy Warhol. Goldsmith photographed Prince on assignment for Newsweek magazine and retained the copyright in her work. She then licensed the image to Vanity Fair, permitting Vanity Fair to commission an artist to create a work using the image. Vanity Fair then commissioned Warhol to create an image of Prince based on the photograph. Unbeknownst to Goldsmith, Warhol created fifteen additional works based on the photograph, known as the “Prince Series.” When Goldsmith discovered the Prince Series after Prince’s death in 2016, the legal battle began. The Andy Warhol Foundation for the Visual Arts (AWF) sued Goldsmith alleging the Prince Series was noninfringing, or in the alternative, made fair use of the photograph; Goldsmith countersued. The U.S. District Court for the Southern District of New York (SDNY) ruled that AWF made fair use of the photograph. The SDNY concluded that the Prince Series was sufficiently “transformative” because Goldsmith’s photo shows Prince as vulnerable, while the Warhol prints portray him as an iconic figure. The Second Circuit reversed and ruled that whether a work is transformative does not depend on the intent of the artist or the meaning a judge derives from the work.
Nike, Inc. v. MSCHF Product Studio, Inc., No. 1:21-cv-01679 (E.D.N.Y. filed Mar. 29, 2021). MSCHF, a group of artists and designers, released a new collection of sneakers in collaboration with rapper and singer Lil Nas X called the “Satan Shoes.” The “Satan Shoes” are Nike Air Max 97 shoes that have been customized to reflect a satanic theme, including the addition of red ink mixed with human blood to the midsole, a bronze pentagram added to the laces, and embroidered details referencing a biblical verse. 666 of the “Satan Shoes” were produced and were sold at $1,018 per pair (in reference to the biblical passage Luke 10:18). The shoes sold out in less than a minute. Nike has filed a lawsuit against MSCHF alleging trademark infringement, false designation of origin, unfair competition, and trademark dilution. The complaint includes screenshots of Nike customers’ social media posts, reflecting customer belief that Nike manufactured or approved of the “Satan Shoes.”
U.S. v. Walshe, No. 1:18-cr-10399 (D. Ma. April 1, 2021). Brian Walshe, 46 and from Bostom, MA, pled guilty to stealing paintings by Andy Warhol from a friend before offering fake versions for sale on eBay. According to the prosecutor, “the buyer removed the paintings’ frames and found no Warhol Foundation authentication stamps and noticed that the canvasses and staples looked new.” Walshe pleaded guilty to wire fraud, interstate transportation for a scheme to defraud, possession of converted goods, and unlawful monetary transaction and will be sentenced in August.
Marano v. The Metropolitan Museum of Art, No. 20-3104 (2d Cir. April 2, 2021). The Second Circuit dismissed photographer Lawrence Marano’s appeal of the SDNY’s decision giving reason to The Metropolitan Museum of Art in their use of Lawrence’s image of Eddie van Halen in the online catalogue for The Met’s exhibition “Play It Loud: Instruments of Rock and Roll.” Upholding the lower court’s ruling, the Court of Appeals found that The Met’s use of the photograph constituted fair use under the Copyright Act of 1976 and that it does not “impair any other market for commercial use of the photo, or diminish its value.”
France | The Cy Twombly Foundation is pursuing legal action against the Louvre, escalating the situation between the two parties. The dispute centers on the museum’s renovation of the Salle des Bronze, a portion of the Louvre that typically houses works of Etruscan art, which took place during the museum’s closure as a result of the COVID-19 pandemic, and its alleged effect on a mural by Twombly that adorns the room’s ceiling. The work, aptly named The Ceiling, was initiated in 2006 and completed in 2010, and was a site specific painting whose blue and yellow design was meant to complement the neutral colors and limestone flooring of the room’s original state. The renovations, of which the Foundation was not informed, left the room a “rusty brown” with wooden flooring, changes the Cy Twombly Foundation have called “aberrations” boasting “unsightly materials” which arguably violated the moral rights of the deceased American artist. The Cy Twombly Foundation has filed their claim in French court, where moral rights for visual artists and their creations persist beyond the death of the artist, and are being supported by both a former Louvre President and Curator. The Louvre claims that Twombly’s work exists as a separate entity to the rest of the room, and that the Foundation’s case will discourage other museums from working with contemporary artists. The suit asks for the Salle des Bronze to be returned to its former appearance, and does not ask for any additional damages.
Italy | Dolce&Gabbana filed a defamation lawsuit in a Milan civil court against U.S. fashion bloggers Tony Liu and Lindsay Schuyler. The lawsuit alleges that the bloggers’ social media posts attributing anti-Asian comments to one of the fashion house’s designers caused actionable harm to the fashion house. Liu and Schuyler’s widely-followed Instagram account, Diet Prada, critiques the fashion industry and comments on social issues. (Diet Prada has 2.6 million followers as of March 19, 2021.) Dolce&Gabbana seek more than half a billion euros in damages for money spent restoring their brand image, money lost for cancellation of their Shanghai show, and loss of sales in the Asian market. The lawsuit was filed in Italy in 2019, but did not become public until early March 2021 when Liu and Schuyler posted about it on Diet Prada. Recently, defense attorneys filed a brief arguing that Italy is not the correct venue for the case.
From the March 2021 Newsletter
Rappoport v. Nye & Co., No. 653166/2020 (N.Y. Sup. Ct. filed July 22, 2020). Controversy erupted over the sale of an early work of Rembrandt van Rijn—Unconscious Patient (Allegory of Smell)—to the collector Thomas Kaplan (“Kaplan”). The painting was first sold to Nye & Company in Bloomfield, New Jersey in 2015 and then to a Paris gallery, Talabardon & Gautier, for $870,000—before Kaplan acquired it (reportedly for $4 million). Jay Rappoport (“Rappoport”), who is part of the family that sold the Painting to Nye & Co Auctioneers, filed a lawsuit in July 2020 in New York State Supreme Court contending that the bidders at the auction, his family members, as well as Kaplan and the Leiden Collection (Kaplan’s collection), were part of a conspiracy to steal the painting and sell it at auction without his knowledge or consent. The case is ongoing and the latest filing was a memorandum from Rappoport, requesting amendments to the briefing schedule.
Accent Delight Int’l Ltd. v. Sotheby’s, No. 1:18-cv-09011 (S.D.N.Y. 2020) (order denying motion to compel production). Plaintiffs Accent Delight International Ltd. and Xitrans Finance Ltd. accuse Sotheby’s of participating in an alleged defrauding scheme. Plaintiffs accuse Sotheby’s and Yves Bouvier of defrauding them out of $1 billion when they purchased an art collection that included Leonardo da Vinci’s Christ as Salvator Mundi. The latest development concerns Plaintiff’s motion to compel production of mediation documents, including communications between Sotheby’s counsel and counsel for the sellers of the da Vinci, as well as communications between Sotheby’s counsel and the mediator. The court denied Plaintiffs’ motion, holding that a heightened standard of showing special need for the materials applies to private mediations and that Plaintiffs did not meet that standard here.
State of Washington v. Fairweather, No. 2:21-cv-00002 (W.D. Wash. filed Jan. 4, 2021). The District Court for the Western District of Washington granted a preliminary injunction in early February to prevent the sale of the National Archives in Seattle. The Washington state Attorney General’s office filed suit along with 29 indigenous tribes to stop the sale of the archives, which holds millions of boxes of documents, including histories of 272 federally recognized tribes in Washington, Alaska, Oregon and Idaho, as well as all federal records generated in the Pacific Northwest. Plaintiffs’ attorneys hoped the sale process would stop under the new presidential administration.
Meyer v. Bd. of Regents of the Univ. of Okla., No. 5:15-cv-00403 (W.D. Okla. Jan. 4, 2021). A Camille Pissarro painting—La Bergère Rentrant des Moutons (Shepherdess Bringing in Sheep)—currently on display at the Musée d’Orsay in Paris is back at the center of a lawsuit between Léone-Noëlle Meyer (“Meyer”), whose family perished in the Holocaust, and Oklahoma University’s Fred Jones Jr. Museum of Art (the “Oklahoma Museum”). Meyer claims she sold the painting under duress in 2016 in an agreement specifying that the Oklahoma Museum and the Musée d’Orsay would share ownership of the painting and alternate possession on a three-year basis (the painting is scheduled to return to Oklahoma in July 2021). As part of her claim before the District Court of Paris, Meyer alleges that a 1945 French law requiring restitution of art works stolen by the Nazis supersedes the 2016 agreement, and therefore, full ownership of the painting should revert to her. While Meyer pursues her claim in France, the District Court for the Western District of Oklahoma has simultaneously held her in contempt of court. The court ordered Meyer to stop the French proceedings in November 2020, and because she has not complied, the court requested that defendants submit a recommendation for sanctions. The Defendants recommended that Meyer pay a $3.65 million civil monetary sanction and up to $100,000 a day in penalties for contempt of court if she does not cease pursuit of her claim in France.
Edelman Arts, Inc. v. Spoelstra, No. 1:17-cv-04789 (S.D.N.Y. Jan. 11, 2021). This breach of contract claim began in March 2017 when the plaintiff, art dealer Asher Edelman, filed suit against Remko Spoelstra, Jason Holloway, SSR Invest Switzerland, and Swiss Business Council for failing to transfer payment for four Keith Haring artworks and an Edvard Munch painting. The list of defendants also included the intended recipient of the art, who is a powerful person in Abu Dhabi. Judge John G. Koeltl found for the plaintiff and directed the matter to a magistrate judge to provide a report and recommendation on the matter of damages. The magistrate judge, after considering additional evidence submitted in June 2020, awarded Edelman $6.9 million in damages. The final damages award includes lost commissions for Edelman (20% of the total sales price), lost profits on one of the Haring artworks, and interest accrued. On February 16, Judge John G. Koeltl directed the plaintiff to serve the magistrate judge’s damages report and recommendation on the defendants.
Hobby Lobby Stores, Inc. v. Christie’s Inc., No. 1:20-cv-02239 (E.D.N.Y. Feb. 1, 2021). A recent lawsuit involving an ancient Mesopotamian cuneiform tablet containing part of the Epic of Gilgamesh (“Gilgamesh Tablet” or the “Tablet”) continues with Hobby Lobby Stores’s (“Hobby Lobby”) latest amended complaint filing. Hobby Lobby has been actively building an antiquities collection for a new Washington, DC museum, the Museum of the Bible. As part of that effort, Hobby Lobby purchased the Gilgamesh Tablet from Christie’s in 2014 for $1,674,000. The court disputes began in May 2020, when the U.S. Attorney General’s office for the Eastern District of New York filed a civil forfeiture action claiming the Tablet was stolen from Iraq and illegally imported into the U.S. by Christie’s in 2014. Hobby Lobby filed their complaint against Christie’s the next day, on May 19, 2020, alleging fraud and breach of express and implied warranty—stating that Christie’s knew the Tablet was illegally imported when they sold it to Hobby Lobby. Hobby Lobby now identifies Joseph David Hackmey (“Hackmey”), an Israeli art collector, as the seller of the Tablet, with Christie’s acting as Hackmey’s agent. Hobby Lobby now also alleges that Christie’s fraudulently sold it a 10th Century Gospels manuscript that was looted from the Greek Orthodox Monastery, which the Museum of the Bible is preparing to return to Greece.
Federal Republic of Germany v. Philipp, No. 19-351, slip op. at 1 (U.S. Feb. 3, 2021). The Supreme Court sided with Germany, vacating and remanding a Nazi restitution claim case. The suit centers on a collection of medieval relics known as the Welfenschatz, worth about $224.45 million. Heirs of German Jewish art dealers alleged that the forced sale of the collection in 1935 qualifies under the expropriation exception in the Foreign Sovereign Immunities Act (FSIA) because the property was “taken in violation of international law” (28 U.S.C. § 1605(a)(3) 2018). Germany countered that they are immune from suit under the FSIA because Germany’s taking of its own nationals’ property does not fall under the exception. The heirs argued that the forced sale is an act of genocide and, therefore, the collection was taken in violation of international human rights law. The Supreme Court, concerned with opening U.S. courts up to similar World War II era claims, held that the FSIA’s expropriation exception references violations of the international law of expropriation (not violations of international human rights law), which does not include a country’s taking from its own citizens. The Supreme Court remanded, instructing the District Court to consider an alternative argument by the heirs that the art dealers were not subject to the domestic takings rule because they were not German citizens at the time of the sale.
Cyprus | In December 2020, a court in Cyprus issued an order freezing €267 million worth of assets belonging to Alexei and Dmitry Ananyev (the “Ananyev brothers”) and their wives. The Ananyev brothers are Russian art collectors and bankers who have been accused of embezzling about $1.6 billion from their former bank, Promsvyazbank. When new management took over Promsvyazbank, they revealed that artwork had gone missing from the Institute of Russian Realist Art, the museum holding Alexei Ananyev’s private collection. In November 2019, a trove of hundreds of missing paintings and rare books was found in a storage facility in Moscow. Around the same time, several journalists claimed that some of the art was transferred to a Cypriot company tied to Ananyev’s family.
France | An administrative court in Montpellier, France ruled that Louis Aliot (“Aliot”), mayor of Perpignan, order the closure of four museums. Hyacinthe-Rigaud art museum, the Casal Pairal Museum of Catalan Art, the National History Museum, and the Joseph Puig coin museum. Aliot had opened these museums in early February, in defiance of President Emmanuel Macron’s statement that France’s museums would remain closed. The court ruled that Aliot’s order could not supersede the authority of President Macron. French cultural institution leaders have become increasingly frustrated with the strict closure policies and issued an open letter to France’s Minister of Culture in early February 2021, pleading for an opportunity to reopen.
France | A French appeals court upheld a decision finding the artist Jeff Koons (“Koons”) and the Centre Pompidou in Paris guilty of copyright infringement. The photographer Plaintiff, Franck Davidovici (“Davidovici”), sued Koons, alleging that Koons used Davidovici’s advertisement image (taken for the French clothing brand Naf Naf) to create his sculpture Fait d’hiver. The appeals court increased the damages award for Davidovici; the Centre Pompidou and Koons must now pay €190,000 ($230,400) and, if they continue to feature images of the work online, they will owe an additional €600 ($700) per day.
Italy | Gabriele Seno (“Seno”), an Italian art dealer, was found guilty of attempting to sell a forged Josef Albers painting and sentenced to a one year and eight month (suspended) prison sentence. The Court in Milan also fined Seno €4,000 ($4,800). Seno attempted to sell the painting, Study for Homage to the Square, for €320,000 ($387,000). Josef Albers is known for his squares in squares paintings, which the Josef and Anni Albers Foundation has said are often forged but are recognizable counterfeits due to the artist’s signature and the paint application technique. Seno claimed he inherited the painting from his father and that the certificate of authenticity was lost. He is appealing the ruling.
Mexico | A division of the Mexican government, The National Institute of Anthropology and History (the “National Institute”), filed a claim with the attorney general’s office in Mexico seeking the return of thirty three pre-Columbian objects, prior to their auction at Christie’s in Paris. The group of objects, which included three fakes according to the National Institute, included sculptures, vessels, masks, plates, and figures from cultures originating in Mexico. In their claim, the National Institute called on Mexico’s Ministry of Foreign Relations to assist with repatriation efforts. On February 9, 2021, Christie’s went forward with the sale, which yielded €2.5 million ($3 million), claiming that the items were legitimately sold.
Switzerland | The Geneva prosecutor’s office has confirmed it will end criminal proceedings against art dealer Yves Bouvier. This is one of the latest developments in a multi-year, international dispute between Bouvier and Russian billionaire Dmitry Rybolovlev. Rybolovlev accused Bouvier of defrauding him out of $1 billion in an agreement to purchase artworks, including Leonardo da Vinci’s Salvator Mundi. There will be no indictment in Switzerland, but there are still ongoing proceedings in the U.S, the UK, and France.
From the February 2021 Newsletter
U.S. v. Dere, No. 1:20-cr-00501 (S.D.N.Y. filed on Sept. 15, 2020). Following his September 2020 arrest, art dealer Erdal Dere has been charged with aggravated identity theft for using the names of deceased collectors as the previous owners of antiquities. By falsifying prior owners, the government alleges Mr. Dere has hidden suspicious ownership histories and lied to buyers. The court has issued a Protective Order regarding required procedures for handling confidential information and a status conference has been scheduled for March 15, 2021.
Vision Makers Inc. et al. v. The Bridgeman Art Library Limited, No. 1:20-cv-09964 (S.D.N.Y. filed Nov. 25, 2020). This case, brought by professional photographers against Christie’s and other licensing entities, “concerns the blatant appropriation and infringement of an extraordinary copyrighted lithograph of the great boxer and humanitarian Muhammad Ali”, according to the complained filed in federal court in November 2020. In 1980, Plaintiff Haney captured a still photograph of Ali and, along with Plaintiff Rogers (a former attorney and judge, and currently a professional photographer), created an original lithographic poster. Despite multiple notices from Plaintiffs, Bridgeman Art allegedly acquired unauthorized reproductions of the work from Christie’s and have been displaying them online, without proper attribution or permission, since 2018.
Xiaoqian Gu v. Lehmann-Maupin L.L.C., No. 657157/2020 (N.Y. Sup. Ct. filed Dec. 21, 2020). Ms. Xiaoqian Gu (“Ms. Gu”), a resident of Hong Kong, has sued Lehmann-Maupin, a modern art gallery located in New York City (“the Gallery”) for breach of contract. The complaint alleges that the Gallery committed a breach of contract when it refused to deliver an artwork that Ms. Gu purchased. Ms. Gu claims a binding sales contract was created when, in an email exchange, the Gallery offered Ms. Gu the option to purchase the artwork and she accepted. On November 20, 2019, the Gallery issued an invoice to Ms. Gu, but, shortly thereafter, told Ms. Gu the sale would not proceed. Ms. Gu attempted to pay, but the Gallery refused her wire payment. The complaint asserts that the Gallery reversed course when two of their most important clients objected to the sale because they had been told to wait until 2020 to purchase the same artist’s works.
Keenan v. Christie’s Inc., No. 154986/2016, 2020 N.Y. Slip Op. 07706, 2020 WL 7502235, at *1 (N.Y. App. Div. Dec. 22, 2020). In June 2016, Plaintiff James Keenan sued Christie’s Inc. and RCPI Landmark Properties LLC (together, the “Defendants” ), alleging that, due to their negligence in monitoring the safety of the mechanical room, he slipped and fell during the scope of his employment, sustaining serious injury. On December 22, 2020, the court issued an order granting the Defendants’ motions for summary judgment and dismissing the Plaintiff’s claim of common-law negligence. The court held that the Defendants did not have actual or constructive notice of a slippery or wet condition in the mechanical room and that Defendant RCPI was not bound by contract to make repairs or maintain the mechanical room. Furthermore, the court found that because the Plaintiff raised additional dangerous conditions for the first time when opposing the Defendants’ motions, those additional conditions could not impose liability on the Defendants.
Weingrad & Weingrad P.C. v. Hon. Paul A. Goetz J.S.C., No. 150004/2021 (N.Y. Sup. Ct. filed Jan. 4, 2021). The Shchukin Gallery Inc. (“Shchukin Gallery” or “Shchukin”), filed a memorandum requesting that Manhattan Supreme Court Justice Paul Goetz reveal the location of five early 20th century oil paintings (three by Kashmir Malevich and two by Natalia Goncharova), collectively worth an estimated $60 million. This filing is the latest event in a tangled saga that began in 2016 when the Shchukin Gallery sued Rustam Iseev (“Iseev”), a Russian financier, for stealing the works. In October 2016, Iseev revealed the location of the paintings in a “secret letter” to the court, but has refused to reveal the location to the gallery or turn over the art. Iseev claims that the art is being held because Shchukin has failed to repay a $2 million debt. Weingrad & Weingrad, the law firm representing the Shchukin Gallery, now also has an interest in recovering the paintings in order to recover the legal fees Shchukin owes it.
McGurr v. The North Face Apparel Corp. et al., No. 2:21-cv-00269 (W.D. Cal. filed Jan. 12, 2021). Graffiti artist Leonard McGurr, a/k/a Futura, has filed a trademark lawsuit against fashion retailer The North Face. In his complaint, filed in early January 2021, Futura alleges that the logo to The North Face’s 2019 apparel line, FUTURELINE, is almost identical to the artist’s own signature motif and that the name of the collection also suggests an association between the two.
Struna v. Sotheby’s, Inc., No. 150602/2021 (N.Y. Sup. Ct. filed Jan. 20, 2021). William Struna (“Struna”) filed a petition against Sotheby’s, Inc. and Cirker’s Moving and Storage Co., Inc. seeking pre-action discovery. The Petition requests a court order directing Sotheby’s to provide Struna with information about a Picasso sculpture, “Head of a Woman (Fernande)” (“the sculpture”), including the names of the buyer(s) and seller(s), provenance documents, and any documents showing where the sculpture was stored and who it was shipped to. Struna alleges that Renzo Leonardi (“Leonardi”), a professor of physics, claimed to be an expert artwork authenticator and materially misrepresented authenticity details about the sculpture and the existence of a third-party buyer. Struna claims that, unbeknownst to him, Leonardi and his family were the actual buyers and that Leonardi sold the sculpture during a private Sotheby’s sale at a far higher price than Struna received for it.
France | France’s highest court, the Cour de Cassation, has annulled the acquittal of the Wildenstein family and granted prosecutors’ request for a retrial. This is the third time the Wildenstein family, a well-known art-dealing dynasty, has had to respond to allegations of tax fraud. On January 6, 2021, the court ruled that the prosecution was not operating outside the statute of limitations in the original trial and that it was not clear whether reporting to the tax administration was legally required for assets placed in trusts. It will likely take a few months for the case to be restarted.
Japan | The Osaka High Court ruled in favor of artist Nobuki Yamamoto (“Yamamoto”), finding that his artwork — a telephone booth filled with goldfish — was protected by copyright law and ordering the infringers to pay Yamamoto 550,000 yen ($5,300) in damages. Fourteen years after Yamamoto’s work was unveiled, a cooperative merchant union and other entities similarly filled a phone booth with water and goldfish and displayed it as a tourist attraction. In 2019, the Nara District Court ruled that Yamamoto’s work was an idea and not an expression, denying it copyright protection. The Osaka High Court reversed that ruling and stated that the artistic decision to have air bubbles flow out of the phone receiver to mimic conversation was creative expression and entitled the work to protection under copyright law.
UK | Art galleries, among other businesses, are now eligible to receive financial support from insurers for coronavirus-related losses, according to a new Supreme Court ruling in the United Kingdom. Rudy Capildeo, who is a partner in Charles Russell Speechlys LLP, says that art businesses still have some cause for concern because the ruling did not specify how losses should be handled.
From the January 2021 Newsletter
Huntley et al. v. Buzzfeed, Inc. No. 1:20-cv-08844 (S.D.N.Y. filed Oct. 22, 2020). Six photojournalists are suing Buzzfeed, a news reporting and pop culture online publisher, for copyright infringement, after publishing an article that had their Instagram posts with their photographs embedded into the post. Each of the photojournalists took these photographs from the front lines of the George Floyd Protests that spread through the nation this past summer and they derive their income from licensing the rights to use these photographs. The complaint alleges that at no time did Buzzfeed seek a license for these photographs, besides offering Huntley $75 post-print. Instagram’s policy is that they can grant a sub-license to Buzzfeed, but that the embedded photograph is not to be licensed out. Instagram’s policy also stipulates that third parties need to have the applicable rights from the rights holders, including a license to share the content, which Buzzfeed did not do. Buzzfeed has subsequently taken down the embedded photos in the article, but only after they had been featured domestically and internationally for a significant period of time.
Boesen v. United Sports Publications LTD., No. 2:20-cv-01552 (E.D.N.Y Nov. 2, 2020). In a case reminiscent of the opposite SDNY rulings in the Sinclair and McGucken cases, the Eastern District dismissed a lawsuit for the unauthorized embedding of Instagram posts. Danish photographer Boesen sued a sports media website for the publishing of his photograph of Caroline Wozniacki by embedding the Instagram post into their website without asking for the artist’s permission. Judge Alynne Ross dismissed the case for copyright infringement based on the “fair use” of the photograph in news media.
People v. Sotheby’s, No. 452192/2020 (N.Y. Sup. Ct. filed Nov. 6, 2020). Sotheby’s is under investigation by the State of New York for allegedly helping a particular client avoid paying sales tax by providing false resale certificates for $27 million worth of art purchases. On December 18, 2020, the auction house moved to dismiss the case, arguing that the Office of the Attorney General had failed to plead (1) that Sotheby’s had an obligation to collect sales tax and pay that tax to the State, (2) that Sotheby’s knowingly filed false tax records, and (3) that Sotheby’s can be held vicariously liable for the acts of its employees.
Cohen et al. v. G&M Realty, L.P. et al., No. 13-cv-5612 and Castillo et al. v. G&M Realty, L.P. et al., No. 15-cv-3220 (E.D.N.Y. Nov. 25, 2020). After the 5pointz case was remanded back to the Eastern District of New York, from the Second Circuit, Judge Block has ruled in favor of the artists yet again. G&M Realty was ordered to pay an additional $2 million in attorney’s fees, following a settlement between the parties. Attorney’s fees are stipulated in the Visual Artists Rights Act as an outgrowth of the Copyright Act and are awarded at the Judge’s discretion after trial.
Oliver v. Meow Wolf Inc., No. 1:20-cv-00237 (D.N.M. filed Mar. 16, 2020). Artist Lauren Oliver made the sculpture Space Owl in 2006, the painted version of which caught the eye of Meow Wolf, a Sante Fe Art collective that has become an entertainment leader. In 2014, Oliver began crafting a science fiction narrative, “Ice Station Quellete (ISQ),” in which a fully realized Space Owl sculpture would be the centerpiece. Meow’s flagship project, “House of Eternal Return,” reached out to Oliver in 2015 to offer her the opportunity to become part of the company and in its share profits. The exhibit and Space Owl was a huge success for the Meow Wolf collective, who have made upwards of $158 million since its inception and turned themselves into a large media conglomerate. In her complaint filed in March 2020, Oliver alleges that she has only received $2,000 in profits and that Meow Wolf requested that she sign over all of her IP rights, or else she would be removed from the exhibit. Most recently, on November 25, 2020, Judge Kirtan Khalsa, denied Meow Wolf’s motion to dismiss and allowed the case to proceed.
Lew v. The City of Los Angeles et al., No. 2:20-cv-10948 (C.D. Cal. filed Dec. 2, 2020). Professional artist David Lew, also known as “Shark Toof,” is suing the Chinese American Museum (“CAM”), a tenant of the City of Los Angeles, for the destruction of his artwork after its exhibition at CAM. Lew created 88 original pieces of artwork that were placed on tote bags, which were to be hung outside CAM on clotheslines as performative art, and looked like a series of red lanterns, as part of an exhibition titled Year of the Shark Red Packet. Lew alleges in the complaint that, on December 7, 2018, Defendants sent trash removal crews in to remove and discard the original art, and put them in the trash, without any notice to Lew. Lew was horrified when he learned of his work being destroyed. The complaint also claims that curator of CAM, Justin Hoover, has admitted fault. The claims are grounded in The Visual Artists Rights Act for destruction of work of a “recognized stature.”
Kerson v. Vermont Law School, Inc., No. 2:20-cv-00202 (D. Vt. filed Dec. 2, 2020). Multi-disciplinary visual artist Samuel Kerson is suing the nonprofit that runs Vermont Law School because they have decided to paint over two murals that Kerson has done at the school. The school has chosen to have them painted over because students have filed complaints that the depiction of the Underground Railroad, in such a caricaturistic style, promoted stereotypes about black bodies. The mural painted in 1994, as stated in the complaint, depicts the history of slavery, which includes Vermont’s role in the Underground Railroad but also the capture and shipment of African Americans to the Americas. Kerson alleged that he was never even directly told of the school’s intent to tile over the mural and, after Kerson expressed his discontent, the school told Kerson that he had 90 days to take the murals down; however, the murals are painted on the sheetrock affixed to the building, so the only way to remove them would be to destroy them. Kerson’s claim is grounded in the Visual Artists Rights Act, as he claims that the murals achieved nationwide recognition.
Abbott Laboratories v. Feinberg, No. 1:18-cv-08468 (S.D.N.Y. Dec. 9, 2020). A longtime patron of the arts, Abbott Laboratories, has acquired a corporate collection of fine art which decorates the halls of Abbott’s headquarters. In early 2016, Abbott hired an expert art appraiser to assess and update the valuation of several pieces of art in its current collection for insurance purposes. Several months later, the appraiser returned a report to Abbott Laboratories, informing the corporation that one piece of art in particular was a deliberate forgery of their original oil painting, Marsden Hartley’s Maine Flowers (1936–37). An investigation revealed the painting to be in the possession of Carol Feinberg, who asserted that she purchased it in good faith from an art gallery in 1993. The parties disputed title and ownership of the painting, which the SDNY declared to be the property of Abbott Labs, who sufficiently convinced the court of their clear and superior title over the painting. Stay tuned for an article on the blog!
Levin v. The Ministry of Culture and Tourism, Republic of Turkey, No. 1:18-cv-01586 (S.D.N.Y. Dec. 10, 2020). The case of the ancient Roman marble statue of the goddess Cybele came to a conclusion this December: the artifact is back in Turkey and will be displayed at the Istanbul Archaeology Museums. In 2016, the statue was consigned to be sold at auction in New York with an export license showing that it has been moved from Turkey to Israel in the 1970s. Turkey promptly contacted the U.S. Department of Homeland Security to halt the sale. The complaint, filed by the consignor in February 2018, sought a declaratory judgment that Levin had proper title to the artifact and that Turkey had no ground to seek the forfeiture of the item. In December 2020, the parties settled and the statue was returned to Turkey.
10012 Holdings, Inc. v. Sentinel Insurance Company, Ltd., No. 1:20-cv-4471 (S.D.N.Y. Dec. 15, 2020). On December 15, 2020, the SNDY dismissed the Manhattan-based Guy Hepner Gallery’s claims for insurance coverage for losses suffered as a result of its suspension of operations due to the COVID-19 pandemic. The judge found that the insurance coverage was limited to physical harm and that the gallery failed to show damage to or loss of property, instead of loss of business.
JN Contemporary Art LLC v. Phillips Auctioneers LLC, No. 1:20-cv-04370 (S.D.N.Y. Dec. 17, 2020). In a case that is certain to set a precedent for art contracts and force majeure during the COVID-19 pandemic, the SDNY ruled on December 17, 2020 that Phillips auction house was right to terminate an auction guarantee for a $5 million painting by Rudolf Stingel, the sale of which had to be postponed due to the ongoing health crisis. The judge agreed with the auction house that the pandemic qualified as “circumstances beyond our or your reasonable control” and that, because the contract outlined force majeure as a reason to rescind the contract, the auction house was within its right to terminate it.
Meaders v. Helwaser, No. 20-730 (2d Cir. Dec. 23, 2020). Earlier this year, the SDNY ruled in favor of the Helwaser Gallery on summary judgment, in the estate dispute over the ownership and sale of a stabile by Alexander Calder. Plaintiff Phyliss Meaders alleged that Helwaser was insufficiently diligent when they acquired the work from Phyliss’s brother, and that they should have known that he was an alleged part-owner of the artwork and, therefore, did not have full authority to sell it without Phyliss’s permission. The lower court ruled that Phyliss had failed to present evidence from which a jury could conclude that she owned the sculpture at the time of the sale, which the Second Circuit court affirmed less than a year after the previous ruling.
France | Mwazulu Diyabanza, a Congolese restitution activist, has been sentenced after removing an object from a display case in the Louvre. Diyabanza reclaimed the item in an attempt to make a political statement calling attention to restitution issues, and has committed similar political acts across Europe. In his action at the Louvre on October 22, which was filmed and posted to Facebook, Diyabanza lifted a sculpture from its mount shortly before guards intervened. He was immediately arrested at the museum and jailed as he awaited trial. He has now been sentenced to a fine and a deferred prison term in Paris. Diyabanza claims his political acts cannot be considered theft because the items he chooses to make statements about are stolen property. Diyabanza faced charges for political acts at the Museum of African, Oceanic, and Amerindian Arts in Marseille and the Musée du quai Branly-Jacques Chirac in Paris as well. He plans to appeal the decision.
Netherlands | A court in Amsterdam ruled that a Wassily Kandinsky work can remain in the collection of the Stedelijk Museum, after heirs of the Jewish man to whom the piece belonged before WWII claimed they have a right to the painting. The piece went to auction during the Nazi occupation of the Netherlands, and sold for a third of what it would have after the war. The Dutch government’s Restitutions Committee rejected the heirs’ application in 2018, and the heirs then took the museum and city of Amsterdam to court. According to the heirs’ lawyer, Axel Hagedorn, several members of the committee have connections to the Stedelijk Museum, and he claims this resulted in a bias against the heirs. A judge declared the ruling as binding because the court could not find any evidence that the work was stolen, and it had not been sold under duress nor due to financial losses incurred by the Nazi occupation. Hagedorn says the heirs plan to appeal the ruling.