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Case Law Corner – Archives 2022

Keeping track of lawsuits involving artworks, cultural property, artists’ estates, galleries, etc.

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Last updated: October 17, 2022.

From the October 2022 Newsletter

McGriff v. City of Miami Beach, No. 1:20-CV-22583, 2022 WL 949809 (S.D. Fla. Mar. 29, 2022)

A Florida district court judge ruled in favor of the City of Miami Beach, finding that the city had the right to censor a painting by Rodney “Rock” Jackson that depicted Raymond Herisse, a Haitian American man who was killed by Miami Beach police in 2011. The city commissioned the work for the 2019 “ReFrame Miami Beach” public art show but a day after the exhibition opened, the city demanded that the show’s organizers remove the artwork, prompting the Florida Chapter of the American Civil Liberties Union (ACLU) to get involved and bring forward a lawsuit against the city. Plaintiffs, which included the show’s curators, alleged that the city’s removal of the painting violated their First Amendment rights. However, the court ruled that the Plaintiffs’ First Amendment rights were not violated because the city’s decision constituted government speech, which is not regulated by the Free Speech Clause of the Constitution. Read the case HERE.

Sedlik v. Drachenberg, No. CV211102DSFMRWX, 2022 WL 2784818 (C.D. Cal. May 31, 2022)

Photographer Jeffrey B. Sedlik filed a lawsuit against celebrity tattoo artist Kat Von D, alleging that she infringed his copyright when she turned his photograph of world-famous musician Miles Davis into a tattoo. Von D argued that her use of the photograph constituted fair use of the copyrighted work. The district court judge  largely denied both parties’ motions for summary judgment and the case will now be brought before a jury. Jurors will have to decide whether the tattoo is protected by the doctrine of fair use and whether Von D’s use of the image denied the Sedlik a licensing opportunity. Read the complaint HERE

Hermes Int’l v. Rothschild, No. 22-CV-384 (JSR), 2022 WL 1564597 (S.D.N.Y. May 18, 2022)

Hermes filed a trademark infringement suit against Mason Rothschild for his MetaBirkins—NFTs which depict Hermes’ iconic Birkin bags covered in colorful fur. Rothschild filed a motion to dismiss the claim, arguing that his works are an artistic commentary and therefore, protected by the First Amendment. The court denied Rothschild’s motion for dismissal, finding that the complaint contained sufficient factual allegations that the MetaBirkins were explicitly misleading as to their source. Read the case HERE.

Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 142 S. Ct. 1412 (2022)

The Supreme Court will hear a copyright infringement lawsuit filed by photographer Lynn Goldsmith against the Andy Warhol Foundation. In 1984, Goldsmith granted a license to  Vanity Fair to provide her photograph of the pop star Prince to one of its  illustrators, for use as a reference. Vanity Fair commissioned Warhol for this project and, despite the license from Goldsmith only permitting him to create and publish one image, Warhol used Goldsmith’s  photograph to create sixteen works of art. Upon Goldsmith’s discovery of Warhol’s Prince series in 2016, the Warhol Foundation preemptively sued Goldsmith, arguing that Warhol had not committed copyright infringement and that the series was “fair use.” While the Warhol Foundation won in the Southern District Court of New York, upon appeal, the Second Circuit Court of Appeals ruled in favor of Goldsmith. The Warhol Foundation was granted writ of certiorari and the Supreme Court will review the case to determine whether a work of art that recognizably derives from another source is considered transformative, when it conveys a different meaning or message from the source material. Read the brief of amici curiae HERE.

Roberts v. Richard Beavers Gallery et al, no. 1:2022cv04516, (E.D.N.Y. August 1, 2022)

Artist Deborah Roberts is suing artist Lynthia Edwards; Richard Beavers Gallery; and the gallery’s owner, Richard Beavers, for willful copyright infringement. Roberts alleges that Edwards intentionally copied Robert’s style and confused potential buyers. Roberts claims that Edwards and the gallery prepared, reproduced, publicly displayed, advertised, and publicly distributed collages that were copied from and confusingly similar to her own collages. The complaint states that Roberts was contacted by Beavers in 2020 and asked to sell her work through his gallery due to popular demand from the gallery’s clients. Roberts declined the offer and that is when she alleges the defendants “aggressively marketed” Edwards’ collages which resembled hers. Edwards’ attorney’s letter to the court argues that “‘copyright does not protect styles, concepts, ideas, or artistic traditions.” Roberts is asking that all works by Edwards be destroyed, at the court’s direction. Read the case HERE.

Xiaoqian Gu v. Lehmann-Maupin LLC, 2022 N.Y. Slip Op. 31082 (N.Y. Sup. Ct. 2022)

Plaintiff, art dealer Xiaoqian Gu, brought a complaint against art gallery Lehmann-Maupin L.L.C. for breach of contract and later amended the complaint to also include defamation. Plaintiff claims that she purchased an artwork from the gallery in 2019 but the gallery did not deliver the artwork. The gallery confirmed their offer to the Plaintiff in writing by email and the Plaintiff responded in writing, accepting the offer. The gallery then sent an invoice to the Plaintiff and the Plaintiff wired the amount owed. However, two of the gallery’s most important clients were upset with the gallery about this sale. The gallery then informed the Plaintiff that it would not proceed with the sale agreement and reversed the wire. The Plaintiff claims that the gallery then contacted her employer, accusing her of trying to purchase the artwork in order to flip it. The Plaintiff argues that these false statements resulted in her losing her job and damaged her business and reputation. The gallery has denied the breach of contract allegations but admits that it did reverse the wire and that it contacted the Plaintiff’s employer. The gallery claims that the Plaintiff represented herself as a personal collector when she was in fact an art dealer working for another art gallery. Read the second amended complaint HERE.

From the September 2022 Newsletter

United States

LCX AG, v. John Does Nos. 1 – 25., Complaint No. 154644/2022 ( N.Y June 6, 2022) 

The New York Supreme Court allowed a court filing to be transmitted by a token on the Ethereum blockchain. The plaintiff, LCX AG, a virtual currency exchange based in Liechtenstein, brought an action for theft of virtual assets against 25 anonymous ‘John Doe’ defendants. The alleged theft resulted from a hack of one of the Plaintiff’s digital wallets, with the Defendants transferring out approximately US $8 million worth of virtual assets. They were able to trace $1.3 million to a wallet address on the Ethereum blockchain, but they could not identify the owner of the wallet. LCX sought an injunction to prevent that wallet address from conducting transactions. The court ordered that the wallet owner be notified “via a special-purpose Ethereum-based token” airdropped to the wallet address. Read the complaint HERE.

Artemus U.S. LLC v. Leila Taghinia-Milani Inc., No. 2022-00115 (N.Y. App. Div. Jan. 11, 2022)

The First Department affirmed the denial of defendants’ motion to dismiss the breach of contract claim brought by the owner of artwork who was not a party to the consignment agreement for lack of standing. The Court explained that defendants’ motion to dismiss Artemus’s claims was properly denied, as the plaintiffs alleged facts sufficient to permit an inference that plaintiff Edelman Arts, as consignor, was acting as the agent of the owners of the consigned artworks and thus that Artemus, as the owner of the subject artwork, has an interest in the agreement as a third-party beneficiary. Read the case HERE

People v. Sotheby’s, Inc., 2022 N.Y. Slip Op. 2501 (N.Y. App. Div. 2022)

Attorney General Letitia James’s office filed a complaint against Sotheby’s on November 6, 2021 accusing Sotheby’s of helping “wealthy clients evade taxes to boost its own sales.” The lawsuit detailed  Sotheby’s role in aiding a particular client to evade taxes by filing paperwork giving him benefits that are legally reserved for dealers and not private collectors.

The Attorney General’s office is now requesting for more documentation from Sotheby’s concerning high-level clients and specifically on the use of “resale” certificates, which generally help professional art dealers avoid paying New York sales tax on art they acquire during business dealings. Read the complaint HERE.

International

In the Case of James Fitton, Baghdad Court of Cassation (July 26, 2022)

An Iraqi court overturned the conviction and 15-year sentence handed to a 66-year-old British geologist, James Fitton, for antiquities smuggling, after taking pottery shards from an ancient site. Fitton had been charged under a 2002 Saddam Hussein-era statute against “intentionally taking or trying to take out of Iraq an antiquity,” the maximum penalty for which under the country’s legal code is death by hanging. While her father was detained in Iraq, Leila Fitton launched an online petition urging the Foreign Office, a diplomatic arm of the U.K. government, to step in. More than 120,000 people had signed the document by the trial. Since then, the number of signatories has eclipsed 300,000. The conviction has now been overturned by the Court of Cassation. Read more HERE.

D’Aloia v Person Unknown & Ors. [2022] EWHC 1723 (Ch)

The High Court of England and Wales allowed Fabrizio D’Aloia, founder of Italy-based online gambling company Microgame, to file a lawsuit against anonymous defendants  through a non-fungible token (NFT) drop. D’Aloia claimed to have been lured by an online brokerage into depositing about 2.1 million USDT (Tether) and 230,000 USDC (a digital stablecoin) into two wallets that turned out to be fraudulent. The court ruling allows D’Aloia to sue the people responsible for the fraudulent platform by sending the court documents through an NFT drop to the two wallets, despite the owners being unknown at this time. Binance, Poloniex, Gate.io, OKX and Bitkub have been identified by D’Aloia as holding his crypto. This is the first time in Europe that an NFT will be deployed to deliver legal proceedings. Read the judgment HERE.

From the August 2022 Newsletter

United States

Vincent Sicre de Fontdrune, et. al., v. Alan Wofsy, (Ct. App. 9th) (July 13, 2022) D.C. No. 5:13-cv-05957- EJD 

In the 1930’s, Christian Zervos, a photographer, created a catalogue raisonne of the works of Pablo Picasso. In 1979, Yves Sicre de Fontbrune acquired all of Zervos’ intellectual property rights, including those of the Zervos Catalog. In 1991, Alan Wofsy acquired permission from the estate of Pablo Picasso to publish a retrospective on Picasso’s works, The Picasso Project, which included reproductions of photographs from the Zervos Catalog. Sicre de Fontbrune then brought a copyright infringement suit in 1998 against Wofsy in the French courts, which determined that the Zervos photographs were subject to copyright protection and that Wofsy had violated those intellectual property rights. In 2011, Sicre de Fontbrune brought a new suit in a French court seeking to enforce the terms of the “astreinte” (a sanction that would entitle Sicre de Fontbrune to damages of 10,000 francs for each infraction of the prohibition against Wofsy’s use of the Zervos photographs) .Sicre de Fontbrune then brought a suit in Superior Court of California, Alameda County, to enforce the French judgment, and the district court dismissed the case;the Ninth Circuit reversed; and on remand, the district court granted summary judgment to Wofsy, determining that the astreinte was repugnant to the public policy of the United States and California that favors free expression. On appeal, the Ninth Circuit reversed the district court grant of summary judgment, finding that the reproductions of the photographs in The Picasso Project were not protected by fair use and that the French judgment of copyright infringement was not against public policy in the United States and California. Read the case HERE.

Estate of Henry Joseph Darger v. The Nathan and Kiyoko Lerner Foundation et al., No. 1:2022-cv-03911 (N.D III. Jul. 27, 2022)

Christen Sadowski, plaintiff and relative of artist Henry Darger, filed a lawsuit against the artist’s former Chicago landlords, Kiyoko Lerner and her late husband, Nathan Lerner, regarding the artwork Darger left behind and the copyrights therein. The lawsuit seeks to give the estate sole ownership of the copyrights inDarger’s works and the return to the estate of those works. The suit is also seeking any profits from the sale of the art and a list, from Lerner, of all of the Darger artwork in her possession. Read more HERE.

Hayden v. Koons, No. 21 CIV. 10249 (LGS), 2022 WL 2819364 (S.D.N.Y. Jul. 18, 2022)

Michael Hayden, an artist who worked in Italy, sued Jeff Koons, contemporary artist, after discovering one of his “Made in Heaven” works was used in photographs by Koons and mentioned in connection with Koons in an Italian news article. Hayden filed a suit against Koons in New York federal court for copyright infringement, publication of false copyright management information under the Digital Millennium Copyright Act (DMCA), and violation of the right of attribution under the Visual Artists Rights Act (VARA). Koons moved to dismiss the complaint on the pleadings, which the district court denied. In denying Koons’s  motion to dismiss, the district court rejected the argument that the sculpture was a useful article that was not subject to copyright protection and held that Koons’ fair use defense was not capable of determination on pleadings. Read the case HERE.

Pindell v. N’Namdi et al, 1:20-cv-00818-PGG (S.D.N.Y.)

Artist Howardena Pindell originally filed a lawsuit against her former gallery, G. R. N’Namdi Gallery, in 2020. Pindell claims that the gallery misled her about the sales of many of her works, in violation of Section 12.01 of the New York Arts and Cultural Affairs Law (NYACAL). Under NYACAL Section 12.01, an artist merchant shall act as an agent of the artist and is bound to the artist by a fiduciary duty. Pindell sought $500,000 in damages and the return of 20 works still in the gallery’s possession. Following extensive motion practice, including the submission of 126 documents to the court, the parties settled. Terms of the settlement were not made public. 

Mochary v. Bergstein, No. 21-1972 (2d Cir. 2022)

The suit centers around the ownership of a Jackson Pollock collage, which is part of the millions of dollars of disputed marital property in former state Sen. Alex Kasser’s contentious divorce. Bergstein claimed it was joint property of the marriage and its future ownership should be decided by a state divorce court. Kasser’s brother, Matthew Mochary, claimed the collage is his, a gift from his mother that he loaned to his sister and Bergstein to display in their home. When Bergstein refused to return the art, Mochary sued in federal court. The U.S. district court dismissed Mochary’s suit last year, ruling for Bergstein, who wanted to leave ownership to a property settlement in divorce court. This year, a federal appeals court in New York reversed the decision, such that  Mochary may renew his fight for the art in federal court as the divorce trial, now scheduled to start in October, plays out. Mochary claims in his suit that his parents bought the 16 x 21 inch mixed-media collage — valued at $175,000 — from Sotheby’s in 1978. Bergstein asserts that Mochary’s mother testified in a deposition that she gave the Pollock to her daughter and confirmed the gift on a tax return. What’s more, Bergstein claims his wife has listed the Pollock as personal property on three separate financial affidavits. Read the full case HERE.

Morford v. Cattelan, No. 1:21-cv-20039 (S.D. Fla. Apr. 8, 2022)

A federal court in Miami denied Italian artist Maurizio Cattelan’s motion to dismiss the litigation brought by American artist, Joe Morford, alleging that Cattelan’s “Comedian “infringes the copyright of his own work, “Banana & Orange”. Morford, who is representing himself, claimed that Cattelan plagiarized and inappropriately copied Banana & Orange, which Morford registered with the U.S. Copyright Office in 2000. The court concluded that, at this stage in the civil suit, Morford has “adequately alleged that Cattelan’s Comedian has a substantial similarity to […] elements of Banana & Orange.” Read the full case HERE.

United States

From the July 2022 Newsletter

McDuffie v. Texas Monthly, D-1-GN-22-002727, 2022 WL 2179959 (Tex. Dist) (Trial Pleading) 

“Remember the Alamo!” The Battle of the Alamo of 1836 was one of the most significant historical moments in the Texas Revolution. The lone star state and fellow Texans took pride in its symbolism for independence and freedom from Mexican ruler Santa Anna’s control. A keen collector of the Alamo artifacts, British drummer Phil Collins, donated his collections to the Texas General Land Office. Subsequently, the Collins collection became a part of future exhibitions in the redevelopment site of the Alamo (Battle of Texas museum). As part of redeveloping effort to popularize the historical site, Plaintiff Alexander McDuffie, an antique appraiser, and Joseph Musso, a historian/artist, contributed their expertise to authenticate the Collins collection. However, their narrated expertise published in a magazine article suggested factual “misrepresentations and misquotes,” which contradict McDuffie and Musso’s opinions on the authenticity of the Collins artifacts. Consequently, they sued the magazine publisher, Defendant Texas Monthly, and others for damages in their reputation to their antique authenticating business, salary loss, emotional distress, and other exemplary damages. 

Wicked Grips, L.L.C. v. Badaan, No. 8:21-CV-2131-KKM-SPF, 2022 WL 2238864 (M.D. Fla. Jun. 22, 2022)

The last few weeks in June were a darker time for many. While the Supreme Court expanded the right to carry firearms at home and publicly, one day before the majority overruled Roe, more handgun-related issues crept into the courtrooms, some even masquerading as art. For example, this copyright infringement case in Florida concerning customized gun grip designs got a partially favorable ruling for the Plaintiff’s claim. Plaintiff, Wicked Grips (“Wicked”) designs customizing handgun grips and accessories with images such as tarot cards, American flags, and spartan helmets. Wicked claims these seemingly cliché images to be original and has registered two of its designs with the U.S. Copyright Office. Defendants are vendors who fabricated Wicked’s copyrighted design, and sold their allegedly counterfeit products online. Wicked, in response, sued the Defendants on five counts arguing beyond the apparent copyright infringement. In sum, the court ruled that Wicked’s design satisfied the modicum of originality for copyright protection and ruled in favor of Wicked finding that Defendants had infringed its copyrights.

Yuga Labs, Inc., v. Ryder Ripps et al., No. 2:22-cv-04355 (Jun. 24, 2022)

In a complaint filed on Friday, June 24, Yuga Labs–the creator of the well-known “Bored Ape” NFT series and head of the Bored Ape Yacht Club (BAYC)–alleges that artist Ryder Ripps has infringed on the Club’s copyrighted Bored Ape NFTs. Yuga Labs alleges that, by minting and selling NFTs bearing the same and similar designs to the BAYC’s characteristic images, Ripps has been unjustly enriched, engaged in cybersquatting, and has swindled purchasers into buying fake Bored Ape NFTs. Rippshas described his work as fair use, asserting that it is a commentary on the racist implications of the Bored Ape line and his work references Bored Ape’s triviality. The artist has explained that each purchaser of his NFTs has signed a disclosure acknowledging the NFTs are “knock-offs.” The images of anthropomorphised monkeys have sold for millions of dollars and continue to be the hallmark of the NFT boom. This case is ongoing.

Magdalena Mollmann v. Zoetop Business Co., Ltd. d/b/a Shein and Shein Distribution Corporation, No. 2:2022-cv-04128 (Jun. 15, 2022).

Magdalena Mollmann, an artist known professionally as Maggie Stephenson, has filed suit against Shein and its entities for copyright infringement under Digital Millennium Copyright Act, alleging $100,000 in damages. Shein, an online Chinese-based fast fashion retailer, was selling an unauthorized print of Stephenson’s original artwork, “One is Good More is Better,” under the retail tag “Abstract Pattern Wall Painting Without Frame.” The print was available in two sizes for a mere $4 (her prints usually sell around $90. This is not the first time the fast-fashion retailer or manufacturer has been accused of copyright infringement of a visual artist, and even has a page on their website for copyright and other IP complaints to be submitted. The Defendant has waived service of summons and the case is ongoing.

Global Art Exhibitions, Inc. v. Kuhn & Bulow Italia Insurance Broker GmbH et al, No. 1:2020-cv-01395 (Feb. 18, 2022).

On February 18, 2022 Global Art Exhibitions, Inc. filed a complaint against five European insurance groups, ERGO, Mannheimer, Basler, Helvetia, and Gothaer, alleging over $107 million in damages. The claim arises from the seizure of twelve paintings by Italian master Amedeo Modigliani and French painter Moïse Kisling. The paintings, loaned by Global Art Exhibition to the Palazzo Ducale for their 2017 spring/summer exhibition, were subsequently confiscated by Italian authorities due to forgery suspicions. The works have yet to be returned or deemed counterfeit. Global Art Exhibitions is demanding that the defendant insurers pay out over $107 million dollars in damages, pursuant to a confiscation and artwork recovery clauses in their contract, in order for Plaintiff to continue to afford legal fees and recovery efforts. The case is being disputed in the Southern District of New York and the next conference is set for July 20, 2022. 

United States

From the June 2022 Newsletter

Djohan Stella v. Femme Assise, 1958, In Rem, No. L-001425-22 (N.J. Super. Ct. Law Div. filed June 8, 2022).

Stella Isabella Djohan filed a complaint in rem to interested parties on June 8, 2022 declaring her full right, title and interest in, and grant of replevin of Pablo Picasso’s Femme Assise (1958). Djohan, who has been the owner of this muted female nude since 1993, was introduced to Keating Pictures Limited (NKPL) in 2020 and the parties discussed  a potential sale. In 2021, the two parties moved forward with the agreement and the painting was moved from Singapore to a fine arts storage facility in New York. However, a series of late payments from NKPL and revised agreements ensued, ultimately leading to the termination of the agreement in April of 2022. But, before termination, the custody of Femme Assise had been transferred to an intermediary without Dhojan’s knowledge and contradictory to the agreement. Djohan has filed this complaint seeking the return of the painting to her possession, custody and control. 

Snyder et al. v. Adams et al. No. 1:22-cv-03873 (S.D.N.Y May 12, 2022).

Artists Kit-Yin Snyder and Richard Haas, residents of New York, filed a lawsuit against Eric Adams, in his capacity as Mayor, and the City of New York for violation of the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 160A, which protects visual artists’ “moral rights” and prohibits the destruction of “visual art.” In 2019, the NYC Council approved a plan which would replace the Manhattan Detention Complex with a new high rise detention facility. The destruction of the Manhattan Detention Complex to make way for its replacement subsequently calls for the removal and destruction of visual art by Snyder and Haas. The art, which includes Snyder’s Seven Columns of the Temple of Wisdom, Throne of Solomon, and paved stone work, as well as seven murals and two friezes by Haas, were all installed in 1992 as a homage to the neighborhood’s vibrant immigrant community. Snyder and Haas claim this plan will effectively “obliter[ate] the cultural value of the artwork.” Judge Lewis A. Kaplan initially granted a temporary injunction prohibiting the altering, defacing, modifying, mutilating, destroying, or demolishing of the artwork until and including May 18, 2022. After oral arguments on the [June?] 18th, Judge Kaplan found that Snyder and Haas failed to prove that the artworks’ conservation outweighed the public interest in constructing the high rise detention facility. The case is ongoing.

Emden v. Museum of Fine Arts, No. 4:21-CV-3348, 2022 BL 151076, 2022.

Us Dist Lexis 78851 (S.D. Tex. May 02, 2022). A mix-up of an authentic Bellotto and generic painting of similar style/reproduction in 1946 has led to legal troubles for the Museum of Fine Arts (MFA), Houston, almost 75 years later. Juan Carlos Emden, Nicolás Emden, and Michel Emden filed a lawsuit against the MFA on October 12, 2021 for the recovery of “The Marketplace at Pirna” by Bernardo Bellotto. The painting in question is believed to have been sold by the plaintiff’s grandfather, Dr. Max Edmen, “under Nazi-orchestrated economic duress,” to a Nazi art dealer Karl Haberstock, who in turn sold it to the Reich Chancellery, at a price below market value. Plaintiffs and Defendant disagree about the circumstances surrounding the sale, specifically Dr. Emden’s financial situation and whether or not the sale was voluntary. When the “Monuments Men,” well known for the return and preservation of looted objects, stepped in to assist in the return of a painting to Dutch officials in 1946, a clerical error ensued.  The work was labeled   “The Marketplace at Pirna” by Bellotto when, in reality, the painting in question was a near-identical titled “After Bellotto.” The Monuments Men and Women returned the Bellotto painting, not realizing their mistake until the Dutch government had given “The Marketplace at Pirna” to a German art dealer, Hugo Moser, in 1949. Three years later, Moser sold the painting to an American collector who placed the painting on long-term loan with the MFA. The plaintiff’s case hinges on the question of Moser’s ownership of the work.  Although two other of Dr. Edmen’s original Bellottos had been returned to the heirs in 2019, Judge Keith P. Ellison decided on May 2, 2022, that the painting shall stay with the MFA, citing a technicality under the Act of State doctrine that the court must uphold the decisions of foreign sovereign governments. 

Art Works Inc. v. Al-Hadid, No. 651267, 2021, 2022 NYLJ LEXIS 489

This case concerns the ownership of a bronze sculpture created by Defendant artist Diana Al-Hadid. Ownership of the work is contested by Plaintiff, the owner of the Marianne Boesky Gallery. The gallery claims that it proffered funds to Defendant for production of the work, as part of the parties’ alleged  agreement that the proceeds from the sale of the work would be divided amongst the (Defendant) artist, the (Plaintiff) gallery, and the fabricator. Plaintiff, after purchasing the fabricator’s interest in the sculpture, maintains that it owns a two-thirds share of the eventual proceeds from the work. Presiding Judge Louis Nock disagreed. The court explained that plaintiff’s ability to receive partial proceeds from the sale of Defendant’s work was, according to the “undated contract,” conditional on the sale of said work during the consignment period; this did not occur. The court granted Defendant’s motion to dismiss the complaint. In its opinion, the court clarified that the written agreement between the artist and the gallery contained no language evincing joint ownership of the work. Consignment agreements are not ownership interests, the court stated. Al-Hadid, as the original author, retains full ownership of the sculpture. In a subsequent statement to ARTnews by Plaintiff’s counsel, the Marianne Boesky Gallery expressed that it will appeal the court’s decision because it believes that disallowing ownership to the gallery is not only unjust but also “punishes the gallery for being supportive of the artist when the artist could not afford to fabricate the sculpture.” The gallery maintains that the court’s decision does not reflect the agreement that [it] reached with Al-Hadid.

Dr. Eliiot McGucken v. Kantor Gallery, et al., No. 2:21-cv-04593-DMG-AS.

Plaintiff Elliot McGucken brings this action against the Kantor Gallery, Kenny Schachter, and ART.SY, Inc. for copyright infringement based upon a photographic work registered by the  Defendant in 2013, along with 102 other photos. The works are akin to stock photos of sunsets, landscapes, and naturescapes. This action by Plaintiff addresses an allegedly derivative work by Defendant Schachter that was exhibited by Defendant Kantor Gallery and reproduced on Defendant ART.SY’s webpage. Described by Defendant Schachter in a social media post as a “calculated fishing [sic] expedition,” suits by Plaintiff regarding his generic, copyrighted photos are egregiously common. These cases are so common, in fact, that Vondran Legal–counsel for Plaintiff McGucken– displays a “Frequently Asked Questions” page which addresses eleven common questions that current and future Defendants may have. The tenth FAQ states, “what forms of payment do you take [to settle a claim]?” It seems clear that the goal of such cases brought by this Plaintiff  has less to do with artistic integrity and all to do with the answer to question number ten: certified checks and wire transfers.

Klauber Brothers, Inc. v. Urban Outfitters, Inc., No. 1:21-CV-4526-GHW, 2022 WL 1539905

Plaintiff Klauber Brothers sued Defendants Urban Outfitters, Inc., Anthropologie, Inc., and URBN US Retail LLC  for infringing its original lace design (lace straps with stems, leaves, flora, and H-shaped patterns) and using such design on Defendant’s “Fleur” and “Nouvelle Fleur” dresses without permission. Plaintiff sued under the Copyright Act of 1976. Defendant moved to dismiss. The Court concluded that Plaintiff has sufficiently demonstrated copyright infringement and substantial similarity of Defendant’s Nouvelle Fleur dress. However, regarding the Fleur dress, the Court did not find Plaintiff’s evidence adequate to defeat Defendant’s counterclaim; therefore, the Court granted Defendant’s motion to dismiss in part.

United States v. Inigo Philbrick, No. 20 Cr. 00351 (S.D.N.Y.)

Defendant Inigo Philbrick is an established art dealer, founder of Inigo Philbrick, Ltd., and owner of various galleries in the U.S. and the U.K. Philbrick forged false provenance documentation regarding the authenticity, value, and ownership of multiple artworks in the last decade. His fraud scheme included 29 works of art, from which Inigo profited $86.43 million in total. For example, the works he fraudulently misrepresented include Jean-Michel Basquiat’s 1982 “Humidity” painting, Christopher Wool’s 2010 painting “Untitled,” Rudolf Stingel’s 2012 portrait of Picasso, and Donald Judd’s 2018 minimalist sculpture “Untitled.” On November 19, 2021, Philbrick pleaded guilty and was sentenced to 7 years in prison on May 23, 2022. The Court also  ordered Philbrick to pay $86,672,790 in forfeiture, pursuant to his plea agreement.

United States

From the May 2022 Newsletter

Berlin Regional Court, Martin Eder v. Daniel Conway, decision no. 15 O 551/19 (March 2022)

In a landmark ruling on the pastiche copyright exemption, the Berlin Regional Court upheld the constitutionally protected Freedom of the Arts as guaranteed under both the EU Charter of Fundamental Rights and the German Constitution. In its judgment, the Berlin Regional Court ruled that the reference to a pre-existing digital work by means of collage-like integration into a new painted work by Martin Eder is fully permissible as a so-called “pastiche” and does not constitute a copyright infringement of such pre-existing work. The Regional Court of Berlin emphasized the importance of the pastiche copyright exemption in the context of the artistic dialogue with digital artworks within “analog” art, such as the painting in question. Read more here.

Pivar v. The Van Gogh Museum, No. 21 Civ. 09362 (LLS) (S.D.N.Y. Mar. 25, 2022)

A New York art collector, Stuat Pivar, sued The Van Gogh Museum over its refusal to authenticate a painting Pivar said would be worth $300 million. The suit stated that Pivar purchased a Vincent van Gogh painting titled “Auvers, 1890” in March 2021 and submitted an authentication request to The Van Gogh Museum in May. He sent pictures of the painting via email. The Museum reviewed photographs and documents regarding the painting and sent Pivar a report opining that the painting was not painted by Van Gogh and stating that the Museum did not believe an inspection of the painting itself was necessary. Pivar then brought suit in the New York State court, alleging a breach of a contractual obligation, and negligence, and demanding more than $300 million in damages. The Museum removed the case to federal court and moved to dismiss, arguing that the court should enforce the choice of forum clause and that the court lacked personal jurisdiction. The court granted the motion to dismiss, relying on the choice of forum argument alone and not considering the jurisdictional point. Read the opinion here.

Cassirer v. Thyssen-Bornemisza Collection Foundation, No. 20–1566. (April 21, 2022)

The United States Supreme Court unanimously ruled that an appeals court had wrongly applied Spanish law in a dispute between the heirs of Lilly Cassirer, who fled Nazi Germany in 1939, and a Spanish museum over the ownership of a painting of a Paris streetscape, “Rue Saint-Honoré Après-midi, Effet de Pluie” (“Rue Saint-Honoré in the Afternoon, Effect of Rain”) by Camille Pissarro. Ms. Cassirer surrendered the painting to the Nazis to obtain an exit visa, and she and her family were not able to locate it after the war. After she was declared the painting’s rightful owner in 1958, Germany paid her compensation of about $250,000 in today’s dollars. The painting eventually turned up in a Spanish museum, a government institution. It is now thought to be worth tens of millions of dollars. Read the opinion here.

Chris A. Williams v. Hy-Vee, Inc. et al, No. 2:19-CV-06671 (C.D Cal. May 15, 2022)

Experimental artist Chris Williams recently sued the supermarket chain Hy-Vee for copyright infringement when he learned that a mural he had painted in the Des Moines, Iowa neighborhood of Riverbend was visible in the background of a 2019 Super Bowl commercial that also featured Oprah. Williams claimed that no one sought his permission for the use of his mural, which is featured quite prominently in the nearly four-minute spot. The mural that’s seen in the ad consists of large, colorful, geometric shapes and was painted by Williams, who claims in court papers to own “the copyright and moral rights” to the artwork, as well as the “exclusive right to monetize his work.” Read the proceedings here.

United States

From the April 2022 Newsletter

O’Neil v. Ratajkowski, No. 19 CIV. 9769 (AT), 2021 WL 4443259 (S.D.N.Y. Sept. 28, 2021)On October 23, 2019, Plaintiff photographer brought action against Emily Ratajkowski and her limited liability company (LLC) for infringement of photographer’s copyrighted photograph. On September 13, 2019, Plaintiff photographed Ratajkowski outside of the Adore Flower Shop in downtown Manhattan. He took nine frames in rapid succession, including the photograph at issue here (the “Photograph”), which depicts Ratajkowski on the street, with her face covered by the bouquet of flowers she pulled in front of her face (an action Plaintiff interprets as her hiding from paparazzi photographers). Plaintiff then uploaded the Photograph to Splash News (“Splash”), Plaintiff’s agency. Splash posts Plaintiff’s photographs online for licensing to its subscribers, in exchange for 40 percent of any license fees. Plaintiff made minimal, if any, income from the Photograph. Plaintiff states he also sent the Photograph to his attorney, who then registered it, along with 747 other photographs, with the United States Copyright Office ; his counsel states that this resulted in Plaintiff’s registered copyright number  VA 2-173-330 . The parties just recently reached a settlement. Read the prior proceedings here.

Lee v. POW! Ent., Inc., 468 F. Supp. 3d 1220 (C.D. Cal. 2020), aff’d in part, rev’d in part sub nom. Lee v. Pow Ent., Inc., No. 20-55928, 2021 WL 5768462 (9th Cir. Dec. 6, 2021): JC Lee is the daughter and trustee for the estate of comic book author Stan Lee. Stan Lee is responsible for co-creating comic book characters such as Spider-Man, the X-Men, Iron Man, and many others. POW, a Delaware corporation, claims that Stan Lee assigned to it the rights to his intellectual property. On February 14, 2020, JC Lee filed her First Amended Complaint against POW seeking to enforce the terms of an agreement made in 1998 (the “1998 Agreement”) between Stan Lee and Stan Lee Entertainment, Inc. (“SLEI”). JC Lee contends that, under the terms of the 1998 Agreement, Stan Lee assigned full and complete title to his name, likeness, and creator rights to SLEI in perpetuity. JC Lee sought declaratory and injunctive relief that SLEI owns the rights to Stan Lee’s intellectual property, name, and likeness, and asserts a cause of action against POW for cybersquatting in violation of 15 U.S.C. § 1125(d); POW sought sanctions against JC Lee on the grounds that her complaint is both frivolous and brought for an improper purpose. The court decided in favor of POW finding that there were several previous attempts at re-litigating a series of similar cases in 2010, 2012 and 2013, with the court in each decision determining that the claims were barred by claim preclusion. The Court granted POW’s Motion to Dismiss with prejudice and sanctioned JC Lee in the amount of one million dollars, also holding her attorneys jointly liable for twenty-five percent of the amount, or $250,000. The court further stated that Stan Lee, “a superhero in his own right, served to inspire the everyday hero” and urged the parties to “treat his legacy with respect and cease engaging in meritless litigation.” Read the most recent decision here.

McGucken v. Newsweek LLC, No. 19 CIV. 9617 (KPF), 2022 WL 836786 (S.D.N.Y. Mar. 21, 2022): Plaintiff Elliot McGucken is a fine art photographer based in Los Angeles, California. In March 2019, Plaintiff visited Death Valley National Park to take photographs. During that trip, Plaintiff photographed a rare ephemeral lake that appeared in the park and subsequently shared that photograph on Instagram. Defendant Newsweek published an article about the ephemeral lake, and embedded in the article the photograph that Plaintiff had posted on Instagram. Thereafter, Plaintiff brought this action for copyright infringement, alleging that Defendant had reproduced and displayed his photograph on its website without his consent. Read the opinion here.

Cruz v. Cox Media Grp., LLC, 444 F. Supp. 3d 457 (E.D.N.Y. 2020): Amateur photographer brought copyright infringement action against media company for its use of photograph of law enforcement officers arresting terror suspect. Parties filed cross motions for partial summary judgment. Read the memorandum and order here.

SA Music LLC v. Apple, Inc., No. 3:20-CV-02146-WHO, 2022 WL 836304, at *2 (N.D. Cal. Mar. 21, 2022): Defendant Apple, Inc. (“Apple”) owns and operates the iTunes Store, an online digital music store with millions of recordings. The plaintiffs in these three related suits own (or claim to own) the rights to 101 musical compositions by eminent songwriters. They allege that serial copyright infringers—that is, “pirates”—uploaded recordings of those compositions to the iTunes Store without the right to do so. Those serial infringers’ business model, the plaintiffs say, is to illicitly upload numerous recordings to digital stores and remove, or acquiesce to removal of, the compositions if there is an assertion of rights by another party. These motions, however, do not concern those alleged infringers’ liability, they concern the scope of Apple’s liability for hosting the allegedly infringing recordings on the iTunes Store. Read the most recent order here.

United States

From the March 2022 Newsletter

Artemus USA LLC v. Leila Taghinia-Milani Inc., 201 A.D.3d 456, 156 N.Y.S.3d 846 (2022) (Filed 2/19/2020)

Defendants’ alleged delay in returning the subject consigned artwork did not constitute a breach of the consignment agreement, given that there was no contractual date for the artwork’s return, emails between the parties reflect that the return was the subject of ongoing discussion, and plaintiffs accepted the shipment upon its return. Read more about the case here.

Berg v. kingdom of Netherlands, 24 F.4th 987 (4th Cir. 2022) (Filed 11/19/2018)

Bruce Berg, a resident of South Carolina, brought suit for recovery of paintings and other works of art taken under duress by the Nazis following the German invasion of the Netherlands in 1940.Berg brought suit in the District of South Carolina against the Kingdom of the Netherlands; Ministry of Education, Culture & Science of the Netherlands (“Ministry”); Cultural Heritage Agency of the Netherlands (“RCE”); and several private and public municipal museums in the Netherlands holding the artworks. Claiming ownership of the artworks, Berg brought claims for declaratory judgment, conversion, unjust enrichment, and constructive trust, arising from the alleged taking and retention of the artworks in violation of international law. Read more about the case here.

Gayle v. Allee, No. 18 CIV. 3774 (JPC), 2021 WL 120063, at *1 (S.D.N.Y. Jan. 13, 2021)

This case is one of several lawsuits Itoffee R. Gayle, proceeding pro se, has brought in this District alleging violations of his asserted intellectual property for the phrase “Art We All.” At issue are Gayle’s claims of trademark and copyright infringement against photographer David Allee and the Morgan Lehman Gallery (collectively, “Defendants”) for exhibiting and offering for sale a photograph that depicted graffiti tagged with the words “ART WE ALL ONE” and for similarly titling that photograph “Art We All One.” Dkt. 55 (“Amended Complaint” or “Am. Compl.”). Defendants have moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkts. 56, 57 (“Motion to Dismiss.”). Read more about the case here.

Hosp. Int’l, Inc. v. Lake Erie Lodge, Inc., No. CV 21-305, 2022 WL 267364, at *1 (W.D. Pa. Jan. 27, 2022)

Plaintiffs Hospitality International, Inc. and Red Carpet Inns International, Inc., brought the trademark infringement and unfair competition action against Defendant Lake Erie Lodge, Inc., a former Red Carpet Inn franchisee, and its Guarantor, Hassan “Harry” Muhammed, after Defendants’ franchise agreement with Plaintiffs (“Franchise Agreement”) was terminated because Defendants failed to fulfill their contractual obligations. After the termination of the Franchise Agreement and following a monetary judgment against Defendants from another court, Defendants continued to use the Red Carpet Inn trademarks. Read more about the case here.

Johannsongs-Publ’g, Ltd. v. Lovland, No. 20-55552, 2021 WL 5564626 (9th Cir. Nov. 29, 2021)

Johannsongs-Publishing, Ltd. holds the copyright to the musical composition of the 1977 Icelandic song Söknuður. It alleges that You Raise Me Up, a song composed by Rolf Løvland in 2001 and popularized by Josh Groban in 2003, infringes on its copyright. The district court granted Defendants’ motion for summary judgment and denied Defendants’ motion for attorney’s fees under 17 U.S.C. § 505. Read more about the case here.

Zahedi v. Miramax, LLC, No. CV 20-4512-DMG (EX), 2021 WL 4497211 (C.D. Cal. Jan. 7, 2021)

Plaintiff claims that he created a photograph that depicts actress Uma Thurman in the role of Mia Wallace for the film Pulp Fiction (the “Photograph”). FAC at 3.2 Plaintiff registered the Photograph with the United States Copyright Office on November 25, 2019 with the registration number VA0002195675 and asserts that he still retains exclusive ownership of the copyright to the Photograph. Id. at ¶ 34, Ex. A. According to the U.S. Copyright Office’s catalog, the Photograph was created in 1994 and was published on September 23, 1994. Request for Judicial Notice (“RJN”), Ex. 1 [Doc. # 30-1].3 Plaintiff alleges that Miramax entered into unauthorized licenses with each of the other Defendants and other entities, and that all Defendants “licensed, created, distributed, marketed and sold” products that depict the Photograph without Plaintiff’s authorization or consent. Id. at ¶¶ 36-38, 41, 47-48. Read more about the case here.

United States

From the February 2022 Newsletter

Morgan Art Foundation v. Michael McKenzieNo. 1:18-cv-04438-AT-BCM (S.D.N.& filed Dec. 10, 2021). 

ArtNet reported that the Morgan Art Foundation (MAF) filed an “explosive memorandum” last December in its lawsuit against publisher McKenzie. Magistrate Judge Barbara Moses calendared a 2-½ hour March 1 hearing. “Given the gravity of the allegations made by MAF,” Judge Moses writes, “the Court will permit live testimony as requested by defendant McKenzie, including equal time for cross-examination by MAF.” Read the December memo here. Read Judge Moses’s order here

Free Holdings Inc. v. Keven McCoy, Sotheby’s et alNo. 1:22-cv-00881-LGS (S.D.N.Y. filed Feb. 1, 2022). 

In a case that could shape how the law applies to NFTs, ArtNet reports that a holding company claiming true ownership of Kevin McCoy’s Quantum (2014), auctioned by Sotheby’s last year, has sued the auction house and artist. In its heated complaint (which you can read here), the plaintiff accuses McCoy and Sotheby’s of “concerted efforts . . . to establish a false narrative concerning what is presumed to be the first NFT” and features numerous screenshots, including at least one Elmo meme. Read about the suit here

Hayden v. Koons, 1:21-cv-10249-LGS (S.D.N.Y. filed Dec. 2, 2021).

In a case that has copyright nerds taking cold showers, the sculptor behind a serpent-wrapped sex stage has sued artist Jeff Koons for infringement. Koons used the platform, originally made for Italian adult-film star and politician Cicciolina (Ilona Staller),  in his 1989 “Made in Heaven” series. Koons is no stranger to litigation and even cites two prior lawsuits in his February 4 motion to dismiss, which you can read here. Originally reported by Reuters

Korsen v. Volkswagen et al., 2:21-cv-08893-DMG-SK (C.D.Ca. filed Nov 11, 2021). 

Artist Jennifer Korsen sued Volkswagen and Marvel Entertainment last November for copyright infringement, among other claims. Volkswagen, which owns Audi, produced an Audi commercial in partnership with Marvel for its movie Avengers: Endgame, in which mural art by Korsen appears in the background. The parties settled quickly and the case was dismissed with prejudice on February 4, 2022. You can read the complaint here. No answers were ever filed.  

Higgins v. GladstoneNo. 150934/2022 (Sup. Ct. N.Y. filed Jan. 31, 2022).

Nate Freeman reports for Vanity Fair that former Gladstone Gallery employee Laura Higgins has sued the gallery, its owner, Barbara Gladstone, and its manager, Max Falkenstein, for a litany of complaints, including retaliation, intentional infliction of emotional distress, defamation, and assault. As Freeman points out, art litigation is commonplace, but “[i]t’s much rarer to see low-level employees looking for legal redress from name-brand employers.” The case has divided the New York gallery community. You can read the complaint here.

Concannon v. Lego Systems, No. 3:21-cv-01678-JBA (Dis. of Conn. filed Dec. 17, 2021).

The Fashion Law Blog reported last month that artist and designer James Concannon is suing Lego for copyright infringement. When Lego released its Queer Eye set last year, the Antoni Porowski figurine included a bodice that mimicked a custom leather jacket designed for Porowski by Concannon. Concannon accuses Lego of “blatant disregard for his intellectual property rights and . . . willful infringement.” Read the complaint here.

United States

From the January 2022 Newsletter

Spencer Elden v. Nirvana, L.L.C., et al., No. 2:21-cv-06836 (C.D Cal. 2021) (Jan. 3, 2022) 

The plaintiff, Spencer Elden, earlier sued the band Nirvana, for use of Elden’s baby photo for their album cover. Elden argued that it constituted commercial child sexual exploitation. The judge, Fernando Olguin, dismissed the case on something of a technicality: Elden’s legal team had failed to meet a deadline to respond to Nirvana’s motion to dismiss. But Olguin extended the deadline to January 13, 2022, to refile the motion. Nirvana’s team, meanwhile, retains their position that the suit has no merit. Read the order here.

Anonymous 1 v. Anonymous 3, Slip Op 51078 (U) [68 Misc. 3d 1226 (A)] (N.Y Aug. 7, 2020) 

Libra Max previously sued Barbara Lissner to end guardianship of her father, Peter Max, an iconic psychedelic artist of the ‘60s and ‘70s. Peter has been under guardianship since December 2016. All his affairs, whether personal, financial, or legal, are controlled by “court appointed strangers.” Lissner has now sued back, alleging that Libra Max’s legal and public relations campaign defamed her. Read the opinion here.

Fenwick v. Sotheby’s, No. 2:21-cv-11987 (D.N.J May, 2021)

The lawsuit alleges that Sotheby’s denied full time employees their benefits by misidentifying them as freelancers; additionally, Fenwick, a former employee, is claiming that Sotheby’s didn’t pay him in a timely manner and that the auction house violated the Freelance Isn’t Free Act. The legal team for Sotheby’s filed a motion to dismiss the case in November 2021, claiming that it was “so devoid of factual allegations…it was difficult (if not impossible) to discern.” Read the complaint and motion to dismiss here

Michael Xufu Huang v. Federico Castro Debernardi, No. 005156-CA-01 (M.D Mar. 3, 2021) 

In a lawsuit filed in March 2021 in a Miami-Dade County circuit court, collector Michael Xufu Huang alleged that collector Federico Castro Debernardi violated the terms of a sales agreement involving the sale of a $700,000 Cecily Brown painting. Huang was seeking $1.3 million in “reputational damages” from Debernardi. The case has now been settled out of court. Access a copy of the lawsuit here.

International

UK | R v. Graham et. al., Bristol’s Magistrate Court (Jan. 5, 2022). The ‘Colston Four,’ a group of activists, who toppled a statue of a 17th-century slave trader, Edward Colston in the U.K, have been cleared of criminal charges. Public support for the statue’s removal was a key element in the defense’s case. Lawyers argued the statue was offensive and needed to go, and that the Colston Four had not committed a criminal offense by taking the matter into their own hands. Banksy helped fundraise for the activists’ legal defense and after a two-week trial, a jury found them not guilty of causing criminal damage. Bail was granted and they are next due to appear at Bristol Crown Court on 8 February. Read more here.