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Case Law Corner – 2021

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

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Last updated: Jan. 5, 2021.

From the January 2021 Newsletter

United States

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.

International

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.

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