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Art Law Blast [6.30.2017]

All's Fair in Art and Law

To help you plan your art law calendar, check out the full listing of and upcoming events on our radar.

* July 7, 2017 -- STUDIO VISIT: Conversation with Davide Cantoni on art and international copyright (DUMBO, Brooklyn, NY)

You say you like art and law? Brooklyn's got both, live. Do not miss the special studio visit and discussion with Davide Cantoni. Born in Italy, Davide he has lived and worked in NYC for the last 20 years. His artistic practice, which began in the late 1980s, has focused on the way our society presents images and how they are consumed. Cantoni’s particular interest is in relation to new imagery published in the New York Times. After the viewing, guests are invited to join in a lively discussion on topics of fair use and copyright law. 

* July 18, 2017 -- Art and insolvency seminar (Institute of Art and Law, London, UK)

What happens when an individual or a corporate entity holding an important art collection is faced with insolvency? Can the collection be protected – or even saved for the nation? Or must it be sold off and dispersed to satisfy the insolvent’s creditors? While situations of insolvency are never hoped for, it is always best to plan ahead for any eventuality, including the inability to pay one’s debts. This afternoon seminar will consider the basics of insolvency law and investigate how and when they will apply to collections of art or other cultural objects. The aim is to better understand how to manage such ‘worst case scenarios’ well in advance. 
* July 19 - 20, 2017  -- Meeting of the Cultural Property Advisory Committee  (Washington, DC)

The Cultural Property Advisory Committee is established pursuant to the 1983 Convention on Cultural Property Implementation Act  ("the Act") to advise the president (or his designee) on appropriate U.S. action in response to international requests for assistance in protecting foreign cultural heritage, pursuant to Article 9 of the 1970 UNESCO Convention. 

*The actual dates are subject to change. Official notifications are published in the Federal Register pursuant to 19 U.S.C. 2602(f)(1).
* July 31, 2017  -- NYCLA Panel on Art Law and Sales and Use Tax (NYC, NY)

Save the date for the next New York County Lawyers' Association Art Law Committee event on the subject of taxes and art sales. Details forthcoming.
* August 2017 -- Registration opens for the 9th Annual National Cultural Heritage Law Moot Court Competition (Chicago, IL)
Co-sponsored by the Lawyers' Committee for Cultural Heritage Preservation, the National Cultural Heritage Law Moot Court Competition is the only moot court competition in the world that focuses exclusively on cultural heritage law issues. The Competition provides students with the opportunity to advocate in the nuanced landscape of cultural heritage, which addresses our past and our identity, and which has frequently become the subject of contentious legal debates and policies. Oral arguments for the 2018 National Cultural Heritage Law Moot Court Competition will be held February 23-24, 2018. 
* Sept. 6, 2017 -- The Art Business Conference (London, UK)

From an overview of the art market in India and Brexit to UK private foundations and art handling logistics, the upcoming conference will explore numerous art business issues with participation from the market leaders and their attorneys. Speakers to include Pierre Valentin (Constantine Cannon), Craig Davies (Rawlinson & Hunter), Wendy Philips (Sotheby’s) and many others. 

NOTE:  Be sure to check out our calendar for more events!
Thanks to all attendees and participants of our June Art Law Mixer on"Estate Planning for Artists"!

We are looking for topics, speakers and venues for 2017-2018. Who's next?!

Photo by Luis Nieto Dickens |  VLANY.ORG
What's New:
Africa Accessioned: A representative of the Museums Association of Namibia was hosted by the Federal Foreign Office of Germany for a 10-day visit, including a tour of three German institutions that house objects taken from Namibia. Dr. Jeremy Silvester serves as the Chairperson of the ‘Africa Accessioned’ Working Group—established by the International Committee of Museums (ICOM) of Ethnography—which works to recover information about the cultural patrimony of objects seized and placed in European museums. The visit was concluded at a Munich conference dedicated to provenance research for museum acquisitions made in the wake of colonial regimes. (WR)
Burning bridges at both ends: High-profile art-dealing brothers, Ali and Hicham Aboutaam, who run (no pun) Phoenix Ancient Art gallery have been linked to international investigations regarding ISIS and trade in looted antiquities. Following with the early March arrest of Ali Aboutaam’s driver—who was found smuggling an ancient oil lamp with an unsatisfactory provenance through Switzerland—authorities in Belgium, France, and our very own U.S. Immigration and Customs Enforcement (ICE) have all focused on the Aboutaams’ business practices and continue to search for any connections between the other culprits of illegal antiquities removal and trafficking. Despite past accusations of the brothers’ bad faith and dealing concerning the antiquities they display and sell in their galleries and homes, a spokesperson for the Aboutaams suggested that the insufficient provenance of the ancient oil lamp was the consequence of a clerical error. As exotic and romantic as it may be to pun on the theme of ancient oil lamps and phoenixes rising out of the ashes, once a dealer's name is sullied with suspicions of trafficking in looted antiquities there is no way to put that genie back in the bottle (and neither is it possible to recover all the valuable historical evidence linking looted object and its place of origin). (WR)

Masterpiece for Justice  Prominent art collector Agnes Gund has earmarked 2/3 of the hammer price from the January 2017 sale of her 1962 Lichtenstein to start the new Art for Justice Fund. The work—“Masterpiece”—was sold for a record setting $150 million to Steven A. Cohen. Gund went on record to say that she always felt sensitive to inequality and concerned about the social injustice and racial inequality deeply ingrained in our country. Gund indicated that her inspiration for the Art for Justice Fund came in part from Ava DuVernay’s 2016 documentary film “13th” and Michelle Alexander’s 2010 book “The New Jim Crow: Mass Incarceration in the Age of Color Blindness.” The Art for Justice Fund will work to support criminal justice reform and reduce mass incarceration in the United States. (WR).

More MOU with Peru: Earlier in the month, the United States and Peru extended their Memorandum of Understanding (MOU), a bilateral agreement which places import restrictions on pre-Columbian archaeological artifacts and Colonial ethnographic material. The MOU was originally signed in 1997 and has previously received three five-year extensions. This newest extension through 2022 will expand its terms to include Colonial period documents and manuscripts. Since the initial signing 20 years ago, the U.S. has repatriated over 2,000 artifacts to Peru. Just this month, the U.S. government repatriated 75 archaeological objects and one Spanish Colonial painting to the Peruvian Embassy in Washington D.C. (SS)

Sammons says... Long-time force in the art world, the London-based dealer Timothy Sammons is scheduled to be extradited to the United States at the request of the New York County District Attorney’s Office. The plaintiffs—Sammons’ former clients, both buyers and sellers—allege that from 2010 to 2015, Sammons facilitated a Ponzi scheme and pocketed his clients’ profits from sales of their Picassos, Modiglianis, Chagalls and more. Speculators predict that Sammons could be in a U.S. court by the end of the month given that Sammons faces more than fourteen charges of grand larceny and one of scheming to defraud and that the UK District Judge has already signed off on the extradition. (WR)

That's Cool: Congress, ICE and ISIS On June 23rd, the House Financial Services’ Terrorism and Illicit Finance Sub-Committee held a hearing entitled “The Exploitation of Cultural Property: Examining Illicit Activity in the Antiquities and Art Trade”. The hearing focused on the looting, smuggling, and destruction of ancient artifacts by terrorist groups like Al-Qaeda and ISIS. Several expert witnesses, including a research associate at the Smithsonian Institution, the Deputy Assistant Secretary for Policy at the Bureau of Educational and Cultural Affairs, and the Assistant Director for International Operations within U.S. Immigration and Customs Enforcement (ICE) raised particular concern over the growing relationship between Western organized crime and terrorist-linked antiquities smuggling. While law enforcement officials continue to crack down on illegal markets, they also continue to struggle with the opaque nature of the art market and the difficulty of pursuing international investigations. (SS)
What's going on in the Hamptons?! Sag Harbor saga of Structure v. Sculpture lent itself to a lively art law discussion at the AC Institute on June 22. Special thanks to Adelaide Dunn for organizing the film screening and for moderating the discussion!
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Sotheby's Inc. v. R.W. Chandler, LLC et al., 1:16-cv-09043 (S.D.N.Y. 2016) In 2013, three New York art dealers arranged through Sotheby’s an $80 million private sale of "Salvator Mundi,” a rediscovered painting by Leonardo da Vinci. Shortly thereafter, they learned that the buyer, Swiss art dealer Yves Bouvier, resold the painting for $127.5 million to Russian art collector Dmitry Rybolovlev. The dealers, hoping to recover the difference, sought legal action against Sotheby's on the basis of fraud. Rybolovlev, represented by Daniel J. Kornstein, also reportedly questioned the role of Sotheby's in the valuation of the painting. The question at hand revolves around whether Sotheby’s representative Samuel Valette knew about Rybolovlev's interest in the artwork. The complaint alleged that weeks before the Sotheby's sale, a meeting was organized by Samuel Valette for inspection of the painting at a Central Park apartment owned by a Rybolovlev family trust.

Sotheby's (represented by Marcus Asner and Arnold & Porter) filed a preemptive lawsuit explaining that the discrepancy in prices represents a distinction between fair market values and retail replacement values for insurance purposes, which are typically higher. The case was dismissed with prejudice in February 2017. 

Complaint is available here

McKenzie et al v. Fishko et al, No. 1:12-cv-07297 (S.D.N.Y. 2015) Defendants' motions for summary judgment were granted in the case between Plaintiff, an art collector who alleged fraud and breach of contract, among other causes of action, against Defendants, Forum Gallery and its owners. According to the complaint, Forum Gallery was employed to represent Plaintiff and make purchases on his behalf. McKenzie "allege[d] that Defendants breached their obligations by manipulating or otherwise falsifying the prices to which the discounts were applied, thereby increasing Defendant's’ profits". However, McKenzie failed to allege sufficient facts in support of these claims. After the court granted Defendants’ motion for summary judgment on most claims, the case was voluntarily dismissed in 2015. Read Memorandum and Opinion and order here.
The State of Georgia v. William Lowe, d/b/a Lowe Galleries, Inc., The Lowe Gallery, or Bill Lowe Gallery, 123031191 (Ga. April 2017) Gallery owner Bill Lowe plead guilty to using money he should have paid to artists for his own needs. Lowe used the proceeds from consigned art sales for personal uses, such as making mortgage and property payments. The stolen funds amounted to over $500,000. In court, Lowe stated, “I acknowledge that artists relied upon me to receive payment from the proceeds of sales from the artwork.” He went on to say that he was “glad” to make the artists “whole again”. His sentence includes a ten-year probation to one count of felony theft by conversion, 750 hours of community service, and restitution to the amount of $256,514.92, which was placed in an escrow account to be paid out to the artists. Read Indictment here

MCH Swiss Exhibition Basel Ltd. et al v. Adidas America, Inc. et al, 1:17-cv-22002 (S.D.Fla. May 2017) Plaintiff Art Basel has filed suit against Adidas for trademark infringement concerning the use of their mark ART BASEL® on at least 1,000 pairs of sneakers. Adidas produced and distributed a high volume of the infringing sneakers during the annual art fair organized and marketed by plaintiff without asking for or receiving permission. Art Basel claims the infringement has damaged them by diminishing the value of their licensing partnerships as well as the value of their incontestable trademark, and that Adidas’ actions were intentional, committed with full knowledge of Art Basel’s rights. Plaintiff looks to recover injunctive relief, defendant’s profits, damages, and reasonable attorney’s fees. Complaint available here.

Crile v. Commissioner of Internal Revenue, 9713-10, 29044-11 (US Tax Court, 2 Oct. 2014) The United States Tax Court ruled that art-related expenses such as relevant travel, materials, and equipments, are tax-deductible as professional expenses. The IRS claimed that the artist and Hunter College professor Susan Crile owed $81,000 in unpaid taxes, arguing her art was "an activity not engaged in for profit."  This Tax Court's ruling reaffirmed the artist’s victory over the IRS by finding that she was in "the trade or business" of being an artist.. Read Memorandum of Fact and Opinion here.
For a full list of books and articles featured previously,
please visit our Publications page.*

Nicholas M. O'Donnell, A Tragic Fate: Law and Ethics in the Battle over Nazi-looted Art (Chicago: American Bar Association, 2017) In his first monograph, Nicholas O'Donnell, a partner at Sullivan & Worcester and the author of "Art Law Report" blog, explores the theme of Nazi-era stolen art, which "has proven to be an issue that simply will not go away." According to the publisher "[n]ewly found works of art pit survivors and their heirs against museums, foreign nations, and even their own family members. These stories are enduring because they speak to one of the core tragedies of the Nazi era: how a nation at the pinnacle of fine art and culture spawned a legalized culture of theft and plunder. A Tragic Fate is the first book to address comprehensively the legal and ethical rules that have dictated the results of restitution claims between competing claimants to the same works of art." Pre-order available here.

51ucd1LJQuL._SX329_BO1,204,203,200_.jpgFred Kline, Leonardo's Holy Child: The Discovery of a Leonardo Da Vinci Masterpiece: A Connoisseur's Search for Lost Art in America (Pegasus Books, 2016).
"La Bella Principessa," auctioned off in 2007 and  later attributed to DaVinci, is but one work that has been posthumously associated with the great master.  This book is about how “A single sketch becomes an all-consuming quest to understand and identify a work by Leonardo da Vinci himself―the first new drawing by the great master to have surfaced in over a century.” Available for purchase here.

Culture in Crisis: Preserving Cultural Heritage in Conflict Zones (Baltimore: Johns Hopkins School of Advanced International Studies, 2016).  Produced by The Antiquities Coalition in collaboration with the Johns Hopkins School of Advanced International Studies, this book features contributions from students in the conflict management program. Each student explored a specific topic related to looting, trafficking, and destruction of cultural heritage in Syria and Iraq. The result is an interdisciplinary look at a wide range of issues in the field from both an academic and practical perspective. Available here

Reynold Levy, They Told Me Not to Take That Job: Tumult, Betrayal, Heroics, and the transformation of Lincoln Center (PublicAffairs, 2015).
Former President of the Lincoln Center, Levy narrates his observations of the demise of the New York City Opera, the Metropolitan Opera's need to use as collateral its iconic Chagall tapestries and the New York Philharmonic's relations with Carnegie Hall. Levy, author of "Yours for the Asking" and many other publications on the subject of corporate philanthropy and the nonprofit management, left Lincoln Center in 2014. Available for purchase here.

Recent Articles:

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By Colby A. Meagle* Synergy is the sharing of talent and ideas, the combining of two or more minds in order to produce a product superior to anything one is capable of creating alone. Partnerships may look like a constructive arrangement, one where everyone benefits, and maybe that is the case at the beginning, but…Read more Post Co-Authorship and Past Congeniality: Creative Relationship Spoils Read in browser »

Bring Me the Head of King David: Questions of Attribution and the Responsibility of Museums

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Job Posting: Art Law Associate (NYC)

Cahill, Cossu, Noh & Robinson LLP (CCNR)  is seeking an Associate. CCNR is a boutique firm which provides a wide range of litigation and transactional services to its clients. The firm is best known for its focus on matters arising in the art world, in addition it represents variety of clients (including those in fashion…Read more Job Posting: Art Law Associate (NYC) Read in browser »

Case Review: Maestracci v. Helly Nahmad Gallery Inc. (2014)

By Madeleine Werker* At the core of Maestracci v. Helly Nahmad Gallery Inc., case filed in 2014 is the battle for ownership of an Amedeo Modigliani painting, Seated Man with a Cane (1918) (the “Painting”) valued at 25 million USD. The release of the Panama Papers in April 2016 revealed new information about the Painting,…Read more Case Review: Maestracci v. Helly Nahmad Gallery Inc. (2014) Read in browser »

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