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Art Law Blast [12.31.2017]

Before 2018...

To all fellow art law friends and fans,

THANK YOU for your interest and support this year. As you may know, the Center for Art Law has been operating as a not-for-profit initiative since 2012. We are proud to announce that starting in 2018, we will continue our work as a 501(c)(3) not-for-profit educational and research organization

We are grateful for the amazing dedication of our content contributors, editors, interns, and subscribers and the involvement from each of you as we explore the two intersecting worlds of art and law. In order to help fund our business development and website redesign needs, we are asking for each of you to take a moment to make your year-end tax-deductible contribution to help us. 

With best wishes for 2018, 
Irina Tarsis,
Founding Director

What's New:

Looking back, looking forward: What a year! Center for Art Law has accomplished much this year and has witnessed immense growth in talent and membership. Together with our most talented and dedicated student interns, we partnered with multiple New York City schools and arts organizations, and presented well-received public programs and publications dealing with property disputes, copyright, estate planning for artists and immigration law. Our publications have ranged in scope and geography from France to Cuba, and from street art to tax issues. We welcomed students from ten different schools located in California, New York and in between. Let's do it again but better in 2018!

In the coming months, the Center for Art Law is looking to form an advisory board and begin expanding the team from 99% volunteer-based to partially staffed with compensated members. There is much to be said for organizational and talent sustainability and we are ready to tackle these themes. Are you with us? We thank you for your support this year and invite you to make a year-end contribution here

Moving marbles: In a repatriation ceremony earlier this month, three artifacts from Lebanon were returned by the Manhattan District Attorney's Office to the Lebanese Consul General. Given that New York remains a magnate, if not a hotbed for looted antiquities, to do more to combat this pattern, a new task force, called the Antiquities Trafficking Unit, has been created to recover other illicitly traded works. Assistant district attorney Matthew Bogdanos is heading the new unit. 

Shall art stay or shall art go: The Massachusetts Appeals Court denied Berkshire Museum's motion to expedite litigation over the Museum's plans to deaccession art for sale. In a story that can only be described as "if art stays there will be trouble but if goes there will be double." Earlier in the year, the Museum Board determined to sell a few dozen works from the collection to raise funds for the endowment. Following opposition from the members of the community and family members of donors and artists, the Massachusetts Attorney General filed claims against the Museum and its Board seeking to stop the sales. The injunction blocking the sale has been extended from December 11, 2017 to January 29, 2018. 

It takes a dorf: Dusseldorf exhibition dedicated to the life and work of a famous Jewish art dealer, Max Stern, who was forced to sell his art collection by the Nazis and who fled Germany in 1938 for Canada had been cancelled to much criticism and chagrin. The Stern Foundation, operating out of Montreal has long been working on locating and restituting Stern artworks. Supposedly the decision to cancel the German part of the exhibition was made by the city Mayor Thomas Geisel who showed his concern that as part of the exhibition the curators intended to show a list of artworks that the Stern estate are seeking to recover, some of which are known to be held by German institutions. 

Baking is artistic speech? Part Art/Part Utilitarian A case that seems to stand for "they may have their wedding but they cannot eat my art" has been heard at the Supreme Court on December 5. Issue presented: "Whether applying Colorado's public accommodations law to compel the petitioner to create expression (a wedding cake) that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment." Argument transcript is available here with relish.

In the remaining hours of 2017, our best holiday wishes and thanks to all of the dedicated and inspiring writers and editors, generous volunteers, speakers, hosts and sponsors, friends and readers for making this year meaningful and memorable. 

We look forward to growing our team and reach, with the help from you and a brand new Board of Directors; and we thank you in advance for your contributions to the Center for Art Law, Inc.

With best wishes for the holidays, The Center for Art Law Team

To help you plan your art law calendar, check out the full listing of and upcoming events on our radar.
* Jan. 12, 2018 -- Let Us Rebury Our Dead: Native America's Imperfect and Necessary Law (DePaul Law, Chicago, IL) 11:50AM - 12:50 PM

Five decades ago, Native American leaders launched a crusade against museums to reclaim their sacred objects and to rebury their kin. This controversy has exploded in recent years as hundreds of U.S. tribes have used a 1990 landmark federal law—the Native American Graves Protection and Repatriation Act—to recover their looted heritage from more than one thousand museums across America. Many still question how to balance the religious freedoms of Native Americans with the academic freedoms of American scientists, and the arguments continue on about whether the emptying of museum shelves elevates human rights or destroys humanity’s common heritage.

* Jan. 23, 2017 -- NYSBA/EASL Annual Meeting -- Take a Bow: What Happens to the Assets After the "Greatest Show on Earth" is Over (Hilton Midtown, NY, NY)1:15PM - 3:20PM

Come one, come all! Send in the lawyers and the accountants. Inspired by the shuttering of the 140 year old Ringling Brothers and Barnum & Bailey Circus, as well as closings in New York of an iconic toy store and the oldest private art gallery, this panel will discuss legal and commercial concerns that arise when entertainment, visual and performing arts related businesses decide to call it a day. Major brands and venerable institutions facing liquidation or restructuring are likely to have valuable assets (such as real estate leases, owned or licensed intellectual property and goodwill) which should not be abandoned or otherwise wasted. Instead, with attention and planning, there may be opportunities for further monetization or even a second life after the death of a business. Moderated by Irina Tarsis, Esq., Founding Director, Center for Art Law and Law Office of Irina Tarsis, the panelists will include

  • Barry Werbin, Esq., Counsel, Herrick, Feinstein LLP 
  • Oliver Herzfeld, Esq., Senior VP and Chief Legal Officer, Beanstalk
  • Richard Gering, CLP and a principal of Asterion 
* Feb. 14, 2018 -- VLA: Forming Your For-Profit Arts Business (NYC) 4 PM- 6PM
On the Valentine's day, consider doing something practical and attend a workshop about starting an arts-related business. Covered issues also include: For vs. Non-Profit incorporation, fiscal sponsorship, selecting and protecting business names; the legal and tax characteristics of LLCs and publication requirements, partnerships, and type C and S corporations; choice of jurisdiction; financing your business; employees and independent contracts; and insurance.
* Feb. 23, 2018 -- African Americans and US Law in Visual Culture (LA Convention Center, LA, CA) 6 PM - 7:30 PM

A part of the College Arts Association Annual Meeting offerings, this panel, chaired by Jody B. Cutler of St. John’s University will feature four papers related to depiction of African Americans and law in the arts.

  • “We Know Enough to Vote”: Thomas Waterman Wood’s Depictions of Black Suffrage,” Sarah Kate Gillespie, Georgia Museum of Art
  • “Are They Equal in the Eyes of the Law?”: African American Soldiers in World War I Illustrated Sheet Music," Theresa Leininger-Miller, University of Cincinnati
  • “The Contractual Aesthetics of Sharecropping in Recent Art,” Albert Stabler, University of Illinois at Urbana-Champaign
  • “The Museum Meets the Legal Advocates: A Collaborative Exhibition on Racial Injustice,” Sara Softness, Brooklyn Museum
* Feb. 23-26, 2018 -- Conservation of Architectural Heritage (Luxor, Egypt)
Scientific research will foster the attempt to improve the know-how in the field. Expected results include a better understanding of the problems facing architectural heritage, the development of policies favoring its conservation, the definition of practical guidelines and the organization of training and awareness activities.
* Jun. 7-9, 2018 -- The Authentication in Art 2018 Congress (The Hague, The Netherlands)
The congress language is English. The topics of the 2018 AiA Congress will be: Technical Art History, The Center of it all: The Object, the AiA/NAI Alternative Dispute Resolution Board (Art & Law) and Technical Art History Database (TAHDa). Call for Posters is open now.  A poster presentation is a condensed version of the submitter’s research on an A0 poster. The posters will be put on display at a prominent location of the Congress-Venue. 

NOTE:  Be sure to check out our calendar for more events!

CPlundered Skulls and Stolen Spiritship Collwell, Plundered Skulls and Stolen Spirits: INSIDE THE FIGHT TO RECLAIM NATIVE AMERICA'S CULTURE (2017)
Who owns the past and the objects that physically connect us to history? And who has the right to decide this ownership, particularly when the objects are sacred or, in the case of skeletal remains, human? Is it the museums that care for the objects or the communities whose ancestors made them? These questions are at the heart of Plundered Skulls and Stolen Spirits, an insider account by a museum curator who has spent years balancing these controversial considerations. Available here.
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Halperin v. Gfoeller, 657184/2017 (Sup. Ct. NY Cnty. Dec. 3, 2017) — after defendant refused to refund the sale price, a complaint was filed on behalf of an Israeli resident alleging breaches of contract and express warranty based on a 2008 sale of a painted wooden mask attributed by Juan Gris. (IT)

Catlin, The Estate of Thomas Lopresti and William Beauty v. Hogan and Christie’s, Inc., 160370/2017 (Sup. Ct. NY  Cnty. Nov. 21, 2017) -- plaintiffs allege tortious activities on behalf of the defendants in relations to a unique numbered Andy Warhol screen print “Electric Chair.” Whereas Hogan was a co-owner of the artwork, he consigned the work to Christie’s without notifying other owners. The work was sold in May of 2006. According to the complaint, the other joint owners of the work learned of the sale in 2016. (IT)

Tobin v. The Rector, Church Wardens, and Vestrymen of Trinity Church, in the City of New York, 17 Civ. 2622 (LGS) (S.D.N.Y. Nov. 14, 2017) — J.Schofield dismissed the Visual Arts Rights Act violation complaint brought by an artist against the Trinity Church and others because in 2004, the artist transferred all of his rights, including copyright in the contested work to Trinity because she found that “simply relocating The Trinity Root does not by itself constitute distortion, mutilation or modification under VARA.” As to the site-specific nature of the art, the court applied 7th Circuit decision in Kelly v. Chicago Park Dist., 635 F.3d 290 (2011) to find that unless gross negligence can be established site-specific work is not protected under VARA. Order is available here. (IT)

Chowaika & Co. Fine Arts Ltd., Case No. 17-13228 (MKV) [Carpenter Fine Violins and Collectibles, LLC v. Ezra Chowaiki and David E.R. Danger, 65929/2017 (Sup. Ct. NY Cnty. Nov. 15, 2017), RH9 Group, LLC et al v. Chowaiki, 656930/2017, Sup. Ct. NY Cnty. Nov. 15, 2017, Leser v. Chowaiki & Co. Fine Art Ltd. et al, 656870/2017 (Sup. Ct. NY Cnty Nov. 12, 2017)]
Three lawsuits filed agains Chowaiki & Co. Fine Art corporation have precipitated the filing for bankruptcy by the private gallery and art advisory service founded in 2004 by Ezra Chowaiki, now accused of defrauding clients.The cases are stayed pending the US Bankruptcy Court for SDNY decision.

Joshua Liner Gallery v. Kagan, 656849/2017 (Sup. Ct. NY Cnty. Nov. 9, 2017) -- Plaintiff, a New York gallery, alleges fraudulent concealment of sales of paintings directly through Defendant's studio in violation of the artist-gallery agreement, as well as a failure to create and deliver a painting to the Gallery in consideration of certain sail goals, and other grievances. The complaint reveals that the Gallery has been acting as the Artist’s exclusive agent for the sale of artworks produced since 2014, and was entitled to a commission of 50% on any artwork Kagan sold. Kagan’s art is slated for exhibit on at the Virginia Museum of Contemporary Art in 2019. 

Berkshire Museum Lawsuits: Two groups of plaintiffs -- members and heirs of Norman Rockwell -- filed two lawsuits in an attempt to enjoin the deaccessioning of 50 artworks in planned November 13 Sotheby’s auction.  The heirs of Norman Rockwell filed a complaint arguing that the deaccession “violates the museum’s establishing statute, promises made to donors and the fiduciary obligations of its trustees.”  The MA Attorney General, Maura Healey, supported the Rockwell plaintiffs in a filing. The second complaint, brought by members of the Museum, argues that the museum has reneged on its obligations to its supporters by putting the works up for auction.  The theory is that because, under Massachusetts law, members of a nonprofit are treated like shareholders in a corporation, the relationship between the corporation and its governing charters and bylaws must be treated like a contract. A hearing was held on November 1, 2017, and the papers in support can be found here. The Court denied the request for an injunction, allowing the planned November 13 sale to proceed. (JB)

Schmitt v. Artforum International Magazine Inc. et al, 159464-2017 (Sup. Ct. NY Cnty. Oct. 25, 2017) -- Curator and Art Fair Director Amanda Schmitt, along with eight other women, sued Artforum and Knight Landesman over his alleged sexual harassment.  The complaint accuses the publication of allowing Landesman’s sexually abusive behavior toward multiple women to occur without consequence. It also claims that Defendant slandered Schmitt and threatened retaliation against current and former employees who might speak out against the harassment to the authorities or the press. The plaintiff seeks compensatory damages of $500,000 plus attorneys’ fees and punitive damages. (JB)

Mugrabi v. Mana Contemporary, 159407/2017 (Sup. Ct. NY Cnty. Oct 23, 2017) The Mugrabi family sued Mana Contemporary, which stores works for the dealer family, for preventing the removal of art works from its facility due to unpaid fees.  Since the filing of the complaint, the court ordered Mana to release some of the works in exchange for a $1 million payment by the Mugrabis.  (JB)

A Case for Law as an Artistic Medium

By centerforartlaw on Dec 28, 2017 10:59 am
By Caroline I. Keegan* The contemporary art industry and the legal community differ notably in their conceptions of art. The two worlds do not agree on what art is, a disagreement that causes some artwork to have no legal protections, while giving a legal pass to other artists to create works the art world may…Read more A Case for Law as an Artistic Medium
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