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Art Law Blast [4.30.2017]
Kristen Visbal, “Fearless Girl” (2017) & Arturo Di Modica, "Charing Bill" (1989)
Photo by Anthony Quintano

April Bull

To help you plan your art law calendar, check out the full listing of and upcoming events on our radar.
* May 1, 2017 -- Law Day: Workshop on Voting Rights (NYPL, NYC)
This hour-long workshop, facilitated by an artist and lawyer team across the city, will teach the basics of our nation’s path toward universal suffrage, as well as covering current controversies surrounding voting rights. During the second half of the workshop, participants are encouraged to lend their voices to the conversation by creating an original cartoon, meme, song, poem, or social media post that creatively expresses the meaning and importance to them of voting. 

Presented in partnership with Let's ROL, a new rule-of-law initiative founded by attorney Lesley Rosenthal and jazz artist Ted Rosenthal, dedicated to inspiring the public, through creative means, to the promise and privilege of civic participation.

* May 2-4, 2017 -- Accepting and Holding Objects “in Trust” – an International and Interdisciplinary Perspective (Vienna, Austria)
The conference aims to discuss the question how libraries, archives, museums, and Jewish institutions deal with cultural property or looted property held "in trust". National and international librarians, historians, curators and legal experts are invited to discuss structured procedures and lead an interdisciplinary debate on the requirements, chances, and limits of appropriate measures concerning objects which have been illegally acquired and have been received "in trust".
* May 3, 2017  -- Legal Primer for Visual Artists: Copyright, Fair Use, and Gallery Agreement... (Hometown Gallery, Brooklyn, NY)
The New York City Bar Association's Art Law Committee and the New York Foundation for the Arts will be hosting an event to provide information about what copyright is and the scope of your copyright rights as an artist, "fair use" and how it affects your ability to use other people's content in your work, and agreements with galleries. 

Speakers: Judith L. Church, Esq., Counsel, Debevoise & Plimpton;  Irina Tarsis, Esq., Founder and Director, Center for Art Law; Betsy Dale, Esq., Staff Attorney, Volunteer Lawyers for the Arts. Co-Moderators: Carol Steinberg, Esq., Law Firm of Carol J. Steinberg, Professor, School of Visual Arts; Adam Yokell, Esq. Owner and Director, Hometown Gallery

* May 4-5, 2017  -- MediateArt™ Training Program (CLE) (New York, NY)
Learn to be a Mediator with MediateArt and VLA! Attorneys earn up to 16 CLE credit hours. VLA’s MediateArt Training Program is a two-day intensive workshop of basic mediation training for attorneys, artists, arts administrators, and other professionals with an interest or background in the arts.
more here...
* May 6, 2017  -- Study Forum in London by Institute of Art and Law (London, UK)

The London University of Art and Law will be holding an all-day study forum at Notre Dame University in London, beginning at 9.30 am. There will be a variety of topics and a number of different speakers that will be discussing various topics such as art restitution, copyright law, The Barnes Foundation Dispute, and 
UK’s ratification of the Hague Convention.
* May 11-13, 2017  -- Cities’ Identity Through Architecture and Arts (Ciaro, Egypt)
The International Experts for Research Enrichment and Knowledge Exchange (IEREK) will be hosting this conference to discuss the different approaches recently developed in Architecture and Contemporary arts. It will focus on the basis of urban life and identities. The Conference also will display how citizens look at their city and how it is in a physical or mental manner compared, by them, with the ideal city by their own perception. Moreover, the city’s identity presents distinctive aspects that clarify its uniqueness and distinguished from any other city.
more here...
* May 18, 2017  --  FILM/PANEL "The Destruction of Memory" Cultural Crimes and the National and International Efforts to Combat Them (NYCBA, NYC)
The screening of the award-winning documentary The Destruction of Memory, will be followed by a distinguished panel of diplomats and experts, who will focus on international efforts to define the destruction of culture as a war crime; international efforts by UNESCO, the UN Security Council, UNIDROIT and the Council of Europe to combat the illicit traffic in conflict antiquities, and recommendations for how art-market stakeholders can and should stem the illicit traffic in antiquities. 

Panelists: Angelo Felicetti, Member, UN Security Council, Monitoring Team - 1267; Luigi Marini, Legal Advisor, Permanent Mission of Italy to the United Nations; Marie Paule Roudil, Director of Office and UNESCO Representative, United Nations; Tess Davis, Executive Director, Antiquities Coalition 
Tim Slade, Director/Producer, Vast Productions. Moderator:
Barbara T. Hoffman, Hoffman Law Firm.
* June 6, 2017 --  Art Law Mixer: Estate Planning for Artists (VLA, New York, NY)
Our last art law mixer of the school year is again being hosted by the Volunteer Lawyers for the Arts. We are looking forward to diving into the subject of trusts and estate planning and learning about programs available for aging artists. Be on the look out for more information soon. 

NOTE:  Be sure to check out our calendar for more events!
Thank you Brooklyn Law School and the Art Law Association for hosting our "You've Been Served" evening with Aaron Crowell.

Planning Ahead:
Estate Planning / Art Law Mixer
June 8, 2017
Volunteer Lawyers for the Arts, 1 East 53rd Street, New York, NY
What's New:
Sculptor Sues Trinity Church Over Removal of 9/11 Memorial: Pennsylvania-based sculptor Steve Tobin has filed a $1.2 million lawsuit against Trinity Church Parish, because his piece "Trinity Root" was removed from the church grounds. Tobin claims that the sculpture, installed in 2005, was understood by both parties as a permanent installation and that in 2016, the church moved and damaged the piece without notice in the middle of the night. The sculpture was intended to memorialize the victims of the September 11th, 2001 attacks on the nearby World Trade Center. (TM)

One day in April -Two Italian Returns: Italy, typically proactive about the repatriation of its cultural heritage, received two returned artworks in one day on April 18th. The Cleveland Museum of Art announced it would return an ancient Roman marble head of Drusus Minor it learned had been stolen during World War II. Meanwhile, the Boston Public Library will return three historical manuscripts to Italy, including works by 16th-century scientist  Bernadino Telesio. Congratulations to these two institutions for returning these cultural valuables without court orders. (TM)

Photographer and Warhol Foundation in Dispute Over Prince Screen Print: The Warhol Foundation has sued photographer Lynn Goldsmith, who claims that a 1984 screen print of Prince by Andy Warhol infringes on the copyright of her 1981 photograph of the singer. Goldsmith has stated she intends to bring counterclaims over the copyright. It seems that even posthumously, Prince just can’t avoid controversy. (TM)

Multiple Flavors of Street Art Copyright: This month in street art law news: a court settlement has foiled the attempts of a developer building over a colorful 9-story mural, citing the Visual Artists Rights Act of 1990. Meanwhile, McDonald’s is under fire for including unauthorized images of Bushwick street artists leading to complications including the obvious copyright infringement, to potential claims of false endorsement, damages to work and reputation, and improper profits garnered from unauthorized use. One would think McDonald's should be a faster learner, following the fallout from their use of Dash Snow’s work in their restaurant decor.  (TM)

Another Settlement in String of Knoedler Gallery Lawsuits: Casino mogul and former Ultimate Fighting Championship co-owner Frank Fertittia III has settled out of a suit against curator Oliver Wick, over the sale of a forged Rothko painting via Knoedler. (TM)

The Act of Drinking Beer with Friends is the Highest Form of Art: In Orange County, California, Assemblyman Matthew Harper has drafted a bill to allow art gallery owners throughout California to serve beer and wine without a license from the state Department of Alcoholic Beverage Council. The proposal comes after a local fiasco last year in which undercover Laguna Beach officers cited five galleries for serving alcohol without a license during a First Thursdays Art Walk. Caveat bibitor! (TM)

From Russia with Morality a Bill Seeking to Police Museums and Galleries: A proposed Russian bill seeks to enact fines against theaters and museums who fail to “protect visitor’s feelings,” an attempt to protect high moral values such as “patriotism, religious beliefs, national and aesthetic values.” Some commentators have contextualized the bill as an extension of the existing law protecting the feelings of religious believers. Serving alcohol w/out a license or consuming the same in museum seems not be included in the proposal. (TM)

Out of Australia: The Indian High Commission has advised the National Gallery of Australia that four of its antique statues are subject to be investigated by the Idol Wing of the Tamil Nuda police. Two of the pieces were purchased from currently imprisoned dealer Subhash Kapoor, accused of smuggling more than $100 million of stolen artwork from India. Elsewhere, two Australian men have been acquitted of selling fraudulent Brett Whiteley paintings, which they had been previously found guilty of faking. (TM)

The Met Considering Admission Fee for non-New Yorkers: Amidst its public multi-million dollar budget deficit and the resignation of its Executive Director, the Metropolitan Museum of Modern Art is reportedly toying with the idea of charging mandatory admission for non-New York City residents. Mayor Bill DeBlasio has endorsed the idea, calling it “fair,” although many questions remain about how this might be accomplished and what the fee would be. (TM)

This Month Primer on Restitution Law: A - German authorities are loosing the fighting in United States federal court for the possession of the Guelph Treasure, a collection of medieval German church art. Heirs of the German Jewish art dealers who sold the collection to the Dresdner Bank in 1935 are suing, claiming the sale was forced and invalid. B - An agreement between the University of Oklahoma and the Parisian heir of the painting “Shepherdess Bringing in Sheep” has been reached. The painting will be displayed in Paris for five years, before rotating between Paris and the university in three year intervals. C -  The owner of a Nazi-looted 17th-century Dutch portrait pulled the work from auction just hours before, following anonymous threats and public outcry. The situation has lead to increased pressure for Austria to revise its restitution law, allowing the government to intervene in cases of looted art going on auction. (TM)

Vivian Maier's Estate now in Dispute with Another Collector Over Copyright and Trademark Infringement: This week, Vivian Maier's estate filed a complaint against Jeffrey Goldstein, a Chicago art collector who sold his collection of approximately 17,500 Maier negatives to a gallery in Toronto in 2014. The estate only owns Maier's copyrights in the photographs. Goldstein is accused of infringing on the estate's copyrights and misleading the public about the legitimacy of prints by having registered the name “Vivian Maier Prints,” and operating the website without permission from the estate. The estate claims that these activities harmed the estate's rights in the works and caused a loss of profits. The website content has now been taken down (HD)
Marisol Estate Heads to the Albright-Knox: Another great artist passes who has an unusual estate plan for her work. Although she had no gallery representation at her death, she left her entire estate to the museum called the Albright-Knox Art Gallery in Buffalo, New York. Traditionally in the art world, when an artist passed they would have a gallery handle their estate, but Marsol passed without any gallery representation at the time of her death last year. Artist's entire estate consists of 100 sculptures and more than 150 works on paper, thousands of photographs and slides, and a small group of works by other artists Marisol had collected. The bequest also includes the artist’s archive, library, studies, tools, and New York loft apartment. It is an unusual move for one museum to receive an artist entire estate, but because the Albright-Knox was the first to purchase her work in the 1960's Marisol felt her work would best be kept at a museum that first recognized her work. (HD)
Is Case Law Corner your favorite section of the Center for Art Law's newsletter?
Don't wait for our next email to get your fix. Read more case law now!

The Andy Warhol Foundation for the Visual Arts, INC v. Lynn Goldsmith and Lynn Goldsmith LTD, 1:17-cv-02532 (S.D.N.Y., April 7, 2017) "[To] Protect the work and Legacy" of Andy Warhol, his foundation brought action against a photographer claiming copyright in the photograph Warhol used to create a portrait of a late pop musician Prince on the theory of fair use. The complaint is available here. ML

Anonymous v. Anonymous, 2017 NY Slip Op 02613 (N.Y., April 4, 2017) A husband commenced a matrimonial action on May 6, 2014, claiming separate ownership of tens of millions of dollars' worth of art, while his wife claims the art was jointly owned and that own four specified works of art purportedly worth a total of approximately $22 million. The parties had a prenuptial agreement but it did not specifically address how the parties should divide their art collection upon dissolution of the marriage. The question presented was whether certain works of art purchased during the marriage were the husband's separate property or were jointly held. The court held that the fact that the invoice was in the husband's name alone was not the end of the inquiry: "We conclude that title to personalty cannot be determined by relying solely upon an invoice. In determining title to the artwork in question, all the facts and circumstances of the acquisition and indicia of ownership must also be considered." More here. ML

Cohen v. G&M Realty, 13-CV-05612 (FB) (RLM) (E.D.N.Y. Mar. 31, 2017) Earlier in the year, the court ruled that the plaintiff artists in the high profile 5Pointz graffiti art mural case may go to trial, finding that the artists demonstrated they were harmed by the building's demolition under the Visual Artists Rights Act (VARA). In particular, Judge Block found that the question of "recognized stature" under VARA was clearly a factual one for the jury, which would assess the plaintiffs' expert's report and testimony at trial. Defendants’ counterclaim for abuse of process were dismissed. The plaintiffs' separate claims for conversion, property damage, and intentional infliction of emotional distress were also dismissed. Opinion available here. ML

Court d'appel [CA] [regional court of appeal] (Versailles, 1e ch., March 24, 2017) Judge Alain PALAU ruled against Christie’s auction house invalidating its 2008 decision to transfer the burden to pay the resale royalty cost from the seller of an art work to the accepting buyer. It is after the sale of the Yves Saint Laurent art collection in the Grand Palais, Paris, in 2009, that the Comité Professionnel des Galeries d’Art (CPGA) and Syndicat National des Antiquaires (SNA) brought a complaint against the Christie’s shifting obligations to the buyer, claiming among other things that: Christie’s was gaining a competitive advantage by seeking to charge buyers rather than sellers.

In March 2017, the Court d’Appel de Versailles ruled that according to the wording of article L 122-8 of the French Intellectual Property Code, the droit de suite should be paid by the vendor "without exception" and that the clause transferring the resale royalty cost to the buyer in the general condition of sales should be void and with no effect. Christie’s France intends to appeal before the French civil Supreme Court. Decision is available here. ML

Foyt Jaglom v. Jaglom, 650580/2017 (N.Y., Feb. 2, 2017) An inheritance dispute involving heirs of the  art of collector Simon M. Jaglom. His former daughter in law brought action seeing to affect title to artworks consigned by Jaglom executor. In her complaint, she alleged that the son of the collector consigned the artworks to the auction house in 1994, after the works were gifted to him and that the remaining 15 artworks passed on to his heirs when he died in 1992. In 1994, Michael Jaglom as executor of the will of his father and co-owner of the gifted artworks consigned to the custody of Sotheby's in NY. The auction house supposedly kept the work in storage since that time without charging them. In 2015, Sotheby’s informed plaintiff, because of her trustee position in the "Jaglom Family 2012 Art Trust” that it intended to transfer custody of the works to a third-party storage facility.  ML

Cipriani v. Kendrick Lamar Duckworth et al., 1:15-cv-04078 (S.D.N.Y Dec. 2016) This action for copyright infringement lawsuit and related claims brought by Cipriani, the sole author, owner, and exclusive holder of copyrights in a photograph titled “Twins” (“Photograph”), arising from Defendants' unauthorized use of the Photograph in conjunction with the online video release and commercial promotion of a music recording titled “The Blacker the Berry” was voluntarily dismissed after the parties decided to enter mediation. ML

Hayuk v. Starbucks Corporation, 1:15-cv-04887 (S.D.N.Y, Jan. 12, 2016) Hayuk, a Brooklyn muralist, was seeking an injunction against the ad campaign of Starbucks and its advertising agency 72andSunny Partners LLC, damages up to $150,000 per infringed-upon painting, and a share of the Mini Frappuccino profits, after the advertising agency, despite the refusal of Hayuk, borrowed from her pieces to lauch the Frappuccino campaign. It was ruled that the set of works were not substantially similar, even if they share the use of overlapping colored rays: "the elements fell into the unprotectible category of “raw materials” or ideas in the public domain". Memo and affirming order available here. ML 

For a full list of books and articles featured previously,
please visit our Publications page.*

Newest Additions

Wendy Lee, The Art of Confidence. (November 29, 2016) 
A fictional take on art fraud, The Art of Confidence centers around a Chinese immigrant painter named Liu Qingwu who is coerced into creating a forgery of version of a well-known modernist masterpiece. With echoes of the real-life forger Pei-Shen Qian, the book tries to examine the multiple and overlapping factors that lead the art world to produce fakes. 

Still in print (for those who went on vacation in March)

Tiffany Jenkins, Keeping Their Marbles (Oxford University Press, 2017): In Tiffany Jenkins’ new strongly-worded essay on repatriation, she traces the sometimes messy histories of how artefacts ended up in Western museums. The book is written amid an increase in repatriation cases over the last few decades, a recent phenomenon that Jenkins assesses. Controversially, Jenkins argues in favor of the museum as crucial centers for knowledge and culture, and for these artifacts to stay in them. Available here.

Gary Vikan, Sacred and Stolen: Confessions of a Museum Director (Sept. 2016). Critically acclaimed already, this 2016 publication is a memoir of an art museum director who looks at the "messy underbelly of museum life: looted antiquities, crooked dealers, deluded collectors, duplicitous public officials, fakes, inside thefts, bribery, and failed exhibitions." Museum directors come and go, but their journeys are often lesson-forming and memorable. In case of Vikan, his experiences included meeting "the elegant French oil heiress, Dominique de Menil, the notorious Turkish smuggler, Aydin Dikmen, his slippery Dutch dealer, Michel van Rijn, the inscrutable and implacable Patriarchs of Ethiopia and Georgia, and the charismatic President of Georgia, Eduard Shevardnadze—along with a mysterious thief of a gorgeous Renoir painting missing from a museum for over sixty years." Available here.

Stephen Tepper, Not Here, Not Now, Not That: Protest over Art and Culture in America (University of Chicago Press, 2011) Utilizing over 71 cases, Stephen J. Tepper puts the microscope on art controversy in the United States in order to pose the question, why do certain works lead to protest? With the defunding of the National Endowment of the Arts a renewed possibility, Tepper’s studies of the local disputes surrounding public funding and exhibition provides an analysis of the local controversies that constitute what we understand as the “culture war” that put public arts in the crosshairs in the ‘90s. Available here.

John Kerr, The Securitization and Policing of Art Theft: The Case of London (Routledge, 2016) While art theft has captured the popular imagination, with many popular films and books on the subject, it remains under-researched in academic circles, at least according to Kerr's editors. Kerr, a senior lecturer at the University of Roehampton since 2012, is currently carrying out funded research on the policing approaches to art crimes in the UK, Italy and France. His 2016 study looks at the securitization of art in London, one of the world’s largest centers for art, to provide insights on the policing and insuring of artworks against theft. Available here.

Noah Charney, The Art of Forgery: The Minds, Motives & Methods (Phaidon, 2015) Charney, international author of fiction and non-fiction, who is the founder and president of the Association for Research into Crimes against Art, reveals the stories and motives of why many well known forgers in the art world make forgeries. Many of these forgers surprisingly are not motivated by money and one forger even went so far as to sue himself in court. There is a certain thrill in fooling people according to the subtitle of the book, “The world wishes to be deceived”, and the author’s conclusion is “So let it be deceived.” He also looks at the role that the art world plays in these crimes. Consider reading this book before attending our screening of "F for Fake" on April 20, 2017, at Brooklyn Law School.

Recent Articles:

WYWH: Immigration Law and the Arts – NICE WORK IF YOU CAN GET IN

  By Katherine Jennings   On March 9, 2017, the Center for Art Law held an Art Law Mixer addressing the timely and provocative topic of immigration issues confronted by immigrant artists with the recent issuance of EO 13769, among other anti-immigrant measures. The 45th President commenced his presidency with a barrage of Executive Orders (EOs) including EO…Read more WYWH: Immigration Law and the Arts – NICE WORK IF YOU CAN GET IN Read in browser »

WWYH: “Eyes on the NYC Department of Cultural Affairs” and Changing Policies

By Heather DeSerio* On February 28, 2017, the New York State Bar Entertainment, Arts and Sports Law’s Fine Art’s Committee (EASL) hosted a brown bag lunch with Kristin Sakoda, Deputy Commissioner and General Counsel of the New York City (NYC or the “City”) Department of Cultural Affairs (DCLA or Department). Sakoda is a veteran at…Read more WWYH: “Eyes on the NYC Department of Cultural Affairs” and Changing Policies Read in browser »

Cuba’s in the Air: The Legal Challenges to Loaning Art from Cuba due to Judgments under the State Sponsored Terrorism Exception

By Mandy Estinville* Cuba and the United States are closer now than they have been for 50 years. In 2015, the United States officially removed Cuba from its list of State Sponsors of Terrorism. Moreover, the Obama Administration amended the Office of Foreign Assets Control (OFAC) regulations to allow for greater freedom in travel and remittances,…Read more Cuba’s in the Air: The Legal Challenges to Loaning Art from Cuba due to Judgments under the State Sponsored Terrorism Exception Read in browser »
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