The Art Law Report

Providing timely updates and commentary on legal issues in the museum and visual arts communities

Shepard Fairey Wanted on Vandalism Charge for Street Art in Detroit—Will This be the VARA Test Case?

Posted in Copyright, Graffiti Art, Moral Rights

Detroit police have issued a warrant for well-known artist Shepard Fairey in connection with his recent visit to the city, on suspicion of vandalism.  While Fairey was apparently in Detroit to paint a commissioned mural at One Campus Martius, he told the Detroit Free Press, “I still do stuff on the street without permission. I’ll be doing stuff on the street when I’m in Detroit.”  According to the Free Press:

Police say that between May 16 and 22, Fairey pasted nine posters with his own iconic symbols like Andre the Giant and other images. The various posters are roughly square in size, and measured four or so feet in height and width.

And further:

“Just because he is a well-known artist does not take away the fact that he is also a vandal,” said Detroit Police Sgt. Rebecca McKay, who oversees the city’s graffiti task force. “And that’s what we consider was done, in these instances, was vandalism.”

There is no copyright or expressive defense to these criminal charges, nor to any civil claim for property damage.  What I find interesting, however, is if this instance will provide a test case for some of the street art and moral rights questions that have been percolating.

One thing that occurred to me last week when the latest 5Pointz lawsuit was filed was whether Banksy might have been able to contribute a “work of recognized stature” that could have changed the result in the first phase of that dispute.  Specifically, in the HBO documentary Banksy Does New York, it is suggested that Banksy was considering making a contribution to 5Pointz during his stay in New York.  The Visual Artists Rights Act of 1990 (VARA) grants a right of attribution to artists, and a right to protect the physical integrity of a “work of recognized stature.”  The standard relates to the work, not the artists, but as the recent Richard Prince controversy showed, that current runs in both directions.  The time between the creation of a work and its recognition can be the blink of an eye.  In the end Banksy did not contribute to 5Pointz, but what if he had?  Could he have made a claim to save 5Pointz?  Just part of it?

That is why I find the Fairey charge interesting.  His “Giant” images are extremely well known.  Regardless of his prosecution, could he assert VARA rights—literally, to prevent their destruction or painting over them—over graffiti that subjects him at the very same time to different exposure?  The results are not mutually exclusive.  One conundrum of this blossoming issue is that the cohort of potential plaintiffs (street artists) may not be the people one thinks will run to federal court to make a point.  But Fairey is no stranger to controversy or sticking to his guns.  Before it settled, his dispute with the Associated Press over his Hope image of Barack Obama was the biggest fair use visual art case since Jeff Koons (until Richard Prince appropriated Patrick Cariou’s photographs, at least).

Don’t be surprised if this story carries a high profile.

Always Read Closely: New York Senate Passes Authentication Bill, But Enhanced Burden of Proof Stripped from Earlier Proposal and Fee-Shifting Is Diluted

Posted in Authentication, Legislation

The New York State Senate has passed a bill relating to the liability of authenticators and appraisers.  When I first saw the news it seemed like a minor development, but then I went and read the bill.  It stripped out a material aspect of the bill first proposed last year that would have required plaintiffs seeking damages against authenticators to prove their case by clear and convincing evidence, a daunting standard.  Heightened pleading requirements are still contained within the bill, but the attorneys’ fees provision has also been watered down, with such an award now discretionary rather than mandatory.

As we described it when it was first proposed:

The bill is designed to address what has become a growing problem in the art world.  Namely, where the authenticity of a painting is the key to its value (i.e., whether it is extremely valuable, or worthless), the appraiser or art historian rendering an opinion as to authenticity is in the crosshairs of everyone involved.  The party asserting authenticity will be concerned about any statements to the contrary, while the party resisting the notion that a work is by a particular artist will want to avoid attribution of a work that may affect the value of other, indisputably authentic works.  Where that much money is at stake, the stakes for everyone are raised.

In the first version, Senate Bill S6794 provided that a new Section 13.04 would have been added to the Arts & Cultural Affairs Law that read:

In any civil action brought against an authenticator that arises from or relates to the authenticator’s opinion or information concerning a work of fine art, the claimant shall:

(a) specify with particularity in the complaint facts sufficient to support each element of the claim or claims asserted; and

(b) prove the elements of such claim or claims by clear and convincing evidence.

This was a very high pleading standard and standard of proof, well more than the usual more-likely-than-not/preponderance of the evidence burden that is generally applicable to civil cases.  The bill that passed last week, however (S1229-A), would now add a new section 15.12 to the Arts & Cultural Affairs Law to read:

IN ANY CIVIL ACTION BROUGHT AGAINST AN AUTHENTICATOR, AS DEFINED IN SUBDIVISION 23 OF SECTION 11.01 OF THIS CHAPTER, THAT ARISES FROM OR RELATES TO THE AUTHENTICATOR’S OPINION OR INFORMATION CONCERNING A VISUAL ART MULTIPLE OR WORK OF FINE ART, THE CLAIMANT SHALL SPECIFY WITH PARTICULARITY IN THE COMPLAINT FACTS SUFFICIENT TO SUPPORT EACH ELEMENT OF THE CLAIM OR CLAIMS ASSERTED.

That is effectively the same as sub-paragraph (a) in last year’s bill.  But what about the rest?  Heightened pleading is all well and good, but it is not a terribly difficult task.  In addition, where any prevailing authenticator under the first bill was automatically entitled to his attorney’s fees, now it is in the discretion of the judge, an outcome that is of course unknowable at the start of a lawsuit.  Consider the following pleading examples:

A) Authenticator X was negligent in his opinion dated January 1, 2015 as to the authenticity of the Picasso purchased by plaintiff. 

This easily satisfies general pleading requirements, but probably not pleading with particularity.  Contrast:

B) Authenticator X overlooked facts A, B, and C, as a result of which his opinion dated January 1, 2015 failed to conform to the duty he owed to the plaintiff under their agreement and applicable law. 

That probably suffices, and any plaintiff who didn’t know what A, B, and C were probably wasn’t going to survive the pleading stage anyway when challenged.  The point is, it is no real obstacle to initiating a lawsuit.  The real disincentive to suing authenticators, in my view, came from the high burden of proof and from knowing that if you brought a claim and lost, you were automatically on the hook for the authenticator’s attorneys’ fees.  Now, that fee award is discretionary.

Whatever you think of the concept, I don’t think there’s any question that the intended in terrorem effect of the original proposal has been diminished significantly.  And if that was the whole point (which not everyone is buying)—to spare authenticators lawsuits they would likely win but at great cost—then what now?  Hyperallergic posed the question, for example, of whether the Warhol Foundation and others that have stopped performing authentications would get back in the business.

With these changes, I highly doubt it.

5Pointz Property Owner Sued Again Over Whitewashing of Graffiti—Measure of Damages Bears Watching

Posted in Copyright, Graffiti Art, Moral Rights, VARA

Several street artists have sued the property owners of the building in Queens that    became known as “5Pointz”—a “Mecca” of graffiti and street art.  This is the second such lawsuit, after another group of artists failed to obtain a preliminary injunction in November, 2013, and the owners whitewashed nearly all of the painting on the buildings.  The new lawsuit seeks damages related to the whitewashing itself, alleging that it was done hastily and secretly without giving the artists sufficient time either to remove or document their work.  It relies on the Visual Artists Rights Act of 1990 (VARA), the lone moral rights provision of the Copyright Act.

Before:

800px-5_Pointz_Building_Rear_View

After:

graffiti21n-2-web

VARA protects primarily two things, and under certain conditions: the right of attribution and the right of integrity.  The right of attribution says that an artist has a right to control when a work of visual art (as defined in the statute, more on that in a moment) can be attributed to him or her—even when he or she no longer owns the work: “the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.”  A well known recent example of this was when Sotheby’s withdrew a work by artist Cady Nolan from auction because she said that it had been altered too much to still be considered her work (Sotheby’s then prevailed in a lawsuit by the consignor who was upset at the withdrawal from sale).  Christoph Büchel’s lawsuit against MassMoCA was similar, in that the museum was not permitted to show his installation as by him after he left the project over creative differences.  The right of attribution is available to any artist, regardless of fame or renown, but it is not at issue in the new case.

What is involved in both lawsuits is the right of integrity.  § 106A(3)(B) of the Copyright Act (VARA) gives an artist the right “to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”  The statutory right relates to the work’s stature, not the artist’s.

Against all this, the new lawsuit argues on behalf of plaintiffs Maria Castillo (TOOFLY), James Cochran (Jimmy C), Luis Gomez (Ishmael), Bienbenido Guerra (FCEE), Richard Miller (Patch Whiskey), Kai Niederhausen (Semor), Carlo Nieva, Rodney Rodriguez (PANIC), and Kenji Takabayashi that:

Without giving Plaintiffs a fair opportunity to remove and preserve their work, or even the minimum notice required by law, Defendants suddenly decided to destroy it under cover of night, even though at the time of the destruction they were far from ready to demolish the buildings in question.  The destruction was gratuitous, willful and wanton, and undertaken without regard to the feelings, reputations or financial interests of the Plaintiffs, who now seek compensation for their devastating losses.

Although the Complaint makes explicit reference to the artists’ recognized stature—which, as noted above, does not qualify for protection—I think the liberal pleading standard certainly allows an inference from the entire Complaint that the allegation is that the works were of recognized stature.  Courts generally will not require the recitation of magic words right from the statute (nor will such a recitation be enough without more), and the Complaint discuss the fame of the works and of 5Pointz as a destination.

The case has already been assigned to the same judge that is presiding over the first one (which is still going on).  So, the question is, what would be different this time?  The first and important point is that the first plaintiffs did not lose, they just could not get an injunction to save the painting.  And, the main thrust of this new case is damage related to the whitewashing of the graffiti.

Still, the availability of protection is a threshold requirement that will be a challenge given the ruling in the first case.  There, the judge found that 5Pointz was not a “work of visual art,” but more of a tourist attraction, and that the plaintiffs did not meet their burden of irreparable harm.  On the latter point, I was just last night watching the HBO special Banksy Does New York, which is terrific on the topic of Banksy specifically, but also has some moving video shots of 5Ppointz before its whitewashing.  That’s not coming back, which seems like irreparable harm to me.  I still don’t understand the “work of visual art” holding either, because the statute is pretty explicit about what is, and what is not, a “work of visual art” that gets VARA protection:

A “work of visual art” is—
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or 
(2)a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. 
A work of visual art does not include
(A) (i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication; 
(ii)any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; 
(iii)any portion or part of any item described in clause (i) or (ii); 
(B)any work made for hire; or 
(C) any work not subject to copyright protection under this title.

These are paintings under that definition, from my perspective.  Whether or not the judge is correct, however, he is the judge, and will presumably rule the same way in the second case, unless he views the newer claims as more particular to specific paintings and artists and less to 5Pointz as a whole.  The good news for the plaintiffs is that the judge was quite interested in the question of recognized stature, though he never reached it in the injunction decision.

Lastly, this case will be very interesting to watch on the question of damages.  Presumably none of the works were registered and entitled to statutory damages.  So what is the measure of their financial loss?  The defendants are not exploiting the works in a way that could result in profits to be turned over, they destroyed the graffiti.  Is the damage to the artists’ reputations?  How will that be quantified?  One theme we discussed last week’s “Copyrights on the Street” panel in Newport was the idea of a loss of “street cred” as a measure of damages, but there too, that had more to do with unauthorized exploitation than financial loss.

This Complaint seems drafted for the long game.  The plaintiffs’ attorneys obviously know the contours of the first ruling, and one has to think the expectation is ultimately to get to the Second Circuit and make some governing law.  It would be helpful, because despite the uptick in recent graffiti art cases, most have still settled before any substantive litigation or findings took place.

In re-reading the original 5Pointz opinion, by the way, I noticed an interesting overstatement in the preamble:

This marks the first occasion that a court has had to determine whether the work of an exterior aerosol artist—given its general ephemeral nature—is worthy of any protection under the law.

That’s not quite right.  Earlier that same year, the Ninth Circuit ruled on a copyright case in which the original work was street art.  The question on review was whether the Green Day concert video that incorporated that image was a fair use (the court held that it was), but fair use analysis necessarily means that the work is copyrighted and any reproduction is otherwise an infringement.  So a U.S. Court of Appeals had indeed already found that “the work of an exterior aerosol artist [] is worthy of [] protection under the law” by the time the 5Pointz injunction was denied.

More updates to come as developments warrant.

Foreign Cultural Exchange Jurisdictional Clarification Act and the Immunity from Seizure Act—Status Quo Is Often Misunderstood

Posted in Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, Foreign Sovereign Immunities, Immunity from Seizure Act, Museums, Restitution

There has been additional commentary in the last week on the Foreign Cultural Exchange Jurisdictional Clarification Act, including this piece at Hyperallergic in which I’m quoted.  The piece reminds me to revisit a confusing subject latent in the whole discussion: immunity from suit versus immunity from seizure.  Despite what one frequently reads, the current bill would have no effect at all on immunity from seizure, which seems to be most people’s concern.  It would affect only a small category of exceptions for immunity from suit, that is, who can be sued, not what can be loaned into the United States.

Immunity from suit means that a particular person or entity cannot be a defendant in a lawsuit.  The most common example is sovereign immunity: the State of New York, or the Kingdom of Spain, or their subdivisions or instrumentalities (think state museums) cannot be sued unless they have given their consent, or a statute applies an exception to that immunity.  The Foreign Sovereign Immunities Act provides a list of such exceptions for foreign sovereigns (like Germany) or their instrumentalities (like the Thyssen-Bornemisza Collection).  As it happens, many of those exceptions require consideration of commercial activity, instances in which the foreign sovereign acts more like a commercial actor (e.g., an art dealer or buyer) than a sovereign one (e.g., the activity of its diplomats or governmental affairs).  If an exception applies, then the defendant can be sued and the question then becomes whether the plaintiff will prevail.

Immunity from seizure, by contrast, concerns property, not potential defendants.  A painting that is immune from seizure cannot be seized by the government, or to satisfy a judgment in a civil lawsuit.  Without that immunity, such seizures or “executions” (after final judgment) happen as a matter of course, it is how judgments are commonly paid for.  If a painting or cultural object has IFSA immunity, it cannot be seized, for any reason.  IFSA has been the law since 1965 and it is not being amended or even proposed to be amended.  Regardless of the fate of the Foreign Cultural Exchange Jurisdictional Clarification Act, an object that has IFSA immunity can be lent into the United States and it will be returned to its lender at the end of the loan.  Full stop.  So while the city of Amsterdam would have been immune suit as a political subdivision, it was not because it lent a painting to a museum in America, even though the painting was immune from seizure under IFSA.

Much of the coverage focuses its outrage on that latter point: that “stolen” art is being lent with impunity.  But it is IFSA that allows that result, not the FSIA.  And amending the FSIA, in this or any other form, will not change it.  It will take away a potential means of jurisdiction over a class of defendants—who make a loan of an immune object constituting sufficient commercial activity if none other exists—but it would have no effect whatsoever on claims to stolen works immune from seizure.  None.

An important point to remember, too, is that immunity is not automatic.  It lies within the discretion of the State Department.

Whether or not the bill becomes law, it is useful to bear these distinctions in mind as to the current state of things.

Cassirer and the State of Restitution—Takeaways and Next Steps

Posted in Foreign Sovereign Immunities, Museums, Restitution, World War II

I’ve been talking quite a bit to friends, colleagues and clients about the impact of last week’s decision in the Cassirer v. Thyssen Bornemisza case.  The New York Times had a follow up article yesterday which was an interesting treatment of the various themes at work in the case and in restitution cases in the United States generally these days.  In fact, I think the effect is mostly limited, except to the extent that the decision assumes and treats as uncontroversial important principles about sales under duress and is a case that resolved title under the Foreign Sovereign Immunities Act (FSIA).  As we predicted, the Times article makes clear that the museum has absolutely no intention of giving the painting back, but did float the idea of some recognition of the historical circumstances, which is progress (certainly compared to other instances in which obvious circumstances of duress are denied).

A first and important point is that this decision does not change the landscape on jurisdiction.  The defendants resisted jurisdiction vigorously, but the Ninth Circuit checked their request (finding jurisdiction) and the case was decided on a substantive, not a procedural, basis.  Thus, the expropriation exception to sovereign immunity (under the FSIA and following Altmann) is a definitively valid means to resolve the title to a work of art.  The opinion refers repeatedly to the illicit taking of the painting from Lilly Cassirer Neubauer as a fact, yet the Thyssen Bornemisza Collection has been found to be the legal owner of title to Camille Pissarro’s Rue St. Honoré, après-midi, êffet de pluie.  Thus, the scenario that we have been discussing as a possibility in the context of another Pissarro, Léone Meyer’s claim against the Fred Jones, Jr. Museum at the University of Oklahoma: a ruling that concludes a painting was stolen, yet finds that the victim’s heir is not the owner today.  In Oklahoma the looming issue is a Swiss judgment against Meyer’s father, in Cassirer the issue was adverse possession.

One question I have been asked repeatedly in the wake of last week’s decision is, “how can this be?”  The basic answer is that European and American law are very different about personal property; in Europe (whether through good faith subsequent purchase or adverse possession), the paramount consideration is the stability of translations.  In the United States, generally, it is the reverse: the victim of theft is treated as the primary interest.  Whether this should or should not be, it is.

What about the future of this case?  While the defendant and its attorney were quite sanguine that the case is over, I’m not so sure.  The dispositive holding in the decision is the choice of Spanish law over California law.  If the court had instead selected California law, the plaintiffs would not necessarily have won yet, but they would not have lost.  One assumes that any appeal will therefore focus on that choice of law analysis.  In this respect the plaintiffs have important precedent: the Bakalar v. Vavra case in New York concerning an Egon Schiele drawing.  In that case, the U.S. District Court initially chose to apply Swiss law, and with the presumption afforded to good faith purchasers, ruled against the heirs of Fritz Grünbaum.  But the Second Circuit reversed, concluding that New York’s interests in the issue of potentially stolen art were more important.  Ultimately Bakalar still prevailed, but on the defense of laches (and on a finding that the painting in question was not stolen, one of the very rare cases ever to reach that conclusion).

Critically, that analysis by the judge in Cassirer is a legal question that will be reviewed in any appeal de novo, that is, from scratch and with no deference to the initial conclusion.  That is the most favorable posture for an appellant (the party appealing).  While one expects the defendant to argue that the District Court’s analysis was sound, the Court of Appeals considers the question as though it were being posed for the first time.  By contrast, findings of fact are entitled to great deference and will only be overturned if there is a clear error or abuse of discretion (think NFL replay).

So I give the Cassirer plaintiffs a reasonable chance relative to the usual uphill battle that all appeals are, but it will not be easy.  The Thyssen’s lawyers did a very skillful job of framing the issues and persuading the trial judge, who I think from reading the opinion was genuinely conflicted.  His invocation of the Washington Principles has no legal effect because he dismissed the case, but it underscores their continued importance.

Lastly, the treatment of the circumstances of Lilly’s dispossession is very important.  The key facts recited for the conclusion that the 1930s transaction was illegitimate was that it was a forced sale, and regardless, that the proceeds of the transaction were paid into a blocked account.  Thee matter of fact treatment of that conclusion is indeed significant.

Foreign Cultural Exchange Jurisdictional Clarification Act Returns

Posted in Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, Foreign Sovereign Immunities, Immunity from Seizure Act, Restitution, World War II

The U.S. House of Representatives passed yesterday H.R. 889, the Foreign Cultural Exchange Jurisdictional Clarification Act for the third time in four years.  Identical bills passed the house in early 2012 and again last year but failed to win passage in the Senate and signature by the President, thus expiring without becoming a law (and remaining just a bill sitting on Capitol Hill).  Will it become law? Probably not, and after a little reflection and evolution, that’s probably for the best.

Since the last attempt, of course, we’ve discussed the Foreign Sovereign Immunities Act (FSIA) quite a bit: it is the expropriation exception in that statute that provided jurisdiction in the Altmann v. Republic of Austria case, and which provides jurisdiction to the Welfenschatz claim against the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz.  That exception applies when the claim concerns the taking of property in violation of international law, and the defendant is engaged in commercial activity in the United States (not necessarily related to the claim).  The bill would amend § 1605 of the FSIA to clarify when a cultural object loaned with immunity from seizure pursuant to the Immunity from Seizure Act, 22 U.S.C. § 2459 (IFSA) can also constitute the “commercial activity” element.  The proposed law is, in fact, quite narrow.  It would eliminate federal court jurisdiction only when the sovereign defendant has no other commercial activity in the U.S., a scenario that as far as I know has only happened once: in Malevicz v. City of Amsterdam in 2005.  And, it does not apply to Nazi-looted claims, meaning even a sovereign defendant that lent a painting looted by the Nazis into the United States could be sued, even if the painting could not be seized.

When the bill was first proposed in 2012, I thought it was sensible, frankly.  There is a tension between IFSA and the FSIA that Malevicz exposed.  Many disagreed, forcefully.  Last year I paid less attention because it seemed destined for the same fate.

I fully expect that will happen again.  But I will say that something I heard at last week’s Art Crime Conference gives me pause about this law.  Mari-Claudia Jiménez of Herrick Feinstein gave a terrific talk about issues related to Cuba, and pointed out that claims concerning expropriations by the Cuban government of property owned by U.S. citizens (rather than Cubans) are not barred by the Act of State Doctrine.  Just last year, Boston College and the State Department had a strange pas de deux about whether to take loans from Cuba.  So while a Soviet or Cuban citizen who lost their property to the revolutionary government cannot not sue in the United States (the best example is the Konowaloff cases in Connecticut and New York), an American can by virtue of a specific statute (the “Second Hickenlooper Amendment”).  Since Cuba (and countries like Iran and North Korea) have essentially no commercial relationship directly with the United States, the loan of a cultural artifact could be the sole commercial activity that would warrant jurisdiction.

Based on all this, I’m prepared to change my mind and say that the law is probably a bad idea.  I do not believe that it is a parade of horribles or a license to import stolen art.  It is not, and as long as there is IFSA—which I firmly believe there should be to encourage cultural exchange—potentially stolen art is going to be in the U.S. temporarily.  But since it is already so limited to a rare circumstance, and since I can see Cuba in particular being a big issue in the coming years, it’s probably best if it meets the fate of its predecessors.

A final word about the possible effect on well-known cases.  As we have discussed at length in the past, the Chabad case against Russia has already resulted in a final judgment that Russia has defied.  This law cannot change that, and indeed the presence of IFSA undercuts Russia’s most oft-stated rationale for its ongoing embargo of loans to the U.S.  That is, Russia’s claim that it won’t lend into the States because it is worried the objects will be seized to satisfy the Chabad judgment is a canard.  The plaintiffs could not do so if they wanted, and have laudably and repeatedly said they have no intention of trying.  Since Russia isn’t loaning anything into the States right now, this bill would not affect what it already is not doing.  And since it’s anyone’s guess what diplomacy, if any, is going on to resolve that case, I don’t think it justifies a position one way or another as to this bill.

In any event, as stated, I do not expect this bill will become law.  The Association of Art Museum Directors lobbied for its passage the first time around, and it never even got a vote in the Senate.  It’s true that it was passed by the House earlier in the legislative calendar and not in an election year, but hard to forecast beyond that.  The extent of commentary seems universally opposed, thus far.

District Court Dismisses Cassirer Claim for Pissarro against Thyssen Bornemisza Collection by Applying Spanish Law of Adverse Possession

Posted in Foreign Sovereign Immunities, Museums, Restitution, World War II

One of the longest running art restitution litigations in the United States has been dismissed for a second time, with another appeal likely to follow.  The heirs of Lilly Cassirer Neubauer have been pursuing the return of Camille Pissarro’s Rue St. Honoré, après-midi, êffet de pluie from the Thyssen-Bornemisza Collection in Madrid for more than ten years, but on June 4, 2015 the U.S. District Court in Los Angeles ruled that the Spanish museum has acquired full title to the painting by adverse possession.  The key aspect of the decision is the court’s resolution of the choice of law question, namely, should California law or Spanish law apply to the question of who owns the painting?  After a lengthy analysis the court determined that Spanish law applies, and that the museum has possessed the painting long enough to have become the owner regardless of the fact that it was sold under duress.  So now a case that has already been to the Ninth Circuit Court of Appeals twice will almost certainly head back a third time.  The court concluded its decision by appealing to the parties to “pause, reflect, and consider whether it would be appropriate to work towards a mutually-agreeable resolution of this action, in light of Spain’s acceptance of the Washington Conference Principles and the Terezin Declaration, and, specifically, its commitment to achieve “just and fair solutions” for victims of Nazi persecution.”  But it is hard to see why that would happen.  Notwithstanding the dictates of the Washington Principles, the Collection has been quite content to resist the claim.  Now that it has won, it is hard to imagine it suddenly taking a different view.

pissarro-painting-nazi-20131211-001

Lilly Cassirer Neubauer was a German Jew who inherited the Pissarro in 1926.  There was no dispute of fact in the decision that she was subjected to persecution as such after 1933.  In 1939, she was forced to sell the painting to Jakob Schweidwimmer, a Nazi art appraiser.  She was “paid” a token amount far below value (roughly $360) into a blocked account that she could not access (just as the Welfenschatz consortium was “paid”).  Lilly survived the war but the location of the painting was unknown.   Baron Hans-Heinrich Thyssen- Bornemisza purchased the painting in 1976 through a New York dealer, Stephen Hahn, for $275,000.  Thyssen-Bornemisza’s collection was eventually sold to the Kingdom of Spain, and the painting has been on display at the museum bearing his name since it opened in 1992.  Claude Cassirer, Lilly’s heir, learned of its location in 2000 and began to seek its return, eventually filing suit in California in 2005.  The case relied on the same “expropriation exception” to sovereign immunity whose applicability to Nazi-looting claims the Supreme Court confirmed in 2004 in Altmann v Republic of Austria, and which has been the basis for numerous cases since.  Where the claim concerns rights in property taken in violation of international law, and the sovereign defendant or its instrumentality are engaged in commercial activity in the U.S., the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605 (FSIA) provides jurisdiction.

The museum initially challenged the applicability of the FSIA, but the Ninth Circuit upheld jurisdiction in 2012, holding that the fact that Spain was not the complicit party in the expropriation (meaning Spain did not commit any crime in 1939 against Cassirer, Nazi Germany did) did not matter.  Rather, Spain and its instrumentality are sovereign defendants, and the other requirements of the statute were met.

While all this was going on, California passed in 2010 the second of two amendments to its statute of limitations.  The earlier abolition of any limitation on Holocaust era claims (California Code of Civil Procedure § 354.3) was struck down by the Ninth Circuit in the Von Saher case (by Jacques Goudstikker heir Marei von Saher) in 2010 as interfering with the foreign affairs doctrine of the United States.  California then amended the statute of limitations to be six years for any claim related to art (regardless of whether it was Nazi-looted art).  The Cassirer case was dismissed in 2012 by this same District Court, however, because the District Court found that the six-year limitation was still a foreign affairs impairment.  But in 2013 the Ninth Circuit reversed, finding the six-year statute of limitations consistent with the United States’ foreign affairs.

Last week’s decision was on the Thyssen-Bornemisza Collection’s motion for summary judgment.  A motion for summary judgment can be granted when a legal result is compelled by the undisputed material facts.  If material facts on which the result will turn are in dispute, summary judgment is inappropriate.  If the facts that are in dispute are not material to the legal question, then summary judgment can be grated.  So, for example, if the case is about who is at fault for a traffic accident and one side says the light was green but the other says it was red, summary judgment is unwarranted because that fact is material to who had the legal right to drive through the intersection.  If, on the other hand, the parties agree that the light was green, but disagree about the temperature that day, summary judgment is appropriate because that fact is irrelevant to the legal question.

Here, the court treated the fact of the painting’s Nazi era theft and the sequence by which it came to be in Spain as undisputed.  The remaining legal question is who owns it.  But to answer that question, the court had to decide which law applies.  This analysis happens all the time, particularly in federal court.  The Restatement (Second) of Conflict of Laws (a summary of the prevailing view across jurisdictions) § 222 sets forth the general choice-of-law principle applicable to interests in both real and personal property.  The factors relevant to the determination of which state has the most significant relationship to the “thing and the parties” include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, the protection of justified expectations, the basic policies underlying the particular field of law, certainty, predictability and uniformity of result, and ease in the determination and application of the law to be applied.

The court addressed these factors at great length, ultimately concluding that both California and Spain had significant interests in the outcome of the dispute, but that Spain’s was more significant.  While the court was cognizant of the plaintiffs’ relationship to California, it was unconvinced that the painting itself had such a relationship.  The telling passage was:

Although California has a fundamental interest in protecting its residents and specifically has an interest in protecting its residents claiming to be rightful owners of stolen art, that interest is far less significant where the original victim did not reside in California, where the unlawful taking did not occur within its borders, and where the defendant and the entity from which the defendant purchased the property were not located in California.

This conclusion effectively decided the case.  California does not allow adverse possession of personal property, while Spain does.  Adverse possession is one of those concepts about which most first-year law students say, “wait, what?”  It a nutshell (and more often in real estate), if you possess property that is not yours in a sufficiently obvious way for a long enough period of time, you become the legal owner.  It is more disfavored with personal property because of the obvious incentive for concealment; even though one has to adversely possess in a public way, it can create harder questions to resolve than whether a person was occupying a certain plot of land.

In any event, Spain does allow the doctrine, and the court concluded that the Collection had displayed the painting in a sufficiently public way that a true owner would have been on notice and made a claim before the time limit expired.

The adverse possession ruling decided the case, so the language of the opinion afterwards about the California statute of limitations should be considered dicta (opinion not essential to the holding).  But it is interesting to note that the court gave a sweeping and dismissive treatment of the revised six-year statute of limitations, arguing that it constituted a deprivation of property without due process.  This aspect of the decision is hastily composed and not terribly well-reasoned; citing an 1885 case that concludes (uncontroversially) that an after-the-fact amendment to a statute of limitations may deprive the possessor of its property (since absent the amendment, they would face no claim), the court concluded that this statute does just that.  But the logic of this paragraph of the opinion relies entirely on the conclusion that the Collection had adversely possessed the painting by the time the statute of limitations was extended, meaning the statute of limitations is irrelevant.

The opinion is a devastating setback for the claimants, for now at least.  To carry on they will have to convince the Ninth Circuit first and foremost that California, not Spanish, law should have been applied.  And that certainly will not happen any time soon.  I will follow up shortly with some thoughts about what impact this decision may, or may not, have more broadly.

Richard Prince, Social Media and the Public Domain: Reports of Copyright’s Demise are Premature

Posted in Copyright, Fair Use

Reactions to the Richard Prince Instagram story continue to filter in, and highlight the perpetual confusion between what is publicly available and what is in the public domain.  They are not the same thing, with important legal consequences.

The most prominent response to date has come from the “Suicide Girls,” who responded to word that Prince had used a photograph from their Instagram account by announcing that they would be selling their own versions (with the final word under comments) for $90 rather than $90,000.

suicide girls

The Suicide Girls describe themselves as “an alternative to the mainstream media’s obsession with the silicone enhanced Barbie dolls and the incredible shrinking starlets.”   Founder “Missy” told ArtNet:

While I understand the conversation that he’s trying to start, and that we’re all talking about copyright and art in the digital age, I feel like $90,000 is a crazy amount to spend. . . He’s starting this conversation while utilizing people that are from our sort of scene—girls that are beautiful and unique. They could benefit from $90,000 dollars. None of them could afford that. So we wanted to create something that they could afford.

Serve, returned.

This story touches a refrain that resurfaces every few years: how does new technology affect existing concepts of property and copyright law?  In fact, in many ways they represent an even greater risk because a single infringement can quickly be multiplied exponentially.  An image that can be captured can be copied if there is a defensible fair use, of which comment and criticism are the easiest to identify.  It is a bit tired to suggest that somehow emerging media have rendered copyright obsolete.  Yet the misunderstanding persists.  Partly it comes from the creative ethos of social media, in which sharing and appropriation are essential components.  That leads to overstatements like this one, from critic Jerry Saltz of New York magazine on the site vulture.com:

Never mind that all these images shadow us everywhere now and already exist in a public uncopyrighted digital realm. . . .As for him “stealing other people’s pictures,” my view of an artist using other people’s Instagram pics is no different than an artist using any other material. By now, we have to agree that images — even digital ones — are materials, and artists use materials to do what they do. Period. In my way of thinking, too many artists are too wed to woefully outmoded copyright notions – laws that go against them in almost every case.

These images are not uncopyrighted.  Instagram photos are not in the public domain.  The public domain applies to works over which no copyright exists.  The ease with which something can be copied has nothing to do with whether it is in the public domain.  If what Prince is doing is acceptable it is as a fair use under the statute, not because of a lack of copyright in the first instance.  The shadow of Prince v. Cariou is long indeed, but it hardly means that copyright is outmoded, and the suggestion that copyright goes against the source artists “in almost every case” is not true, and certainly premature.  Saltz makes an eloquent case for the artistic value of what Prince is doing, but it does not wash away the copyright law.

The point here is not that Prince will be found liable for infringement; in the grand scheme, he probably won’t.  But assuming that any image on the Internet is fair game for any other use because Prince can do what he does is to take a huge risk, and one that should not be done cavalierly.  Copyright may seem outdated, but it’s the law, and Richard Prince probably won’t be there to defend you when that time comes.

Fair Use Fool me Twice, Shame on Me—Richard Prince Goes Trolling on Instagram But May Have a More Pedestrian Problem

Posted in Copyright, Fair Use, Intellectual Property

Few art law cases have received as much attention as that of Richard Prince and his dispute with Patrick Cariou over the latter’s Yes, Rasta photographs that Prince altered, defaced, and otherwise rearranged for his Canal Zone series.  Prince has now garnered renewed attention for his appropriation of Instagram images in a set of works he has been selling at a Gagosian Gallery show called “New Portraits” (and in various other venues over the last few months).  He escaped liability for infringement of Cariou’s pictures (though the case settled after remand; several infringement claims were still in play when the parties settled).  Can he do so again?  If this recent effort is not infringement, it certainly begs the question of whether the fair use exception has swallowed the rule.  Lastly, Instagram itself may have prohibited the entire exercise in its terms of use, a possible avenue to short-circuit the entire copyright exercise.

In 2011, Cariou sued Prince and won a permanent injunction and an order that Prince’s works be impounded and destroyed.  In 2013 the Second Circuit reversed, focusing on the “purpose and character” factor of § 107 of the Copyright Act, or what has become known as the transformativeness test, particularly with respect to visual art.  The Second Circuit found as a matter of law that twenty five of the works by Prince were clearly transformative.  They contrast “crude and jarring” appearance with Cariou’s “serene” photographs of “natural beauty”, as well as palette, scale, and media differences.  I analyzed the 2013 opinion here, which I won’t repeat now.  But the takeaways were that Prince’s total disinterest in his own meaning, and the troubling reliance on Prince’s upper market clientele, threw the question wide open in a way that very few analysts and commentators find helpful.  Put another way (paraphrasing the Dread Pirate Roberts), anyone who tells you they know definitively what fair use is, is probably selling something.

Not terribly surprisingly, this is not the last word from Prince.  He is currently putting on a show that consists of other people’s Instagram photos, blown up to large wall size, sometimes with Prince’s comments below.  An example is here:

DoeDeere

This user DoeDeere was apparently already found by reporters, and she disclaimed any interested in pursuing Prince for infringement.  But what if someone else were so inclined?

At a basic level, Prince’s Second Circuit victory clears away the need to ask why he did any of this.  What of the transformation itself?.  It’s not clear if Prince actually logged into Instagram and made the comment post, or if the newer work is itself an alteration of the existing Instagram post.  That could make a great deal of difference.  If Prince took an existing image, let’s say of kittens, then added some sexualized comment, he would be certainly in the neighborhood of the Cariou decision logic, such as it is, from the standpoint of transformation (kittens are to pornography as Roy Orbison is to 2LiveCrew, or something like that).  But if all he did was print out a comment thread of which he was a part (within Instagram), he would have to argue that the original online comment was the visually transformative element, or that merely making a larger printout suffices.  That would effectively abolish copyright on the Internet, which seems unlikely.

There is little question that Prince is the agent provocateur in all this, and playfulness is an important part of free expression, whatever you think of him.  And given the scale and publicity, there may well yet be litigation by one or more of the original photographers under copyright.  At the same time, photographers in particular feel under siege and unsure of how much they can protect their work.  But something almost no one thinks about because of their ubiquity, is the terms one agrees to even by venturing onto social media.  The Instagram Terms of Use state (bold added):
Rights

5.          The Service contains content owned or licensed by Instagram (“Instagram Content”). Instagram Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Instagram, Instagram owns and retains all rights in the Instagram Content and the Service. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Instagram Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Instagram Content.

That is seemingly precisely what Prince has done.  So even if he could claim fair use against the original photographer successfully, he may not be able to escape an old-fashioned contract third-party beneficiary argument.  If Prince used Instagram (and a review of the site indicates that “@richardprince1234” is a real user), he agreed to its terms of use, and the other content providers could be the beneficiaries of that agreement (not to prepare derivative works).

Prince will clearly continue to push the envelope, so further twists and turns are all but certain.

REMINDER: Art Crime and Cultural Heritage: Fakes, Forgeries, and Looted and Stolen Art at NYU June 4-6

Posted in Events, Restitution

I am looking forward to next week’s Art Crime and Cultural Heritage symposium at NYU next month.  I will be on a panel discussing the Gurlitt case moderated by Mel Urbach, along with Chris Marinello and Wesley Fisher.  The program is as follows, and promises to be a fascinating event.

Thursday, June 4, 2015

9:00 a.m.−12:45 p.m.

Theft and Fraud

Opening Remarks

  • Jane C.H. Jacob, President, Jacob Fine Art, Inc.; Co-Founder, Art Crime Conference
  • Christopher A. Marinello, CEO & Founder, Art Recovery Group Ltd; Co-Founder, Art Crime Conference
  • Alice Farren-Bradley, Director of Claims & Recoveries, Art Recovery Group Ltd; Co-Founder, Art Crime Conference; Moderator, Museum Security Network

Keynote: The Theft and Return of Renoir’s On the Shore of the Seine

  • Doreen Bolger, Director, Baltimore Museum of Art; oversaw the return of the stolen Renoir painting Paysage bords de Seine to the museum’s collection in 2014
  • Marla Diaz, General Counsel, Baltimore Museum of Art; lead attorney in the negotiation for the return of Paysage bords de Seine to the Baltimore Museum of Art

Discussion: Networks and Freeports: How Stolen Property Can Circulate

  • Sandra Cobden, Senior Vice President and General Counsel, Christie’s Inc.
  • Daniel Brazier, Special Agent, U.S. Department of Homeland Security, Homeland Security Investigations (HSI)
  • Simon Hornby, President, Art Services, Crozier Fine Arts Inc.
  • James McAndrew, Grundfeld Desiderio Lebowitz Silverman & Klestadt LLP

Panel: Non-Fine Art Issues: How Rigorously Are Works Checked Before Sale?

Moderator

  • Jane Levine, Worldwide Director of Compliance, Sotheby’s

Speakers

  • W. Graham Arader, III, Founder & Owner, Arader Galleries; specializes in antique works on paper, paintings, and rare books
  • Patricia J. Graham, Founder, Asian Art Research & Appraisals; Research Associate, Center for East Asian Studies, University of Kansas; author, Japanese Design: Art, Aesthetics, & Culture
  • Jonathan Illari, Vice President and General Counsel, Auctionata; former Counsel, Bonhams

2:00−5:30 p.m.

Theft and Fraud

Panel: Due Diligence and Professional Ethics in the Art Market

Moderator

  • Christopher A. Marinello, CEO & Founder, Art Recovery Group Ltd; Co-Founder, Art Crime Conference

Speakers

  • Megan Fontanella, Associate Curator, Collections and Provenance, Guggenheim Museum
  • Megan Noh, Assistant General Counsel, Bonhams; supports all U.S. specialist and business departments, with a particular emphasis on the day-to-day needs of the New York office, including claims, transactional and compliance work

Panel: Consignment Fraud: The New Theft?

Moderator

  • Kevin Ray, Counsel, Art and Cultural Heritage Law, Business Reorganization & Financial Restructuring, Greenberg Traurig LLP

Speaker

  • David Goldstein, Attorney, Rabinowitz, Boudin, Standard, Krinsky & Lieberman PC; litigator in disputes over artworks, trade secret misappropriation, and copyright infringement; co-author of Creating an Equitable Balance Between the Rights of Former Owners and Good Faith Purchasers of Stolen Art

Closing Discussions and Possible Solutions

Moderator

  • Christopher Robinson, Partner, Davis Wright Tremaine LLP; practices intellectual property and art law

Speakers

  • Amy Adler, Emily Kempin Professor of Law, NYU School of Law
  • Judith Pearson, President and Director, ARIS Title Insurance Corporation (ARIS)
  • Jordan Arnold, Managing Director and Head of Art Risk Advisory at K2 Intelligence; former art crime prosecutor at the Manhattan District Attorney’s Office

6:30−8:30 p.m.

Reception

Sponsored by Arader Galleries

Friday, June 5, 2015

9:00 a.m.−12:45 p.m.

Looted Cultural Property

Opening Remarks

  • Jane C.H. Jacob, President, Jacob Fine Art, Inc.; Co-Founder, Art Crime Conference
  • Alice Farren-Bradley, Director of Claims & Recoveries, Art Recovery Group Ltd; Co-Founder, Art Crime Conference; Moderator, Museum Security Network

Keynote: The Monuments Men

  • T/4 Sgt. Harry Ettlinger, served in the Monuments, Fine Arts, and Archives (MFAA) program in World War II, better known as the Monuments Men; author of Ein Amerikaner: Anecdotes from the Life of Harry Ettlinger

Discussion: The Gurlitt Collection: Law vs. Ethics

Moderator

  • Mel Urbach, Esq., Klein & Solomon, LLP, New York, NY; represents the heirs of Alfred Flechtheim and is a pioneer in art restitution; negotiated return of Kokoschka painting and other work

Speakers

  • Christopher A. Marinello, CEO & Founder, Art Recovery Group Ltd; Co-Founder, Art Crime Conference
  • Wesley Fisher, Director of Research, Conference on Jewish Material Claims Against Germany; Executive Director, Victim List Project of the Swiss Banks Settlement
  • Nicholas O’Donnell, Litigation Partner, Sullivan & Worcester LLP; Editor, Art Law Report

Panel: The Plunder and Protection of Native American Culture

Moderator

  • Tim Carpenter, Special Agent, Federal Bureau of Investigation (FBI); involved in the largest restitution case of Native American artifacts in the United States, recovering 5,000 objects to date

Speakers

  • Pierre Ciric, Founder, Ciric Law Firm PLLC; Co-Founder, Holocaust Art Restitution Project (HARP)
  • Colleen Medicine, Cultural Repatriation Assistant, Sault Ste. Marie Tribe of Chippewa Indians, MI

2:00−5:30 p.m.

Looted Cultural Property

Discussion: Legal Obligations of Museums

Moderator

  • Karl Geercken, Partner, Alston & Bird LLP; counsel for Leopold Museum, Vienna, in the Schiele Portrait of Walley case

Speakers

  • MaryKate Cleary, Collections Specialist, Painting and Sculpture, Museum of Modern Art
  • Holly Keris, Chief Curator, Cummer Museum of Art & Gardens

Panel: Cultural Heritage Destruction and the Illicit Trade

Moderator

  • Peter Herdrich, Founding Partner, The Heritas Group; formerly CEO, Archaeological Institute of America (AIA)

Speakers

  • Amr Al Azm, Associate Professor, Middle East History and Anthropology, Shawnee State University; former Director, Scientific and Conservation Laboratories, General Department of Antiquities and Museums, Syria
  • Edouard Planche, Programme Specialist, Cultural Heritage Protection Treaties Section, UNESCO

Closing Discussions and Possible Solutions

Moderator

  • Alice Farren-Bradley, Director of Claims & Recoveries, Art Recovery Group Ltd; Co-Founder, Art Crime Conference; Moderator, Museum Security Network

Speakers

  • Laurie Rush, Army Archaeologist, Fort Drum, NY; Board Member, U.S. Committee of the Blue Shield
  • Michael Danti, Assistant Professor of Archaeology, Boston University; Co-Director, ASOR Syrian Heritage Initiative
  • Mari-Claudia Jiménez, Partner, Herrick Feinstein LLP; partner in the Art Law practice group

6:30−8:30 p.m.

Reception

Sponsored by Bonhams

Saturday, June 6, 2015

9:00 a.m.−12:45 p.m.

Fakes and Forgeries

Opening Remarks

  • Jane C.H. Jacob, President, Jacob Fine Art, Inc.; Co-Founder, Art Crime Conference
  • Christopher A. Marinello, CEO & Founder, Art Recovery Group Ltd; Co-Founder, Art Crime Conference

Keynote: Problems in the Russian Art Market

  • James Butterwick, Founder & Owner, Butterwick Gallery LLC; specializes in Russian avant-garde

Keynote: Art Crime Scene: Forger Talks about Forgery

  • Ken Perenyi, Renowned art forger whose works have passed through major auction houses and galleries in New York and London as original works; author of Caveat Emptor

Panel: Expert Immunity

Moderator

  • John Cahill, Attorney, Cahill Partners LLP; formerly General Counsel, Phillips de Pury & Co.; Chair, New York City Bar Association, Art Law Committee

Speakers

  • Sharon Flescher, Executive Director, International Foundation for Art Research (IFAR); Editor-in-Chief, IFAR Journal
  • Betty Little, New York State Senator, 45th District; sponsor of amendment to the New York Arts & Cultural Affairs Law enhancing protections for art authenticators
  • Steven R. Schindler, Founder and Partner, Schindler Cohen & Hochman LLP; Art Business faculty, Sotheby’s Institute of Art, New York

2:00−5:30 p.m.

Fakes and Forgeries

Discussion: Challenges to Cases in which Experts Present False Testimony

Speakers

  • James Martin, Principal, Orion Analytical LLC, a materials analysis and consulting firm specializing in art, cultural property, and collectables
  • Bonnie Magness-Gardiner, Program Manager, Art Theft Program (National Stolen Art File and Art Crime Team), Federal Bureau of Investigation (FBI)

Panel: Protecting Jackson Pollock

Moderator

  • Judd Grossman, Founder and Managing Partner, Grossman LLP

Speakers

  • Francis O’Connor, Jackson Pollock scholar and lead author of Jackson Pollock’s catalogue raisonné
  • Meridith Savona, Special Agent, Art Theft Program (National Stolen Art File and Art Crime Team), Federal Bureau of Investigation (FBI)

Closing Discussions and Possible Solutions

Moderator

  • Jane C.H. Jacob, President, Jacob Fine Art, Inc.; Co-Founder, Art Crime Conference

Speakers

  • Eleonora Nagy, Conservator, Modern and Contemporary Sculpture; Director, Modern Sculpture Conservation LLC, New York; Conservator, three-dimensional works of art, Whitney Museum of American Art; Advisory Committee for Conservation and Restoration (ACCR) and Judd Foundation
  • Spencer Tomkins, President, Spencer Tomkins Fine Art Inc.; art consultant with over 25 years of experience in the international art market working with private and corporate collectors; specializes in American and European post-war and contemporary art
  • William L Charron, Partner and Co-Chair of Art Law Practice, Pryor Cashman LLP; Counsel, ARIS Title Insurance Corporation (ARIS)