The Art Law Report

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

Changes in U.S. Law Regarding Cuba Will Affect the Arts

Posted in Art Fairs, Auctions, Foreign Affairs, Galleries

This week’s biggest news story (apart from Above the Law’s Awesome Law Blogs of 2014) is the historic reopening of diplomatic relations between the United States and Cuba after more than fifty years.  Like a coda to the end of the Cold War, we all found ourselves watching the President of the United States describing how there will once again be a U.S. embassy in Cuba.  For those of us who have not been alive as long as diplomatic ties have been severed and the Castro regime has been in place, it was a remarkable sight indeed.

Some commenters have started to pose the corollary question how this will impact the arts.  The Wall Street Journal considers the topic hereArtNet has a good review of the existing arts scene in Cuba, and argues that Cuban artists are already traveling abroad more frequently that they used to, and apart from U.S. citizens, art patrons are free to and frequently do travel to Cuba as tourists.  According to Gabriela Rangel, visual arts director of the Americas Society, “The Havana Biennial today is as well attended as [Art] Basel Miami Beach.”  Perhaps, and though since the second Bush administration there has been an easing of restrictions for educational and charitable trips to Cuba that has allowed more Americans to set foot in Cuba than was legal a generation ago, we are a long ways right now from unfettered arts tourism.

So what will change going forward?  First and foremost, the economic embargo of Cuba has not ended—only Congress can do that.  U.S. citizens are not free to travel to Cuba without qualification.  In broad strokes, the U.S. has committed to: reestablishing diplomatic relations for the first time since 1961; to open an embassy; to collaborate on counter-narcotics and human trafficking prevention; and to facilitate and permit greater financial remittances (the countries’ financial systems are not linked in the ways that U.S. banks are to other foreign nations).  The State Department will also review Cuba’s presence on the State Sponsor of Terrorism List, a dubious distinction it currently shares only with Iran, Syria, and Sudan (and perhaps North Korea, after this week).   

Commercially, the changes are unquestionably significant but equally clearly intended to be gradual.  From the White House fact sheet:

General licenses will be made available for all authorized travelers in the following existing categories: (1) family visits; (2) official business of the U.S. government, foreign governments, and certain intergovernmental organizations; (3) journalistic activity; (4) professional research and professional meetings; (5) educational activities; (6) religious activities; (7) public performances, clinics, workshops, athletic and other competitions, and exhibitions; (8) support for the Cuban people; (9) humanitarian projects; (10) activities of private foundations or research or educational institutes; (11) exportation, importation, or transmission of information or information materials; and (12) certain export transactions that may be considered for authorization under existing regulations and guidelines.

Travelers in the 12 categories of travel to Cuba authorized by law will be able to make arrangements through any service provider that complies with the U.S. Treasury’s Office of Foreign Assets Control (OFAC) regulations governing travel services to Cuba, and general licenses will authorize provision of such services.

I expect the upshot of this to be a wave of interest in visiting the arts in Cuba, and coupled with increased economic freedom (for Americans, who are prohibited currently from spending U.S. dollars in Cuba, but who face challenges exchanging U.S. dollars for Cuban pesos even when there legally), of investment in the arts.  Plenty of Americans travel to Cuba through third countries unconcerned about the risk that their visit will be detected upon their return to the U.S., but most people are not going to put themselves in that kind of jeopardy.  And educational visits have flourished in the last decade, but are still cumbersome compared to other travel and usually have few slots relative to participants’ interest. 

This will likely now change, even compared to the recent levels of exchange described by Rangel, above.  Contemporary art in particular is nothing if not focused on the new, and I’m sure that the mere fact of previous unavailability will spike the cache of Cuban art if more people are able to go see and/or buy it.

Here’s to hoping for a rising trend of economic and cultural exchange for the future. 

The Art Law Report Named to Above the Law’s 12 Awesome Law Blogs of 2014

Posted in Authentication, First Amendment, Gurlitt Collection, Restitution

I was pleasantly surprised to learn today that Above the Law had published an article entitled “The 12 Awesome Law Blogs of 2014,” and right there at Number 1 was none other than the Art Law Report.  As Colin O’Keefe and Cara McDonald wrote:

Spurred by the discovery of a trove of Nazi-looted art in Munich, this blog was on a roll in 2014, covering all the recent developments in the situation. Offering insight on that story and more, the blog — as good as niche-oriented publications come — examines all the legal angles associated with art, from ownership to intellectual property to the First Amendment.

Well that was nice.  It’s a reminder that there are articulate, well-researched law blogs out there that are examining any topic of interest and in real time (present company excluded).  It’s no Bob Loblaw’s Law Blog, but it will have to do.

Kudos as well to fellow honorees Trademarkology by Stites & Harbison, Inside Privacy by Covington & Burling, Canna Law Blog by Harris Moure, (edited by Hilary Bricken and Canna Law), Energy and the Law, by Gray, Reed & McGraw, P.C., edited & written by Charles Sartain, The D&O Diary by Kevin LaCroixof R-T Specialty, LLC, All About Advertising Law, by Venable editors Amy Mudge and Randy Shaheen, BeLabor the Point, by Stearns Weaver Miller Weissler Alhadeff & Stitterson, the Auto Industry Blog by Foley & Lardner, edited by Omar A. Lucia and Jeffrey A. Soble, Retail Law Advisor, by Goulston & Storrs, edited by the Goulston & Storrs Retail Group, Cady Bar the Door, by Brooks Pierce, edited by David Smyth, and Cruise Law News, by Jim Walker of Walker O’Neill.

I urge you to visit them all.

Art Finance and Investment, London Recap and January 26, 2015 Geneva Preview

Posted in Events

Last month we posted word of an exciting two-part series hosted by The Art Law Foundation.  The first session of “Art Finance and Law” took place on November 26, 2014 in London.  The Thanksgiving holiday kept me from attending, but a thorough recap has been written by Rebecca Hawkins at Private Art Investor of the day’s conference, entitled “Risk, Rules and Opportunities in Art Investment.”  Hawkins writes, “The key themes that reoccurred throughout the day’s discussions were those of regulation and reputation.”  To put it another way, the conference seems to have focused on the timely issues of where art fits into financial planning and secured finance as an asset class, and on a discussion on the proper role of regulation (there being a decided lack of it, compared to other asset classes in the same order of magnitude).  The conference also made the presentations themselves available, here.  The recap reminded me that I wished I had been able to attend.

Happily, the program for part two is now available, and it likewise looks like a worthwhile event.  To be held at the University of Geneva on January 26, 2015, sponsors are borro, Falcon Fine Art, Oblyon Art Business Intelligence, Lalive, and Sotheby’s, along with media partners The Art Newspaper, Private Art Investor and Bilan.  Registration is now available, here

I hope to make it, and to see you there.

The schedule is as follows:

Accueil | Introduction 

Pierre Gabus, président de la Fondation pour le droit de l’art; Sandrine Giroud, directrice de la Fondation pour le droit de l’art

L’art: une classe d’actifs comme les autres?  Works of art: a common asset class?

Présidence | Chair: Prof. Luc Thévenoz, Université de Genève

Cette session examinera les spécificités des fonds d’investissement en matière d’art, la titrisation et autres produits financiers concernant des œuvres d’art, ainsi que les facilités de crédit garanties par des œuvres d’art.

This session will focus on the specificities of art funds, the securitization of works of art and their use as an asset class as well as credit facilities secured by works of art.

Table ronde | Round table

Frédéric Dawance, Banque Lombard Odier & Cie SA; Philipp Fischer, Abels Avocats; Jan Prasens, Sotheby’s; Philip Hoffman, The Fine Art Fund

Art finance: aspects fiscaux  Art finance: tax aspects

James Carleton, Farrer & Co LLP; Prof. Xavier Oberson, Université de Genève

Art finance: risques & opportunités  Art finance: risks & opportunities

Présidence | Chair: Myret Zaki, Bilan

Nos experts examinerons les questions de compliance dans le marché de l’art: compliance bancaire, provenance et authentification. Faut-il une règlementation accrue? Quel  futur pour le marché de l’art?

Our experts will look at issues of compliance in the art market: banking compliance, provenance, authentication. A need for more regulation?  What future for the art mart market?

Table ronde | Round table

Yan Walther, Fine Arts Expert Institute; Fabian Bocart, Tutela Capital; Yves Bouvier, Natural Le Coultre; Manuela de Kerchove, Schroders; Alexandre Quiquerez, Université Lyon

Closing

Cocktail

Gallery 49® Continues to Break Ground with Natvar Bhavsar: RANG RASA (Transcendent Color)

Posted in Galleries

Tower 49 in Manhattan premiered an exhibition in October that underscores its exciting collaboration of real estate and art.  A unique commercial property on 49th Street between 5th Avenue and Madison Avenue, Tower 49 has always been for most New Yorkers a first class office space.

This year, Tower 49 appointed Art Director Ai Kato to spearhead a revolutionary idea: the office tower as an art gallery.  Gallery 49® offers high ceilings, and expansive walls, ideal in displaying art of a certain scale.  A more intimate space is also included on the 24th floor.  It is a unique combination of commerce and culture. This is an idea that has received recent attention in the Economist, and elsewhere, but Gallery 49® was out in front on this one.

The current show, Natvar Bhavsar: RANG RASA (Transcendent Color), takes advantage of both spaces.  The soaring and luminous canvases spotlight pigments sprinkled over and/or covered by layers of liquid binders.  It opened with a reception in October, and more events are planned soon.

The full exhibition description, and images, is reprinted with permission below.

Anyone interested in further details should contact Ms. Kato at aikato@tower49nyc.com.

 

Natvar Bhavsar: RANG RASA (Transcendent Color) 

For more than five decades, Indian-born, New York-based artist, Natvar Bhavsar has been exploring the unlimited force, spirituality, and impetus that color can affect through its variegated uses and applications on the two-dimensional surface. Born in 1934 in Gothava, a small village in the northwestern coastal state of Gujarat, Bhavsar was drawn early in his childhood to making art, earning diplomas from J.J. School of Art, Bombay, in 1958 and 1959, followed by a Bachelor of Arts degree in English Literature from Gujarat University in 1960.  In 1965, he completed his education by earning his Master of Fine Arts degree from the University of Pennsylvania Graduate School of Fine Arts.

Bhasvar is best known for his large-scale contemplative paintings imbued with luminous, expansive fields of color. His preoccupations with the atmospheric forces of nature have led to the creation of an ongoing contemplative body of work featuring spatial images filled with vapory passages and amorphous shapes that allude to the transcendent in all things. These qualities are prominently evidenced in his monumental work THEER-A-THEER-A (1970), exhibited publicly at Tower49 Gallery for the first time in decades.

Early exposure to Indian folk-art making practices, along with the inspiration drawn from the ancient art of his country, forged a spiritual kinship with the Abstract Expressionist and Color Field painting movements the artist encountered when he came to the United States. These combined influences have led to a visual language and oeuvre that is uniquely his own.

Employing diverse techniques culled from the Indian tradition of Rangoli, Bhavsar paints in an improvisational manner with his working surfaces laid out on the floor so that he can manipulate, them from all sides. He begins by soaking the canvas with acrylic-based liquid binders, and then through a sifting process akin to sandpainting, layers of fine, concentrated pigments—sometimes as many as eighty— are sprinkled and dusted over the canvas (or paper).

Bhavsar’s works have been shown internationally since the 1970s and have been the subject of numerous solo and group exhibitions, including a forty-year retrospective at the Jane Voorhees Zimmerli Art Museum at Rutgers University, New Brunswick, New Jersey in 2007. Other public venues include the Wichita Art Museum, Kansas; the National Art Gallery, Canberra, Australia; the Indianapolis Museum of Art, Indiana; and the Jewish Museum, New York, amongst others. His works are held in numerous private and permanent public collections including the Metropolitan Museum of Art and the Solomon R. Guggenheim Museum, New York, as well as the Philadelphia Museum of Art, Pennsylvania.

He has been a recipient of several prestigious awards and grants, including the Barnett and Annalee Newman Foundation Grant: Award for Lifetime Creative Contributions in the Arts (2010); the John Simon Guggenheim Memorial Foundation Fellowship (1975-76); and the John D. Rockefeller III Fund Fellowship (1965-66). In 2000, he was invited as a Cultural Leader to participate in the World Economic Forum in Davos, Switzerland and two years later in New York.  In 1980 and 1983, he was a participant in Executive Seminars at the Aspen Institute for Humanistic Studies in Colorado.

Natvar Bhavsar: RANG RASA (Transcendent Color) has been organized by Ai Kato, Director of Tower49 Gallery, and includes seventeen large-scale paintings on canvas and six works on paper works spanning the years 1970 to 2014. The exhibition continues on the 24th floor galleries. The exhibition catalogue, available at the front desk, features an essay by poet, novelist, and art critic Carter Ratcliff.

 

Parthenon Sculpture Loan to Russia: Legal and Diplomatic Fallout Could be Far-Reaching

Posted in Cultural Property, Museums, Restitution, Uncategorized

The British Museum has announced that it has loaned to Russia one of the sculptures from the Parthenon that widely known as the “Elgin Marbles” after Thomas Bruce, the 7th Earl of Elgin who oversaw their removal from then-Ottoman occupied Greece in 1811-12.  The State Hermitage Museum in St. Petersburg is the recipient of the loan, specifically, the sculpture of the river god Ilissos from the west pediment of the Parthenon. 

As the British Museum website describes it, the sculpture

figures in the corners of the triangular composition perhaps represent the rivers of Attica. This figure, from the left-hand corner, is thought to personify the river Ilissos, by comparison with figures on the east pediment of the Temple of Zeus at Olympia; the Greek historian Pausanias names them as the local rivers there.  The naked youth’s languid form is well adapted to the raking angle of the pediment that framed him. He appears as if caught in the action of raising himself onto a rock. A piece of drapery hangs wet and clinging to his left arm.

The controversy around the Parthenon sculptures is complicated, but also simply stated: Greece maintains that the sculptures are Greek cultural heritage that was removed without the permission of the Greek people, and should be returned.  The articulation of the British position varies by how delicately the proponent wants to put it, but it ranges between some variation of the more tactful assertion that the marbles were exported with the permission of the then-recognized government (the Ottoman Empire) to the less-empathetic “too bad.” 

This dispute, of course, ranges in many forums and there are passionate advocates on both sides.  Before today, the most recent newsworthy development was the announcement that Greece had expanded its legal team to include Amal Alamuddin-Clooney, famous in the first instance as a human rights lawyer (and more recently as George Clooney’s wife).  Options being considered, it was said, including perhaps pursuing claims in the European Court of Human Rights.

For better or worse, however, the status quo has long prevailed.  The British Museum quite clearly has no intention of returning the sculptures, and it is not apparent that there are any legal mechanisms either in the UK or in Europe to compel Britain to change course.  Thus, the dispute has been primarily an ethical one.

This loan tips the equilibrium a little off balance.  In the first, instance, the travel of the sculpture takes it outside the territory of the UK for the first time in memory.  That necessarily lessens the physical control that Britain has long had on the sculptures.  Greece does not have any kind of judgment to enforce (so far as I know), but that will not necessarily matter.  Recall, most prominently, the Portrait of Wally case.  That painting was well known to claimants, who were frustrated by Austria’s refusal to return it.  It was the physical transfer to New York for a loan to the Museum of Modern Art that set off a chain reaction, even though the seizure was ultimately unsuccessful, that resulted in a major case and a significant settlement agreement.  Few saw that coming at the time. 

Cynically, the reason that Britain probably felt safe in this loan is the recipient: Russia.  Given Russia’s own cultural property policies and actions, it is almost unimaginable that Greece would find a sympathetic forum in Russia.  Lest anyone forget, Russia has been pursuing for more than three years an embargo of cultural artifact loans in retaliation for the judgment against to return the Chabad Library (and the tens of millions of dollars in contempt fines that have accrued for Russia’s defiance of that judgment).  Russia is not going to open that Pandora’s box.

So for now, the debate will likely remain on the ethics of the loan: should the British Museum be lending these objects at all?  Is cultural exchange an end in itself that justifies this?  Should other countries refuse Russia loans while it is doing the same?  These are hard questions with no easy answers.  But if Parthenon sculpture loans to other places follow, don’t be surprised if one of them ends up putting events beyond the parties’ control and becomes a game-changer.

Caveat Emptor: Dismissal is Affirmed of Perelman Lawsuit Against Gagosian Over Potential Resale of Koons Work

Posted in Galleries, Legislation

The intermediate appeals court in New York affirmed last week the dismissal of Ronald Perelman’s lawsuit against Larry Gagosian (the initial dismissal was earlier this year).  Although we did not analyze the underlying dismissal when it happened (Donn Zaretsky wrote a terrific recap at the time, here).  The result, while not terrible surprising at this point, does underscore some important points to remember about the parties’ rights and duties in an art transaction. 

The claim concerned the sale of a Jeff Koons work, that at the time of the agreement had not yet been created.  Perelman agreed to pay $4 million for it, in addition to a $12.6 million sculpture and a $10.5 million painting.  In the lawsuit, Perelman argued that the sculpture was actually worth more, but that Gagosian refused to let him (Perelman) resell it for a higher price because of a side agreement with Koons himself, such that Gagosian would have to pay the artist a higher commission if his work sold for a higher price.  Gagosian, for his part, filed a countervailing lawsuit arguing that Perelman had simply failed to pay. 

Perelman argued that in agreeing to the transaction, he relied on Gagosian as an advisor, such that a position of trust was created.  The Appellate Divisision was unpersuaded:

Plaintiffs contend that, when plaintiff MacAndrews & Forbes Group, LLC (MacAndrews) and defendant Gagosian Gallery, Inc. (the Gallery) entered into a contract whereby MacAndrews bought a sculpture from the Gallery (the MacAndrews Purchase Agreement), defendants knew that plaintiffs expected to resell the sculpture.  Plaintiffs allege that defendants breached the covenant of good faith and fair dealing implicit in the MacAndrews Purchase Agreement by entering into a subsequent agreement that decreased their incentive to be involved in resales of the sculpture, because without defendants’ involvement, plaintiffs would not realize as high a price on the resale.  However, the essence of the MacAndrews Purchase Agreement was that MacAndrews was going to buy a sculpture, not that it would later resell it.  As important as defendants’ involvement in the resale was to plaintiffs, the parties did not include it in the MacAndrews Purchase Agreement, and we will not interpret the agreement as impliedly stating it.

This relates to the “covenant of good faith and fair dealing,” a term that is implied as a matter of law in all contracts.  The covenant dictates that even arms’ length negotiating parties cannot secretly intend not to perform what they have agreed to do.

But the courts in succession did not agree that the implied terms went so far as to require Gagosian to hold Perelman’s interests above his own beyond the terms of the agreement.

This is also an important reminder about what is, and what isn’t, a statement by a seller that can give rise to enforceable rights later.  A statement of fact in the course of a transaction (“this is for a Jeff Koons work”) is a warranty under U.C.C. § 2-313 (“any affirmation of fact or promise made by the seller to the buyer which relates to the goodsand becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.”).

By contrast, a statement of value is not an actionable warranty.  So, “this Koons is worth $4 million” is a statement of opinion and not generally enforceable, unless the person making the statement is in a position of trust.  Buyer beware remains good advice.

Austria Restitution Advisory Commission Defers Klimt Beethoven Frieze Decision, No Reasons Given

Posted in Museums, Restitution, World War II

There was a curious non-development today in Austria concerning the dispute over Gustav Klimt’s famed “Beethoven Frieze” located in the Secession Building in Vienna.  At issue is whether a post-war sale by Jewish survivors to Austria of a famous painting that the law of the time did not allow to be exported can be considered a sale under duress and justify restitution. 

The building (the Wiener Secessionsgebäude) stands at the end of the Naschmarkt, and is an iconic example of Jugendstil architecture. 

The frieze was painted onto the walls of the building in 1902 for the 14th Secession Exhibition as part of a Gesamtkunstwerk homage to Beethoven’s Ninth Symphony (a statue of the composer was also included by another artist), and left there afterwards.  It was owned by the Lederer family, Viennese Jews who fled to Switzerland after the Anschluss in 1938, leaving the bulk of their collection behind.

The current dispute is not entirely focused on the Nazi-era oppression, however, but also what happened after it.  Thankfully, Erich Lederer survived, but as was often the case, had little interest in returning to the city that had turned him out.  Austria’s immediate post-war restitution law provided for the return of artwork that had been stolen or taken under duress by the Nazis, but with a catch: certain artwork could not physically leave Austria.  So, for a survivor living in Zurich, London or New York, this was of limited use.  What it created, of course, was the opportunity for buyers to “take it off their hands” (something the late Dr. Rudolf Leopold of the eponymous Leopold Collection—possessor of the Portrait of Wally when it was seized in 1998—was accused of in that case.  He consistently denied it).  In the Lederer case, the frieze was actually formally restituted, but without an export license.  According to the family, Austria would only grant an export license for the family’s other art if they agreed to sell the frieze to Austria at a bargain rate.  Eventually, a sale was consummated in 1973 for $750,000, which the family asserts was less than half its value.

As we have discussed previously, Austria’s Advisory Committee (Der Beirat gemäß § 3 des Bundesgesetzes über die Rückgabe von Kunstgegenständen aus den Österreichischen Bundesmuseen und Sammlungen, BGBl. I Nr. 181/1998 i.d.F. BGBl. I Nr. 117/2009, (Kunstrückgabegesetz)) has performed reasonably well on balance since its formation in 1998.  There are certainly exceptions where people have spoken out, but critically for the Lederer case, the Austrian Commission has shown sensitivity to sales under duress that Germany’s Limbach Commission, most notably, has not.  Earlier this year, a collection of botanical drawings was restituted even though the case for duress was circumstantial; a Jewish disposition of property in Nazi Vienna that went through the hands of Baldur von Schirach speaks for itself even without any further details. 

The announcement of the postponement is therefore interesting.  The website says simply, in German and English versions:

In dem Fall
Sammlung Erich Lederer, Beethoven-Fries
vertagte der Beirat seine Beratungen.

In the following case:
Collection Erich Lederer, Beethoven-Fries
the advisory board adjourned [its] consultations.

Interestingly a press wire also went out today that quoted the Austrian Cultural Ministry as saying that the matter would be taken up “in the next sitting” of the Commission. 

I do not know how the case had been proceeding or whether a decision was expected shortly, but it did strike me as odd that an announcement was made that, in effect, there is no announcement.  The Commission’s website historically just lists decisions, not updates.

Will the Commission extend its earlier logic of sales under duress to the 1973 sale?  If it does, it could legitimize a whole new category of claims.   Sales under duress and “flight goods” like this are an emerging area of contention.  A well-received conference last summer in Winterthur spotlighted the issue, but even last week Swiss museums who were surveyed about whether the Gurlitt case would prompt further examination in other Swiss museums more or less said “no.”  So the Lederer case remains an important bellwether. 

Graffiti Litigation Update: Settlements and Procedural Wrangling

Posted in Copyright, Litigation, Public Art, Trademark

Back in October, we surveyed some developments in lawsuits over public art and protection available under copyright law in graffiti art.  There has been some movement, and other developments, in these cases.

In a Chicago lawsuit, director and Monty Python alumnus Terry Giliam faces an injunction request over his new film Zero Theorem, which the plaintiffs allege infringed on street art in a mural in Buenos Aires (here again is a comparison set out in that Complaint).

Several defendants’ first response to the Complaint was to request that the case be transferred to federal court in Los Angeles.  Their primary argument is that Illinois has no relationship to the filming or production of the movie, or to the defendants.  Such motions carry a relatively high burden; so long as a court has jurisdiction, courts will defer to the plaintiff’s choice of forum, for the most part.  And, many of the defendants’ arguments refer to the foreign components of the case (filming in Romania, production in London).  Candidly, transfer to Los Angeles makes those witnesses no more accessible than from Chicago.  The plaintiffs have since responded forcefully, point out as well that one of the defendants has pursued infringement claims before in Chicago, undermining that defendant’s claim of inconvenience.

Elsewhere, the lawsuit against American Eagle in New York by David Anasagasti (better known as “Ahol Sniffs Glue”) over his mural “Ocean Grown” has been settled, without any details available.  The lawsuit has been dismissed with prejudice by stipulation, meaning it cannot be brought again.  Similar infringement claims against Sara Bareilles and Wal-Mart have also been resolved, according to Law360

In California, clothing designer Robert Cavalli has taken the merits of the claim head on.  “In response to the recent lawsuit brought forward by artists Jason ‘Revok’ Williams, Victor ‘Reyes’ Chapa, and Jeffrey ‘Steel’ Rubin, the Roberto Cavalli company would like to state that no official notice of such suit has been received,” a spokesperson for the label was quoted in Vogue as having told New York Magazine.  The company has not yet formally appeared in the action, however, but yesterday several other defendants moved to dismiss the claims against them that were added in an Amended Complaint filed after the initial pleading arising out of: (1) the Digital Milennium Copyright Act (DMCA), 17 U.S.C. §1202 et seq.; (2) the Lanham Act (15 U.S.C. § 1125(a), governing trademarks); (3) an unfair competition claim under California Business and Professions Code § 17200; and (4) a claim for California common law unfair competition.

Staff USA Inc., Nordstrom, Inc., Amazon.com, Inc., and Zappos.com, Inc. are all accused in some respect of contributory infringement, that is, that they are selling the items made by Cavalli that the plaintiffs allege infringe on their street art.  In this motion, these defendants argue first that the DMCA does not apply because their alleged wrongdoing has no Internet component, that is, even if they sold the items over the Internet, the DMCA speaks only to actual electronic manipulation and infringement by those defendants themselves.  Since there is no allegation they they altered or copied the graffiti electronically, they argue, they cannot be liable under the DMCA.  The Lanham (trademark) argument is that to the extent that the plaintiffs accuse these defendants of a copyright violation, that is the sole remedy under federal law.  Likewise, the state law claims (unfair competition and California Business and Professions Code) are preempted by federal copyright law, they argue.

If successful, the motion would not resolve the entire case as to these defendants (the underlying copyright infringement claim would remain to be litigated), but it is clear that these defendants intent to defend themselves actively. 

Gurlitt Collection Information Finally On View, Provenance Details Still Needed

Posted in Gurlitt Collection, Museums, Restitution, World War II

As the world adjusts to the announcement last week that the Kunstmuseum Bern has decided to accept Cornelius Gurlitt’s bequest (amid the continuing uncertainty about the validity of the will itself), the most significant development has been the museum’s posting of an inventory of the objects themselves.  The museum issued a press release that states:

‘We have promised transparency and are now acting accordingly. We are therefore happy to be able to release, only three days after deciding to sign the agreement, the information we currently have at our disposal,’ stated Matthias Frehner, Director of the Kunstmuseum Bern. ‘The ongoing categorization has not been completed in full yet. Additionally, we will further endeavor to emend the lists, step by step, for example, in regard to attributing the works to artists or improving the quality of the photos of the pictures and ensuring that all of them are photographed. Any new, validated information will be made known the public immediately.’

The collection is divided between those found in Munich and those found in Salzburg.  Each item lists the medium, artist, title and dimensions (in German).  It’s also a PDF, so harder to search, let alone sort. 

Overall, it seems safe to say the collection has significant works, but the initial reports of its overall value were overstated.  Most of the objects are works on paper, and many appear unlikely to have been seized as “degenerate art.”  One can reasonably assume that the compilation is mostly the work of the Gurlitt Task Force, since presumably the Swiss museum did not have access enough to make such an inventory before accepting the inheritance but the Task Force has since last year’s agreement with Gurlitt.  It was revealed last week, however, that a private Swiss donor has stepped in to subsidize further research.

Unmentioned, however, are provenance details.  Particulary for the works on paper, as many commentators have noted, some provenance will be essential for heirs even to identify themselves; famous paintings that heirs recognize are almost certain to be the exception.  While an heir migh have some sense of a past collection, the presence in the Gurlitt collection of works that once belonged to Jewish families would almost speak for itself. 

Still, this release is as much concrete information as has been released in a long time, and good news overall. 

The Kunstmuseum Bern’s Agreement to Accept Gurlitt Inheritance—Analysis and Lingering Issues

Posted in Gurlitt Collection, Museums, Restitution, World War II

With the benefit of (a little) time after the initial announcement that the Kunstmuseum Bern had agreed to accept the inheritance of Cornelius Gurlitt, more information has become available about the agreement with Germany and Bavaria that paved the way for the museum’s decision. 

It practical terms, the agreement resolves nothing definitively.  The inheritance itself still hinges on the validity of the will itself.  And there is still very little information about what is even under suspicion.  Reports swirled later in the day that there may finally be a release of both Hildebrand Gurlitt’s records, and the full accounting of what is under suspicion.  That would be progress, regardless of who ultimately takes possession of the collection subject to the claims.

First and foremost, the agreement itself was immediately made available.  It is written in German (copy here), but the main themes are as follows:

·         The preamble devotes considerable energy to committing the museum to the Washington Principles.  While that itself may be more problematic than it appears, it theoretically commits the museum to those principles that would not otherwise apply to such a private foundation.

·         The museum will accept the bequest of all of the art that is not suspected of having been looted by the Nazis.  That will apply both to the 1,280 or so objects that were seized from Gurlitt’s apartment, as well as the works found in Salzburg, and the Monet that was in his briefcase when he died, among others.

·         The parties commit to the continued provenance research dictated by the Bavaria-Gurlitt agreement earlier this year, at no cost to the museum.

·         The Task Force will apply its research to the other works in Gurlitt’s possession (i.e., the Salzburg group of works), and any others that surface.

·         Works that are deemed “Nazi looted” by the Task Force will be governed by Germany’s 1999 declaration of adherence to the Washington Principles (the Erklärung der Bundesregierung, der Länder und der kommunalen Spitzenverbände zur Auffindung und zur Rückgabe NS-verfolgungsbedingt entzogenen Kulturgutes, insbesondere aus jüdischem Besitz).

·         The burden of proof on the Task Force is “proven or with a high likelihood.”  If the Task Force determines with that level of certainty that a work is not looted, it will go to the museum.  If the Task Force determines with that level of certainty that a work is looted and there is a substantiated claim to it, it will stay in the location where the art has been kept for restitution procedures.  Lastly, if the Task Force determines with that level of certainty that a work is looted but there is no substantiated claim to it, it will be exhibited in Germany. 

·         Lastly, there is a catchall paragraph for circumstance where the provenance is unclear, the museum can decide on a case by case basis.

·         Germany and Bavaria commit to see to restitution of those works that qualify, and to “avoid” lawsuits against the museum, but to indemnify the museum if it does happen. 

“Degenerate Art” gets its own section (paragraph 8), and will be treated differently depending on whether it is also looted.  This is really just another way of saying that looted art is subject to the foregoing, and non-looted art will go to the museum.  The museum intends to create a research center at its own expense.

Again, this is considerable progress insofar as the agreement’s terms are known.  The Gurlitt-Bavaria agreement has still never been released, but today’s event was also interesting because it included the release of an executive summary of it (in both German and English) as it relates to this agreement.  But the distinction for substantiated claims sounds easier than it probably is; until more information is released, only a few people even know that they are claimants.  That needs to change. 

So where does that leave everything?  Many have voiced support for the deal.  Less sanguine were attorneys for David Toren, who is still facing opposition from Germany to his restitution claim.  They expressed cautious optimism that it might break the logjam that has stymied Toren’s claim.  

Also, the press conference itself was quite interesting to watch (YouTube video here).  Museum chairman Christoph Schäublin gave an overview about how surprised the museum was when it received the news.  He conveyed a sense of deliberations over the decision, and concern about the larger implications.  German Minister of Culture Monika Grütters spoke briefly as well.

Viewed from afar, the agreement is all upside for the museum.  It gets some measure of world class works, diclaims any interest in looted art, and is protected by Germany in the event there is a dispute. 

But it is not the beginning of the end of this story.  It may not even be the end of the beginning.