The Art Law Report

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

UPDATED­—Rethinking Art Authentication—December 2, 2015 at the NY City Bar Association

Posted in Events

Registration is now available for an upcoming event about which we posted previously: The Art Law Committee of the New York City Bar Association’s “Rethinking Art Authentication” on December 2, 2015 at the City Bar’s headquarters at 42 West 44th Street (between 5th and 6th Avenues).

As posted previously, the program will address issues that readers here will find familiar and yet challenging: the ongoing struggle against fakes and forgeries in the art market.

Hope to see you there, and Happy Thanksgiving in the meantime. We are indeed thankful for our clients, readers, and colleagues.

(reposted text below)

From the flyer:

The flood of news about fakes and forgeries in the art market has generated many news stories and significant concern throughout the market. This panel will address various steps being taken to rethink art authentication concepts, develop new computer, biotech and forensic techniques for authenticating art, and create laws that will make reliable authenticity opinions more accessible. 

These are experienced and engaging speakers, and it promises to be a terrific evening.  Hope to see you there.  Speakers are:

Professor Amy M. Adler, Emily Kempin Professor of Law, New York University.

Professor Adler will discuss taking a different approach to art authenticity.  Based on analyses of a series of recent high-profile cases about authenticity in art, Professor Adler argues that the very concept of authenticity is itself artificial.

Colette Loll, founder and director of Art Fraud Insights, LLC

Jennifer L. Mass, Senior Scientist and Director, Scientific Research and Analysis Laboratory, Winterthur Museum and President, Scientific Analysis of Fine Art, LLC

Dr. Mass will discuss the latest scientific innovations for identifying fakes and also serious condition issues in works of art.  Together, Ms. Loll and Dr. Mass will also discuss their participation in i2M Global Center of Innovation housed at SUNY Albany.

Rick Johnson, Jacobs’ Fellow in Computational Arts and Humanities, Jacobs Technion-Cornell Institute, Cornell Tech (New York City), Geoffrey S. M. Hedrick Senior Professor of Engineering, Cornell University (Ithaca), Scientific Researcher, Rijksmuseum (Amsterdam), and Computational Art History Advisor, RKD – Netherlands Institute for Art History (the Hague).

Professor Johnson will discuss computer methodologies for evaluating of works of art. He notes that measurements of various manufactured supports, such as thread weave density patterns in canvas, chain line paper, and the various textures of historic photographic papers, have proposed as forensic data useful in analysis of art works.

Dean R. Nicyper, Withers Bergman LLP

Mr. Nicyper will speak about legislation currently being proposed in the State Legislature that is designed to encourage authenticators to continue giving authenticity opinions and protect them from frivolous lawsuits.

Widespread Criticism Continues from Historians Over Germany’s and SPK’s Revisionism Concerning Holocaust and Forced Sales of Art

Posted in Guelph Treasure, Restitution, World War II

We reported last week on the outrage over the decision by Germany and the Stiftung Preussischer Kulturbesitz (SPK) to argue in their motion to dismiss my clients’ claims to the Welfenschatz that a commercial interaction between German Jews and a cabal instigated by Hermann Goering in 1935 “predated the Holocaust by several years.” As we noted last week, the suggestion that the Holocaust was a distant possibility in 1935 was an indefensible statement, factually, historically, and ethically.  The initial reaction was swift and severe.  As Germany gets ready to host the First Conference of the German Centre for Cultural Property Losses next week, its policies are hurtling in the wrong direction.


Images © 2015 Nicholas M. O’Donnell

The tide of response from historians is surging and unanimous.  Asked specifically about the assertion in Germany’s motion, a veritable who’s-who of Holocaust historians took issue with the statement in a manner that ranged from bewilderment to disgust with adjectives like “shameful” and “ludicrous.”

Deborah Lipstadt, a renowned professor of modern Jewish history and Holocaust studies at Emory University in Atlanta and a former consultant to the U.S. Holocaust Memorial Museum in Washington, said, “It’s ridiculous,” continuing (emphasis added):

“If you define the Holocaust as the killing of Jews, it began in the summer of 1941,” she said. “But to ignore the terrible persecution and prejudice and limitations placed on the lives of Jews that started in 1933 is ludicrous. … It is a cheap shot. It was a forced sale because Jews were forced to sell things because they were denied the right to make a living.”

Marion Kaplan, a professor of Hebrew and Judaic Studies at New York University, said (emphasis added):

The idea that the ‘Holocaust’ started with the war is wrong,” she said. “Social death started in 1933 and physical death followed. Indeed, many Jewish men died in concentration camps directly after Kristallnacht [November 1938] — well before the war.”

As noted last week, Rabbi Abraham Cooper, associate dean of the Simon Wiesenthal Center in Los Angeles, said that the German claim is “simply disgusting and dangerous.”

Lastly, no less than Timothy Snyder of Yale University, author of one of the very best (of the many) Holocaust histories I have read (Bloodlands) as well as the new and critically-acclaimed Black Earth: The Holocaust as History and Warning, told Jewish Week that (emphasis added):

“The reasons why people would want to get out of Germany and be compelled to sell things begins in 1933,” he said. “Their [the German government’s] argument is shameful. It means that unless there was mass murder, nobody was discriminated against. The fact that they killed many of the people later does not mean it was alright to discriminate against them earlier. Nobody would say that. All of the historians who work on the Holocaust focus on the discrimination that began in the 1930s.”

My co-counsel Mel Urbach was quoted eloquently on the point in the Jewish Week today: “We see a pattern here where Germany is revising the Holocaust and using technicalities [defenses such as the statute of limitations] to disrespect the suffering of so many people during the early years of the Nazi regime.”  As our other co-counsel Markus Stoetzel reminded, Allied law was clear from even before the war ended that such transactions were invalid.

In addition, others are starting to see the unfortunate threads of German policy in the past year on the question of terror in the early Nazi regime and revisionism.  As we ourselves have argued since March, the Behrens case in which the Advisory Commission concluded that a sale by a banker in 1935 was not coercive because of the shoddy conclusion that it is somehow “undisputed by historical scholars that during the first years of the ‘Third Reich’ Jewish private banks were not directly affected” is nothing less than revisionism in its own right by the same commission that did not recommend restitution of my clients’ claims.  A recent article by Henning Kahmann and Varda Neumann points out that this is pure rubbish.  Kahmann and Neumann cite a 2006 decision by the Federal Administrative Court in Germany that made very clear that oppression began the very day Hitler assumed power (emphasis added):

There can be no question that citizens of Jewish descent did belong to the category of persons collectively persecuted since January 30, 1933, as there was an intention from the very outset to exclude all Jews from economic and cultural life in Germany. In the case of citizens of Jewish descent it is impossible to draw distinctions according to professional categories which legislative measures excluded from professional life at a different point in time. Thus, civil servants of Jewish descent had for the main part already been removed from the civil service in April 1933 as a consequence of the Law for the Restoration of the Professional Civil Service [Gesetz zur Wiederherstellung des Berufsbeamtentums] of April 7, 1933. This does not, however, allow one to infer that Jewish people in general did not face collective persecution before September 15, 1935, based on the argument that it was only then that the Reich Citizenship Law defined who should be regarded as a Jew.

Kahmann and Neumann point out that the Advisory Commission failed to apply correctly the presumption that Behrens was the victim of a forced sale and put the burden of proof on the current possessors to prove the legitimacy of the transaction.  So it is with the Welfenschatz.

Faced with all this, and asked for comment, the German embassy trotted out its rote defense of the transaction and jurisdictional challenge, failing even to answer the question it was asked: why would Germany adopt this revisionist stance?  The world is still waiting for an answer.

Rethinking Art Authentication—December 2, 2015 at the New York City Bar Association

Posted in Authentication, Events

The Art Law Committee (of which I am a member) of the New York City Bar Association is holding a fascinating evening event on December 2, 2015 at the City Bar’s headquarters at 42 West 44th Street (between 5th and 6th Avenues).  Entitled “Rethinking Art Authentication,” the program will address issues that readers here will find familiar and yet challenging: the ongoing struggle against fakes and forgeries in the art market.  From the flyer:

The flood of news about fakes and forgeries in the art market has generated many news stories and significant concern throughout the market. This panel will address various steps being taken to rethink art authentication concepts, develop new computer, biotech and forensic techniques for authenticating art, and create laws that will make reliable authenticity opinions more accessible. 

These are experienced and engaging speakers, and it promises to be a terrific evening.  Hope to see you there.  Speakers are:

Professor Amy M. Adler, Emily Kempin Professor of Law, New York University.

Professor Adler will discuss taking a different approach to art authenticity.  Based on analyses of a series of recent high-profile cases about authenticity in art, Professor Adler argues that the very concept of authenticity is itself artificial.

Colette Loll, founder and director of Art Fraud Insights, LLC

Jennifer L. Mass, Senior Scientist and Director, Scientific Research and Analysis Laboratory, Winterthur Museum and President, Scientific Analysis of Fine Art, LLC

Dr. Mass will discuss the latest scientific innovations for identifying fakes and also serious condition issues in works of art.  Together, Ms. Loll and Dr. Mass will also discuss their participation in i2M Global Center of Innovation housed at SUNY Albany.

Rick Johnson, Jacobs’ Fellow in Computational Arts and Humanities, Jacobs Technion-Cornell Institute, Cornell Tech (New York City), Geoffrey S. M. Hedrick Senior Professor of Engineering, Cornell University (Ithaca), Scientific Researcher, Rijksmuseum (Amsterdam), and Computational Art History Advisor, RKD – Netherlands Institute for Art History (the Hague).

Professor Johnson will discuss computer methodologies for evaluating of works of art. He notes that measurements of various manufactured supports, such as thread weave density patterns in canvas, chain line paper, and the various textures of historic photographic papers, have proposed as forensic data useful in analysis of art works.

Dean R. Nicyper, Withers Bergman LLP

Mr. Nicyper will speak about legislation currently being proposed in the State Legislature that is designed to encourage authenticators to continue
giving authenticity opinions and protect them from frivolous lawsuits.

Leonard Peltier and Public Displays of Art—The Government Taking Sides on Whose Paintings are Shown Stirs Up First Amendment Problems

Posted in First Amendment

An exhibition in Washington (state) that included art by a number of Native Americans, including Leonard Peltier, has provoked an outcry that may have Constitutional dimensions that went unconsidered.  Peltier is a controversial Native American activist who was convicted of murdering in 1975 two FBI agents, Jack R. Coler and Ronald A. Williams.  His conviction has long been a Rorschach Test for responses to Native American activism and the federal government’s response—Peltier has strenuously insisted he is innocent, and the FBI has adamantly maintained he was properly convicted.  This has now raised its head in the realm of the public display of art, and whether the government may, or should discriminate among artists.  After an outcry about the inclusion of Peltier’s art by a number of current and retired law enforcement officials, the Washington Department of Labor and Industries has announced that it will remove Peltier’s paintings from the display that marked Native American Indian Heritage Month there, and has apologized.  Yet regardless of one’s opinion if Peltier’s guilt or innocence, the government has stepped in a First Amendment quagmire when it made a public forum available for expression and then removed the expressive work of only one person because of who he is.  The First Amendment, after all, acts to protect expression regardless of popularity, indeed, particularly so.  It is hard to argue that his work was removed for any of the reasons that courts generally permit restrictions on speech in the various kinds of public forums.  It remains to be seen whether Peltier will object on those grounds.

The full story of Peltier’s notoriety has been the subjects of books and movies, but a quick overview will suffice to contextualize the current dispute over his art.  Peltier was originally from North Dakota, of Lakota Sioux and Chippewa, descent, among others.  After living in Seattle briefly, Peltier became involved with a number of causes championing Native American rights, and joined the American Indian Movement (AIM), returning to the Pine Ridge Reservation in South Dakota in around 1973.  AIM quickly became one of the most prominent Native American activist groups, and the source of considerable controversy itself.  AIM is best known for the occupation of the offices of the Bureau of Indian Affairs in 1971, seizing the Mayflower replica in Boston, occupying Mount Rushmore, and the armed occupation of the Wounded Knee historic site in the Pine Ridge Reservation in 1973 by the self titled Guardians of the Oglala Nation (GOON).  Peltier was in jail on another charge at the time.  The Wounded Knee event was followed by a period of intense violence within AIM, during which dozens of its members were murdered.

Wounded Knee

Wounded Knee © 1997 Nicholas M. O’Donnell

It was during this time that Peltier again returned to Pine Ridge.  Pine Ridge is a place of intense and tragic beauty, no place more so than Wounded Knee (I took the picture above there in 1997).  The shootout that killed Coler and Williams occurred on June 26, 1975.  Peltier admitted shooting at the agents who were killed, but denied actually firing shots that hit them (they were shot at close range).  Peltier was sought after events that included the recovery of Coler’s handgun from a car that Peltier was driving and an AR-15 shell casing.  Peltier fled to Canada, was extradited, and tried for murder in Fargo, North Dakota.  Despite later disputes about the ballistic evidence offered and alibis presented by Peltier (and witnesses that placed him at the shooting who later recanted), Peltier was convicted and sentenced to two life terms.  Those convictions have been upheld in a variety of appeals, and Peltier’s parole has always been denied.  He is presently incarcerated in Coleman Federal Correctional Facility in Coleman, Florida.

Not surprisingly, the question of Peltier’s guilt has been a hot button issue since he was convicted.  Law enforcement officials are incensed at the notion that there is any dispute, while Peltier’s supporters argue that the circumstantial case was based on deeply flawed foresensic evidence.

No one seems to have thought of any of this, remarkably, when Peltier’s paintings were included in the Washington exhibit.  After making the connection, retired FBI agent Ray Lauer gave an interview to the local television in which he called Peltier a “thug” and “an unrepentant cop killer.”  The National Retired Agents Association also formally complained.

A spokesperson for the Washington agency responded that the department “felt bad” and that the exhibition was not meant as an endorsement of Peltier’s cause.  In response to the complaints, Peltier’s paintings will be removed.

Here is the problem: the government has a right to display, not display, or even destroy, art that the government owns.  A case in recent years involving a mural in a government office in Maine underscored the point: when Maine’s governor decided that he disliked the pro-labor message in a mural, lawsuits to stop him from doing so were unsuccessful because the government has the right to speak, or not to speak, a particular message.  A choice to make or withdraw approval for a particular expression, whatever one thinks of it, does not infringe the free expression or speech of anyone else.

This is entirely different, however.  The Maine mural belonged to the government.  The Washington agency opened its doors to private individuals to showcase their expressive content.  This is what First Amendment lawyers call a “forum,” and what kind of forum it is drives many First Amendment cases.  First, there are “traditional public forums.”  Traditional public forums include public parks, sidewalks and areas that have been traditionally open to political speech and debate. These forums enjoy the strongest First Amendment protections.  The government may only impose content-neutral restrictions as to time, place, and manner of speech (only during daylight hours, no amplification, etc.), it may not engage in viewpoint discrimination (no pro-war speech, no anti-war speech).  Any restriction of speech in such a forum will be reviewed with strict scrutiny and will survive only if it serves a compelling state interest.

Next, there are “designated public forums,” in which the government opens public property for expression that is not ordinarily a forum for public expression.  The government may close a designated public forums at any time, but so long as it is available, it must be content neutral in the same manner as a traditional forum.

Lastly, government may limit access to a “limited public forum” to certain kinds of expression or speech.  Even though the government may discriminate against certain classes of speakers, it still may not discriminate based on viewpoints.

If the Native American Heritage exhibition is anything other than a limited public forum, then removing Peltier’s art from the show seems to be a cut and dry First Amendment violation.  If the agency is a traditional public forum (probably not), there is no question that removing one artist is not a neutral time, place, or manner restriction.  If the show were a designated public forum, the government’s only recourse is to close the whole show so that there is no speech, not remove one speaker.  So in either case the government’s actions could not survive review, certainly not under strict scrutiny.

What about if the show is a limited public forum?  It’s plausible the government could argue it was restricting one class of speakers—convicted murderers—so long as it applied that restriction evenly.  Yet the only “class” of speaker in the show on its own terms was that of Native American artist.  Peltier is clearly still that regardless of what happened at Pine Ridge in 1975.  Inventing the category of restricted speaker for exclusion only after the fact does not pass muster.

If one thinks of a similar hypothetical, the problem is easy to see.  Assume Government Agency X wanted to honor Veterans Day, and put up an exhibition of paintings by veterans.  After one of the paintings arouses controversy as either critical or supportive of some military decision, the government removes the painting but does not restrict any of the other veterans’ works.  In colloquial terms it is flagrant censorship.  In First Amendment terms, it is viewpoint discrimination, and it is not allowed.

Peltier is, to many, an unsympathetic figure, particularly with law enforcement.  Their revulsion at celebrating Peltier is not hard to understand.  To many others he is a symbol of prosecutorial excess.  Whatever one’s opinion about him, however, arguably the most consistent thread in First Amendment case law is that the right exists precisely to protect those with whom the government disagrees or finds unfavorable.  From here it looks like the State of Washington has neglected to do just that.  Whether anything comes of it will be interesting to watch.

Despite Universal Criticism, German Cabinet Approves Stricter Cultural Heritage Law

Posted in Cultural Property, Guelph Treasure

The German federal cabinet has approved a revision to its cultural heritage protection law notwithstanding overwhelming opposition by essentially everyone who commented, putting the draft on the fast track to legislative enactment next year.

This law remains a solution in search of a problem at best.  At worst, it is used to lay claim to disputed objects like the Welfenschatz as a litigation tactic to undermine the value of looted cultural property to claimants.  It takes a regressive view of cultural objects that makes no sense in the 21st century.  Sadly, the primary victim will be the commercial art market in Germany, which will become a lesser option for moveable property because the risk will be outsized there relative to other countries.  That part of the German economy does not seem to hold enough, or any, interest for policy makers right now.

Several months ago Minister of Culture Monika Grütters announced an initial proposal to amend Germany’s cultural property protection law, or Kulturgutschutzgesetz.  Like many European countries, Germany has provisions under which a piece of property cannot leave the country without the Ministry’s permission.  The initial proposal in July would have tightened that even further, and applied to objects as young as 50 years old and worth at least €150,000—and not necessarily only German work.  After unanimous criticism, the Ministry of Culture re-submitted a somewhat watered-down version in September.  The revision would add a requirement for a permit to other EU countries, for paintings older than 70 years and valued at more than €300,000.  When the revised draft was released, the Ministry stressed the law’s inapplicability to contemporary work, and to any living artist (no doubt a nod to Gerhard Richter and Georg Baselitz, both of whom had declared their intention to take their work out of their home country if the law progressed).

On November 4, 2015, the German federal cabinet approved the draft.  “With the amendment of the cultural protection legislation we are adopting one of the most important pieces of cultural politics of this legislature,” Culture Minister Monika Grütters announced.  According to statement on the federal government website (my translation): “Depending on the course of parliamentary proceedings, the law should take effect in the first half of 2016.”

Similar reaction followed as with the prior drafts.  Art dealer Michael Werner told Artforum:

It can only be about control…they want to know, despite contrary statements, what private citizens have hanging in their living rooms. They want to make money, as they did in 2014 with the ‘normalization’ of the VAT rate on works of art.

It is hard to disagree with Werner.  The proposal seems likely to become law next year.  As Germany’s restitution policy is hurtling in the wrong direction, it is an odd commitment of effort and resources.

New VARA Ruling Muddies Analysis on Moral Rights and Significance of “Site Specific” Art

Posted in Copyright, Moral Rights, VARA

A recent injunction ruling that prohibited the destruction of the “Bicentennial Freedom Mural” in Corona, California had occasion to consider the rights asserted by the plaintiffs and artists under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A.  The order ultimately granted the injunction but on different grounds, holding that the plaintiffs were unlikely to prevail on their VARA claim.

Prado Dam

(from Library of Congress Prints and Photographs Division)

The eventual conclusion that these plaintiffs were unlikely to succeed on the merits of their VARA claim looks right from here.  But the path the opinion took to get there is a bit disheartening, primarily because VARA rulings are so few and far between that each one offers an important chance for interpretive guidance.  This opinion does not do that.  Skipping over entirely the question of who the artist was is the first problem.  Then, applying VARA analysis to a work from 16 years before the statute’s enactment without considering the requirements for retroactivity is puzzling, to say the least.  Third, elevating “site specific” almost to the level of a statutory element is simply incorrect.  Ultimately this opinion took what could and should have been a simple question—does this pre-VARA work qualify for VARA protection—and turned it into a complicated answer that offers prospective guidance that is confusing at best and just wrong at worst.  And, because the plaintiff obtained an injunction anyway, this portion of the ruling is unlikely to get any attention on appeal.

Plaintiffs Ronald Kammeyer and the Mural Conservancy of Los Angeles filed suit this year in the U.S. District Court for the Central District of California in Los Angeles.  Plaintiffs sought an injunction, which the parties initially briefed.  Kammeyer is a landscape architect who co-designed the mural when he was in high school.  The mural was painted by high school volunteers on the spillway of the Prado Dam in Corona, and is visible from the California Route 91 freeway.  The dam is part of a federal flood-risk management project known as the Santa Ana River Mainstem Project (SARM), on federal land controlled by the United States Army Corps of Engineers.  The Army Corps of Engineers’ initial review concluded in 2014 that lead paint in the mural justified either encapsulation or removal.  Leadership ultimately decided to remove it.

After some procedural housekeeping, the eventual Second Amended Complaint asserted various claims, under (1) VARA, (2) the National Historic Preservation Act, 54 U.S.C. § 306108, (NHPA) pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (APA), and (3) intentional desecration of fine art pursuant to Cal. Civ. Code §§ 987 and 989.  We will focus on the VARA analysis here, though the plaintiff ultimately obtained an injunction for alleged failures to follow the requirements of the NHPA (The NHPA claim argued that the Army Corps of Engineers had violated § 706(2)(A) of the APA, which allows challenges and “set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  Specifically, the plaintiffs argued that the Army Corps of Engineers failed to document a finding that there were no historic sites present.).

The VARA claim asserted rights of integrity under 17 U.S.C. § 106A(a)(3)(A)-(B), which state:

(3) subject to the limitations set forth in section 113(d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) 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.

Specifically, the Second Amended Complaint asserted that Kammeyer was the artist and that destruction would either injure his reputation or that the mural was a “work of recognized stature,” or both.

To obtain an injunction, a plaintiff must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”  Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

The Court held first that the government’s argument that the fact that the APA does not allow claims for copyright infringement against the United States did not dispose of the claims, because VARA claims, while codified in the Copyright Act, are not infringement claims.  The VARA claim analysis itself focused on the likelihood of success.  This is where the decision first starts to go off the rails.  The Court pronounced:

If the Court were to accept Plaintiffs’ interpretation of VARA, Kammeyer would have the lifetime right to keep the Mural on the spillway, regardless of safety, environmental, or other important public policy concerns.  Congress could not have intended this “lifelong-veto” when enacting VARA.
The First Circuit addressed this issue by concluding that VARA does not protect “site-specific” art. Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 134 (1st Cir. 2006).

There are a number of clear errors in this passage.  First, the Court accepted (and perhaps the government failed even to understand to challenge) that the plaintiffs have any VARA rights at all.  They almost certainly do not.  VARA rights exist from the date of creation and for the life of the author.  They cannot be assigned or inherited.  That standard applies, as with most laws, to anything created after the effective date of the statute.  But what about earlier works?  The Supreme Court has long held that statutes do not have retroactive effect unless they say so explicitly.  VARA does, but in an usual way:

With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.

The mural predates the effective date of VARA, obviously.  So the plaintiffs—if they are the “Author”—could only assert VARA rights if they had not transferred title to the physical work (not the copyright, which one or more of them undoubtedly still holds).  But none of the plaintiffs claimed to own the mural, either when it was painted or now.  Someone, possibly Kammeyer alone, possibly Kammeyer jointly with the volunteers who helped him, owns the copyright.  That will endure either alone or as joint work, under the term of copyright.  But could any of them claim to have owned title to the physical work in 1976?  On a federally-owned flood management dam?  It seems a stretch.

The opinion misses this threshold question entirely.  Second, VARA is absolutely a “lifelong” veto when it applies.  That is exactly what it is supposed to endow on the artist.

In addition, its citation to Phillips also misses the mark.  As noted above, “site specific” is not part of VARA.  The relevant passage in Phillips reads:

Essentially, for site-specific art, the location of the work is an integral element of the work. Because the location of the work contributes to its meaning, site-specific art is destroyed if it is moved from its original site.

That holding means only what it says, and relates to the sculpture at issue in that case.  As copyright scholar Pippa Loengard, Deputy Director, Kernochan Center for Law, Media and the Arts at Columbia Law School expressed it to me, “site-specific means the work integrates the site into it, not just that it’s on a ‘site’ or that the work reflects its surroundings.”  She’s exactly right; I couldn’t say it any better.  All sculptural works outside are on a site.  VARA doesn’t apply to none of them, which is what this opinion’s extension of Phillips would mean.

Having established this misapprehension of VARA as a basis to rule against the plaintiffs, the District Court’s nonetheless found still another reason to conclude that plaintiffs were unlikely to succeed on the merits of their claim: 17 U.S.C. § 113(d), which states that when:

(A) a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), and
(B) the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply.

In other words, if removing an installed artwork from a building where it was installed with consent would destroy the work itself, then no VARA rights attach.  Even if the mural could be removed without destroying it (which it almost certainly could, as anyone who has seen frescos in a museum knows), the Court ruled that § 113(d)(2) puts a 90-day limit on objecting to removal after receiving written notice of the planned removal, which had passed.  Yet it is far from clear that the dam is a “building” at all and that this 90-day deadline even applies.

As noted at the top, the plaintiffs’ success in obtaining an injunction means that the VARA analysis is unlikely to get appellate review in the short term, if ever.  This case, and VARA, could use it.

Holocaust Revisionism in German Motion to Dismiss Guelph Claim Elicits Condemnation

Posted in Guelph Treasure, Restitution, Uncategorized, World War II

Germany Runs Counter to 20 Years of International Commitments

As readers know, my clients Alan Philipp and Gerald Stiebel sued the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz (SPK) in February for restitution of the Guelph Treasure (or Welfenschatz as it is known in Germany), assisted by my co-counsel Mel Urbach, Esq. and Markus Stötzel of Marburg, Germany.  As my co-counsel speak to an event tonight hosted by Congresswoman Grace Meng on the anniversary of Kristallnacht, an event inextricable to the persecution of Jews in Europe, Germany’s response to the Complaint advances a stunning revisionism about the Holocaust and the international commitments that Germany has made.  While paying lip service to the seriousness of Jewish suffering, the papers filed in court are nothing less than an attempt to move the goalposts to exempt a historical period from responsibility about which there can be no serious debate.  Independent condemnation was not far behind the filing.

B1943004 B1943002 B1943001

(Photographs © 2015 Nicholas M. O’Donnell)

To review, the Welfenschatz was sold under duress by my clients’ ancestors, a consortium of art dealers, in response to a scheme orchestrated by Hermann Goering, who was not only a war criminal and a murderer, but also the pre-eminent looter of art (usually under the pretext of a “sale”) in occupied Europe, if not ever.  In its latest response, the Federal Republic and the SPK move to dismiss the case by contesting the jurisdiction of the U.S. courts in a variety of ways that my clients are confident will fail, and the case will be allowed to proceed.  This tactic was largely expected, if disappointing.  My clients will respond to the 85-page motion as the court’s procedure provides, and address its various arguments that essentially ignore the last 10 years of Holocaust art restitution legislation (particularly as to jurisdiction).

What was stunning, however, were a number of other positions.  The motion does not merely argue that the transaction at issue was ”fair” on its own terms, a tactic that the SPK has employed before.  Now, Germany and the SPK have made a claim so shocking that it speaks for itself: “the alleged taking of the Welfenschatz in 1935 predated the Holocaust by several years.” (emphasis added).  Then further, “the German government of Prussia indisputably spent money to obtain the collection.  []  The Welfenschatz was not then sold again for profit, but has remained in the possession of German entities and on display for the general public’s education and enjoyment to this day.”

Merriam Webster defines “several” as “more than two but fewer than many.”  Reaction to these revisionist statements has been swift, and harsh.  In The Jewish Week (emphasis added):

Rabbi Abraham Cooper, associate dean of the Simon Wiesenthal Center in Los Angeles, called the assertion “simply disgusting and dangerous.”


“In 1935 the Nuremberg race laws [were promulgated] and before that there were organized boycotts of Jewish establishments and violence against Jewish people on the street. Jews were forced from their jobs and they lost their rights. … Although what they are saying is technically correct — that the Shoah [Holocaust] did not happen until World War II — the idea that that constitutes a legitimization of what was done to German Jewish citizens from 1933 on is grotesque and beneath contempt.”

Rabbi Cooper added: “At a time when there is so much Holocaust revision, one of the most reliable allies we have had about the historic truth was Germany. It is beyond the pale that such an argument would actually be put down on paper in the name of Germany. … It should be stricken from the record.”

The idea that the Holocaust did not start until “several years” after 1935 is indefensible.  Jewish victims of Nazi terror from the moment Hitler took power in 1933, and those placed and murdered in Dachau in 1933, would certainly beg to differ.  Those afflicted by the Nuremberg Race Laws of 1935—which the mayor of Frankfurt went out of his way to enforce before they were actually law—would likely disagree.  And until this, one would have expected Germany and any sentient person to agree that the organized violence and murder against German Jews seventy-seven years ago today (November 9, 1938)—Kristallnacht—was part of the Holocaust.

Germany could have made its tone-deaf economic argument about the transaction without this Holocaust revisionism.  It did not have to insult the memory of the Nazis’ victims.  As an aside, it is revealing that Germany contends that the public display of this looted art since the victimization of its owners has any bearing on the substance of that persecution.

This shift can no longer be seen as a coincidence.  Quite apart from the Welfenschatz claim, readers will recall this year’s decision by the Advisory Commission in Germany against the heirs of George Eduard Behrens from Hamburg on those heirs’ claim to Pariser Wochentag (Paris Weekday) by Adolph von Menzel.  In recommending against restitution, the Advisory Commission carried the rose-tinted thread that underlies the Welfenschatz response: “Jewish private banks were hardly affected in the early years of the Nazi regime in their business” and “Jewish banks experienced an economic boom.”  (both emphases added).  These sentences would be comically absurd if they didn’t now reflect in hindsight what appears to be a disturbing change of attitude in the German government.

Further, Germany and the SPK argue in the recent motion that the claims are barred by the statute of limitations.  Germany, the very nation that perpetrated the Holocaust, cannot seriously assert in equity that its crimes were too long ago for recompense.  But even without any apparent moral scruples, Germany is legally wrong.  Worse yet, its press release accompanying the motion makes absolutely clear that Germany knows perfectly well that it has violated its international commitments in asserting the statute of limitations.  The Washington Principles on Nazi-Looted Art, to which Germany was a founding signatory, commit the member states to secure fair and just resolution of claims on the merits, not on technical defenses that avoid the substance.  The assertion of the statute of limitations is fundamentally at odds with that commitment.  Yet the SPK’s defensive press release states:

The SPK would not have invoked the statute of limitations in this Motion to Dismiss if the plaintiffs had brought their claims to a German court after the Advisory Commission, and will not invoke the statute of limitations if the plaintiffs file a case in the Federal Republic of Germany after this suit is dismissed.

In other words, Germany will be happy to follow the Washington Principles—so long as it is done in a forum and in a manner of Germany’s choosing.  Otherwise, all bets are off.   The mere fact that Germany is so worried about the issue that it needed to provide an excuse shows that it is fully aware of just how wrong it is.  And this is out of both sides of the defendants’ mouth anyway; the motion repeats the canard that the 2014 Advisory Commission mediation “adjudicated” the property rights, when that commission has no such authority (as Germany strenuously insists when it suits) and which issued a recommendation and nothing more.  The SPK itself well knows this: the Advisory Commission recommended against the restitution of the Hans Sachs poster collection in 2007 from the Deutsches Historisches Museum—a museum run by the SPK (text in German).  Yet even after the claimants “lost” that case, they sued the SPK and won restitution.

Lastly, the motion argues that my clients are not the proper plaintiffs.  My client Alan Philipp, for example, is the son of Lucie Ruth Hackenbroch, whose father Zacharias was one of the consortium members.  Zacharias did not escape Germany alive, but Lucie did.  The Nazis added insult to injury after her father’s death of stripping her of German citizenship.

Similarly, Mr. Stiebel is the great nephew of Isaac Rosenbaum and nephew of Saemy Rosenberg.  Rosenbaum and Rosenberg did manage to escape Nazi Germany and eventually found their way to New York.  The remaining interests in the consortium are covered by various agreements, all known to the SPK.

The idea that anyone other than Mr. Philipp or Mr. Stiebel would or should bring this claim is offensive.  The number of Aryanized companies in Nazi Germany are almost beyond counting; no one contends in good faith that their owners are not the proper claimants for that victimization.  The alternative contention in the motion that a fictional German corporation (of which there is no evidence, because there was none) similarly Aryanized out of existence would be the proper plaintiff is just bizarre.  To suggest that the victims of Nazi persecution’s rights are limited to the corporate interests that they held is, like so much about the recent filing, astonishing.

Germany could and should have done the right thing a long time ago.  My clients remain committed to seeking justice and recognition for the persecution of their ancestors.  Germany’s latest response is cause for shame and condemnation.

Graffiti on the Runway: Street Artist Rime Pursues Lawsuit Against Moschino for Damaging His Street Cred

Posted in Copyright, Graffiti Art, Intellectual Property, Trademark

The fusion of street art, high fashion, and the law is hardly new, but the Italian designer Moschino’s latest foray into this genre has landed the company in court. Joseph Tierney, a well known graffiti artist who works under the pseudonym “Rime”, filed a complaint against Moschino and its creative director, Jeremy Scott, alleging copyright infringement, trademark violations under the Lanham Act, and unfair competition, and appropriation of name and likeness under California law.  Moschino’s allegedly unauthorized use of his work has harmed the artist in numerous ways, Tierney alleges, not the least by opening him up to accusations of selling out.  In the words of Tierney’s complaint: “nothing is more antithetical to the outsider ‘street cred’ that is essential to graffiti artists than association with European chic, luxury and glamour – of which Moschino is the epitome.”  This theory of harm was something we talked about at the “Copyrights on the Street” panel at the Copyright Society of the USA meeting in Newport this year, and it is now being put to the test.

The suit, filed last August in the U.S. District Court for the Central District of California, arises out of Jeremy Scott’s use of Rime’s 2012 Detroit mural “Vandal Eyes” (image #1, all from the Complaint) in his Fall/Winter 2015 collection. The dress bearing Rime’s mural was featured in Moschino’s February 2015 runway show in Milan – it was worn by supermodel Gigi Hadid to close out the show (image #3). Then in May 2015, the dress was worn by Katy Perry at the Met Gala (image #2), where Jeremy Scott himself also wore the design (image #4).  The collection featuring Rime’s work has generated a lot of publicity and is said to have earned Moschino a substantial boost in revenues, according to articles in The New York Times and The Wall Street Journal.


Moschino comparison

#1                     #2             #3                 #4


Not only did Moschino and Scott copy the mural, but they also – “to add insult to injury” as the complaint puts it – included a forgery of Rime’s signature and his name through the designs in the collection. In addition, the artist’s image was embellished with Moschino brand logos, Tierney says.  These embellishments constitute defacement, according to the artist, and amount to a false representation that the artwork was created by Moschino and/or Scott, not Rime—and thus constitute an alteration of copyright management information in violation of 17 U.S.C. § 1202.  This theory about graffiti signatures and copyright management information is also in play in the Cavalli case.

Tierney further claims that Moschino violated the Lanham Act and creates a likelihood of confusion with Tierney’s work and/or authorization. By creating the impression that Rime was the author of the designs, Tierney alleges that Moschino undermined decades of efforts by the artist to establish ‘his name and signature in the minds of consumers as associated with high quality artwork.”  Part of Rime’s reputation, he argues, is founded on “eschewing connections to commercial consumerism except in carefully selected instances.”  An association with Moschino poses a significant threat to carefully crafted reputation.

Moschino and Scott have now responded by filing separate (but largely overlapping) motions to dismiss and motions to strike the state law causes of action.  The argument underlying the motions to strike is three-fold, in accordance with the anti-SLAPP statute that seeks to prevent lawsuits filed to silence a defendant’s exercise of free speech on a matter of public interest.

First, the defendants argue that Scott, as the creative director for Moschino, is above all an artist who uses the medium of fashion design in order to express his creativity (these ideas are detailed in a declaration by the designer, which the Hollywood Reporter calls an “eyebrow raiser”).   In fact, Scott appears as eager to claim the title of subversive artist as Tierney.  For example, the motion argues that Scott’s use of graffiti in fashion design is a form of (feminist) social commentary “on the way in which society objectifies women.”  As such, the designs are a form of artistic expression protected by the First Amendment, not simply a way to sell clothes (in fact, the defendants deny that the fashion items in dispute were ever sold in the United States or even featured at a fashion show or other public event in this country).

Second, Moschino and Scott contend that fashion is a matter of public interest. Citing a number of cases that construe the concept of “public interest” broadly for purposes of the anti-SLAPP statute, the defendants claim that “[f]or better or worse, in our society, the fashion decisions of major celebrities at a major annual gala that receives tremendous press attention is indisputable a matter of public interest.”  This second argument seems to cloud the first one to some degree – what is presumably at issue here is not simply the fashion choice of celebrities but rather Mr. Scott’s fashion design as social commentary.

In addition, SLAPP statutes are founded largely in justifiable concerns about free expression, and are intended to curtail lawsuits that intimidate things like free speech and petitioning the government. But all copyright restrictions are a check on unlimited expression, but that is not a Constitutional problem because copyright law is authorized by the Constitution itself.  It’s dubious that pursuing infringement claims can be characterized in this way without allegation or evidence of some ulterior motive.

Scott’s individual motion to dismiss argues that the copyright infringement claim fails because Tierney has not provided anything more than “threadbare allegations” that Scott is responsible for actual copying of his mural onto Moschino’s apparel.

The two defendants argue together that the CMI theory is misplaced, and was intended to apply to digital information, not physical attribution. Section 1202 was indeed enacted as part of the Digital Millennium Copyright Act, but there is a split of authority on whether CMI has to be digital.

With a hearing on the motion to dismiss scheduled for December 21, we may soon see which of the Tierney’s claims withstand the defendants’ response.

My thanks to my colleague Maria Granik for her considerable assistance in drafting this article.

Bruegel Painting In Vienna Spurs Argument Over Allegations of Nazi Looting in Poland

Posted in Museums, Restitution

Most often in restitution battles the disagreement boils down to whether a painting was looted, and/or whether it changed hands under circumstances that failed to pass clear title to the predecessor of its current possessor.  Then, controversy frequently ensues about the extent to which the possessor resists restitution on grounds other than the title of the painting (jurisdiction, statute of limitations, etc.).  Rarer is the type of dispute where the parties don’t even agree about what they’re disagreeing about, like the one brewing between Austria and Poland over a painting by Pieter Bruegel the Elder that hangs in the Kunsthistorisches Museum (KHM) in Vienna, The Fight Between Carnival and Lent (1559).


The Fight Between Carnival and Lent
(Courtesy Wikicommons)

The allegory depicting the struggle between the seasons of excess and penitence is an Old Master of rare quality and exceptional art historical importance.  Likewise, its prominence in the KHM, one of the small handful of premier Old Master museums in the world, can scarcely be overstated.

Simply put, the current dispute is over whether the painting that is undeniably in Vienna right now is the same as a painting that was looted from Krakow during the Nazi occupation.  According to a research paper by Diana Blonska, the director of the National Museum in Krakow, archival documents show a letter from 1946 written by her predecessor Feliks Kopera:

The Museum suffered major, irretrievable losses at the hands of the wife of the governor of the Kraków Distrikt, Frau Wächter, a Viennese woman aged about 35. […] Items that went missing included paintings such as: Breughel’s The Fight Between Lent and Carnival.

Otto Gustav von Wächter was an Austrian lawyer and Nazi politician.  Between 1939 and 1941, he was Gauleiter, or district head, of Krakow.  His wife Charlotte Wächter (née Bleckmann) was born in 1908, would have been in her mid-40s, not 30s at the time of their administrative posting in Poland.  Nonetheless that seems a plausible enough error after the fact.  It should scarcely need mentioning that any Nazi in a position of authority in Poland at that point was in the midst of many of the worst atrocities of the war, which is really saying something.

What is harder to understand is how there is a disagreement at this point.  The KHM insists that the painting has been in Austria since the 17th century.  One would think that would not be hard to demonstrate given the prominence of the artist and the stature of the museum. There either are, or are not, records prior to 1939 that would show reference to the painting present in Vienna.  The painting is included in the KHM’s “Selected Masterpieces” web page (under its German title, Kampf gegen Fasching und Fasten), but no provenance is listed.   If the painting was indeed in the Austrian imperial collection, I would expect references to it would not be scarce.

On the other hand, the letter cited by the Polish museum is not definitive.  In my own experience, a museum for which I was working had a scare about a possible connection to a plundered Dutch collection, until further research established that the stolen painting was a finished work, and the object under consideration was a sketch of undeniably different size and finish.

One or more of these factors may be at work.  Bruegel is known to have painted more than one version, including one well known in the Musée des Beaux Arts in Brussels.  For now, Poland has indicated that it will more formally demand that Austria research the provenance of the painting.

It will be interesting to see what the KHM provides by way of provenance.

The New Domestic “Freeports”: Sales and Use Tax Opportunities and Risks

Posted in Customs, Tax

Recent news of “Freeports” opening in Delaware prompts a review of what these facilities are for, what they are not for, and where collectors and dealers can get themselves into trouble. When used carefully there are meaningful tax efficiency opportunities, but no one should think that they are or can be a one-stop way to avoid sales tax in particular.  Thoughtful planning is the key.

Best known in Luxembourg and Geneva, “Freeports” are intended to be a kind of bubble within a particular country or jurisdiction where transactions can take place under the legal fiction that they are not crossing borders that might otherwise be involved between the parties to the sale. As David Arendt of the Luxumbourg Freeport explained at “Pure of Love of Art Versus Mere Investment” IBA conference in London last March, that Freeport is located at the airport, in a high-end facility.  There is no tax avoidance, only tax deferral.  The facility is supervised by Luxembourg customs.  Every item is scanned, and customs has the right to inspect anything.  Origin, shipper, export license, tax status, consignor and invoice are all recorded.  The key advantage is that an object can arrive there, not be subject to customs duties by virtue of it arrival, and then be bought or sold.  The legal fiction, under the right circumstances, is that it never entered the country.  They are not permanent tax holidays, however, they are rather intended to reduce the number of transactional events at which some customs or tax might be collectable.

Sales tax stands on a slightly different footing. Outside of the Freeport context, the United States operates under a regime of what are called sales and use taxes.  If I buy a car in New Hampshire, where there is no sales tax, and keep it at my home there, there is no tax.  But if I buy it in New Hampshire to bring to Massachusetts and register it (where there is a sales tax), Massachusetts will charge me what is called a use tax equivalent to what the sales tax would have been.

In the realm of art, this is no theoretical matter. The conglomerate Tyco International, Ltd., was headquartered in Exeter, N.H.  Former CEO Dennis Kozlowski was indicted in 2002 for an alleged failure to pay New York sales tax on over $13 million of art.  In that case the allegation was outright fraud, the claim that the art never even left New York and that the “shipments” to New Hampshire were fictional.  Kozlowski settled with the Manhattan DA in 2006 and agreed to pay $17.9 million in state and city income tax, interest and penalties, of which $8.3 million represented the tax liability.

But even if the art had left New York, that is not entirely enough. The touchstone is the point at which the buyer takes title and possession. If the gallery sells an object in a state with sales tax and ships it to the buyer in a state without one, sales tax will probably not be due. By contrast, if the buyer makes the purchase and assumes title and possession in a state with a sales tax to move the property to its sales-tax-free jurisdiction, it is likely too late to avoid sales tax.

This is where the Freeport potential looms. The foregoing examples all assume that the property is in a jurisdiction like New York where there is a tax.  But if there were a sophisticated facility in a tax free jurisdiction, then we see the parallel to the Luxembourg customs example.  In effect, the property never touches the taxable jurisdiction.

The first announced facility is called The Delaware Freeport, managed by Fritz Dietl. The site touts Delaware’s central location on the Atlantic coast and status as one of only five states without a sales or use tax (Alaska, Oregon, and Montana being the others besides New Hampshire).  Crozier Fine Arts, another well-known art logistics and storage firm, is also scheduled to open a facility in Delaware.

This still requires careful structuring. Again, if a collector buys something in New York and the seller ships it to the Delaware Freeport, it may escape the New York tax collector.  But it will not solve the buyer’s use tax analysis in and of itself if the art is immediately taken to a state with use tax.  It is all about who has control of the shipment and where it is being delivered for use.  The players involved in setting up the Freeports are reputable and experienced, but it is not their responsibility to do the buyer’s or seller’s tax planning.  These facilities are an opportunity for efficiency (the Second Law of Thermodynamics tells us, after all, that nothing is truly free), but one that must be used with careful advice and forethought.