By Chris Michaels*
On 11 June 2014, Plaintiff Anders Karlsson filed a case in the Central District of California against various individuals and entities alleging that they set up fraudulent investment schemes involving fake or forged artworks, attributed to Pollock and de Koonig, as well as breached their fiduciary duties to Plaintiff regarding his investment in a luxury yacht. The Plaintiff, Anders Karlsson, is engaged in mining, procuring, and wholesale and retail purchases and sales of boutique, minerals, fossils, gems, and natural history items. The named defendants are, John Leo Mangan III, Michael William Force, Taryn Burns, Jovian “John” Re, Leslie James, and the entities Art Possible, LLC, Art Force, LLC, and Raven Art, Inc.
In the Complaint, Karlsson alleges that his former personal friend of nineteen years, Defendant Leslie James, became aware that Karlsson was about to generate substantial sums of investment capital through the sale of an interest in one of his companies. The Complaint states that, armed with this information, Defendant James and the other Defendants conspired and acted in concert to defraud Karlsson through the use of fake and/or forged artworks.
The first claim in the Complaint involves the alleged breach of a Joint Venture Agreement (“JVA”) between Karlsson and Defendants Raven Art, Inc., Mangan, and Force. Pursuant to the JVA, Karlsson purchased a Jackson Pollock painting for $1,000,000, in which Karlsson maintained a 23.5% interest. The Raven Art Defendants represented the Pollock to be authentic and, according to Karlsson, he relied on their representations when purchasing the painting. Under the terms of the JVA, the painting was not to be moved from storage in Long Island City, New York without Karlsson’s written consent nor without insurance approved by Karlsson. Additionally, the JVA stipulated that painting was not to be sold for less than $30,000,000.
Karlsson maintains that, in spite of the terms of the JVA and in breach thereof, the painting was, in fact, moved without his consent and without the requisite insurance to an expert chemical art researcher in London, England. While the Complaint does not specifically state why the painting was moved to the researcher, it appears that the move was to have the researcher confirm the authenticity of the painting. In addition to the breach of contract claim on this issue, this claim of the Complaint also notes that Karlsson now has legitimate issues regarding the authenticity, provenance, and true value of the painting.
In the second claim, Karlsson maintains that he paid Defendant Re, identified in the Complaint as a “major source” of renowned artworks, $793,000 for twenty-one artworks. The artworks were represented by Re, Art Force, and Art Possible to Karlsson as being genuine and authentic works, with documented valid provenance. Of the twenty-one works purchased, three of them were Jackson Pollock paintings. Karlsson states that works were purchased pursuant to “earn-in” contracts, under which the Re, Art Force, and Art Possible were required to perform services to authenticate the artworks. To date, Karlsson asserts that no authentication services have been performed by the Defendants and, in fact, Karlsson claims that at least four of the works are fake: all three Pollock paintings and a Max Ernst sculpture. Karlsson maintains that the Defendants had knowledge of the fakes, and also states that some of the remainder of the artworks purchased also appeared to be fakes and/or with falsified provenance. Among other things, Karlsson is seeking declaratory relief on the issues of authenticity, provenance, and the true value of the Re supplied artworks.
The third claim of the Complaint deals with another earn-in contract whereby Karlsson purchased works from the Art Force Defendants for $695,000. Similar to the second claim, Karlsson states that he was coerced to buy the works, including a John Fernely, Sr. oil on canvas, because of representations made by Art Force that the works were authentic. Karlsson now claims that the works are fakes and he believes that the Art Force defendants knew of their falsity before the sale.
The fourth claim of the Complaint involves another earn-in contract issue, this time between Karlsson, Art Force and Art Possible, wherein Karlsson purchased nine artworks and agreed to provide the capital, time, and effort to arrange for repair and restoration of the works. As stated in the Complaint, Karlsson now believes that at least five of the nine artworks are fakes and the other four are of uncertain authenticity.
The fifth claim in the Complaint, solely against Defendant Leslie James, alleges breach of contract, fraud in the inducement, and theft and conversion, among other causes of action. In this claim, Karlsson claims that James bought several fake Picasso artworks from the Art Force Defendants in order to include them in a compendium of works that James is self-publishing. As James was compiling works to include in his publication, Karlsson delivered to James a collection of twelve paintings by Gaston Longchamps to be photographed for inclusion. Karlsson claims that James returned eleven out the twelve paintings and is now refusing to return the last painting.
Additionally, Karlsson asserts here that he personally loaned James $75,500 and James provided two paintings as collateral: a Pollock painting and a de Koonig painting. When Karlsson demanded repayment of the loan and James refused, Karlsson paid to have the paintings authenticated by art experts. The results of those authentication efforts were negative and, when Karlsson informed James of the results, James demanded their return so that they could be sold. Karlsson now alleges that James never intended to sell the paintings and states that they are now displayed in James’ publication as authentic paintings.
Finally, the last claim of the Complaint avers that Defendants Art Possible, Mangan III, and Force induced Karlsson to purchase a yacht for a price that far exceeds its fair market value and that is less than the value represented to Karlsson by the Defendants.
Through the Complaint, Karlsson is seeking, among other things, compensatory, special and actual, consequential, and punitive and/or treble damages. Karlsson is also seeking injunctive relief to compel specific performance of the various agreements outlined above.
Interestingly, in the claims associated with the alleged fake and/or forged artworks, Plaintiff alleges he is entitled to declaratory relief as to the issues of authenticity, provenance, and true value of the artworks. Through this call for relief, it appears that Plaintiff is requesting the court to definitively rule on the authenticity of the works even though Plaintiff is stating that, for the majority of the works, the requisite provenance research and authentication efforts have yet to be performed. It seems likely that the expensive and lengthy process of determining the authenticity of these works will need to be performed by a third party before any determination is made.
Plaintiff is represented by Meir J. Westreich of Pasadena, CA.
- Complaint, in Karlsson v. Mangan III, C.D. Cal., Filed on June 11, 2014).
About: Chris Michaels is a litigation attorney in the Philadelphia office of the Atlanta, GA-based law firm, Cruser & Mitchell, LLP, where he actively pursues his interest in the field of art law. He may be reached at (518) 421-7238, email@example.com, or on Twitter @CMichaels88.
Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.
Mr. Corcoran and the Trustees: The Corcoran Gallery of Art, a petition for Cy Pres, and the fate of an institution
By Caroline Camp
The Corcoran Gallery of Art in Washington, D.C. began as the private art collection of Mr. William Wilson Corcoran (1798-1888). In the mid-19th Century, Corcoran would host public viewings of his collection but, given the growing number of artworks and visitors, he decided to create a formal structure to support the collection and his own personal mission of promoting the arts. In 1869, he executed a Deed of Trust with the charitable purpose of maintaining an institution in D.C. dedicated to art and “encouraging the American genius.” The trustees obtained federal charter and later, in 1890, established what is now the Corcoran College of Art + Design in a further effort to fulfil the intent of Mr. Corcoran’s original Deed.
Fast forward to 2014, nearly 150 years after Mr. Corcoran created this institution. According to the Corcoran’s website, the public Gallery holds over 16,000 artworks and the College has 615 undergraduate or graduate students enrolled. Although these figures look healthy, the institution’s corresponding financial figures appear less so. Currently, the fate of the institution hangs in the balance between two competing forces – Mr. Corcoran’s 19th century intentions and the 21st century financial realities. A court case is pending before the Superior Court of the D.C. Civil Division to determine which force shall prevail.
In 2012, amidst rumors of financial and other struggles, the Corcoran’s trustees released a statement which acknowledged that the institution was “struggling with the effects of a difficult economy” and considering the “available options,” which included the sale of their historical home (the Flagg building). Two years later, the New York Times reaffirmed that the Corcoran was facing “Facing mounting debts, a shrinking endowment and tens of millions of dollars in renovations.” This coincided with an announcement from the trustees that the Corcoran was proposing to enter into a partnership with the George Washington University and the National Gallery of Art. Under the proposal, the George Washington University would take over the operation of the College, and the National Gallery of Art would take responsibility for the Gallery’s contemporary/modern art collections. Remaining art works would be donated to other museums.
On its face, the trustees’ proposal violates the initial charter that established the Corcoran, and seemingly runs afoul of Mr. Corcoran’s intentions behind creating the entity. In order to proceed, the trustees must prove before federal court that the original objectives created by Mr. Corcoran are impossible to carry out and that the proposal is the closest alternative. To do so, the trustees filed a Cy Pres petition with the Superior Court of the District of Columbia Civil Division. “The doctrine of cy pres is an equitable remedy intended to modify a charitable use while preserving a charitable purpose,” the District of Columbia states in its response to the petition. The District supports the petition, indicating that the proposal is necessary to keep the institution in D.C.
Not everyone supports the proposal, however. A collection of such individuals opposed to the trustees’ proposal, including Corcoran students and employees, banded together to form Save the Corcoran. The organization filed a twenty-page brief with legal arguments and exhibits in response to the petition, requesting a delay in the Cy Pres ruling. In response, Judge Okun ruled on July 21, 2014 that current students and employees have legal standing to challenge the petition, but other members of Save the Corcoran do not. Proceedings were extended so that both sides could present arguments.
How should the Corcoran best realize the charitable purposes set out in a document from 1869 and the intentions of an absent founder? How should these intentions be realized in the midst of serious financial difficulties? Similar questions were posed in the contentious case of the Barnes Collection, and many commentators have noted this parallel, including Randy Kennedy at the New York Times. In that case, after several years of arguments, Mr. Barnes’ original intentions for his art collection were modified so that the Barnes Foundation could overcome financial difficulties. While Judge Okun decision was pending, University of Maryland indicated its willingness to assist with preservation of the Corcoran legacy, and offered partnership to Corcoran.
In the closing arguments on August 6, Andrew Tulumello, representing the challengers to the petition, argued “There is no historical precedent for what the trustees — who, like generations of trustees, are only temporary stewards of this institution — are preparing to do here[.]” Charles Patrizia, representing the trustees, countered that the proposal is the only way forward, and “there is no white knight” that can supply the money necessary to save the institution.
On 19 August 2014, Judge Okun approved the merger initially supported by the trustees. The Court found that “The GW/NGA proposal is the best way to effectuate Mr. Corcoran’s original intent, given the Corcoran’s current financial circumstances and the option that actually are available to the Trustees at this time.” Full opinion is available here. No appeal expected.
- Christina Cauterucci, “The Corcoran is Officially Splitting,” Washington City Paper, http://www.washingtoncitypaper.com/blogs/artsdesk/visual-arts/2014/08/18/the-corcoran-is-officially-splitting/.
- The Corcoran Gallery of Art and the Corcoran College of Art + Design, http://www.corcoran.org
- Save the Corcoran, http://savethecorcoran.org
- Randy Kennedy, “Suit seeks to block Corcoran takeover.” New York Times (July 2, 2014) http://www.nytimes.com/2014/07/03/arts/design/lawsuit-seeks-to-halt-dismantling-of-corcoran-gallery.html
- Randy Kennedy, “Foes of Corcoran Takeover Plan Gain in Court.” New York Times (July 21, 2014)
- District of Columbia’s Response to Petitioner’s Motion for Entry of Proposed Cy Pre Order and Public Comments” Case No. 2014 CA 003745 B (July 16, 2014) https://corcoran.gwu.edu/sites/corcoran.gwu.edu/files/downloads/District%27s%20Response%20to%20Cy%20Pres%20Motion%20Package%20(1).pdf
- Philanthropy News Digest, “Corcoran Gallery of Art Agrees to Takeover.” (February 24, 2014) http://philanthropynewsdigest.org/news/corcoran-gallery-of-art-agrees-to-takeover
- Tyler Green, “The Corcoran: A failure of leadership.” ArtInfo (June 5, 2012) http://blogs.artinfo.com/modernartnotes/2012/06/the-corcoran-a-failure-of-leadership/
- William Corcoran, Deed of Trust. May 18, 1869. http://www.corcoran.org/sites/default/files/CorcoranDeedofTrust.pdf
- “Statement from the Corcoran Gallery of Art and College of Art + Design.” Taken from ArtInfo at http://blogs.artinfo.com/modernartnotes/files/2012/06/Corcoran-Futures-Statement-06-04-2012.pdf
- Brett Zongker, “Judge Hears Arguments on Corcoran Gallery.” AP (August 6, 2014) http://abcnews.go.com/Entertainment/wireStory/judge-hears-arguments-corcoran-gallery-merger-24868658
- David Montgomery, “Closing Arguments Presented in Plan to Break Up Corcoran Gallery.” Washington Post (August 6, 2014) http://www.washingtonpost.com/entertainment/museums/closing-arguments-presented-in-plan-to-break-up-corcoran-gallery/2014/08/06/64324976-1d9c-11e4-ae54-0cfe1f974f8a_story.html
About the Author: Caroline Camp, Esq., one of the founding members of Center for Art Law. She specializes in intellectual property and art law issues, and she can be reached at carovcampATgmail.com.
By Irina Tarsis*
What we call the beginning is often the end. And to make an end is to make a beginning. The end is where we start from. ~ T. S. Eliot
Every important art museum and private collection in the United States likely owns works of art that at one point or another, or more than once, sold through one of the oldest and finest American art galleries, Knoedler & Co (the Gallery). A tour through the annals of case law also uncovers many a Knoedler references, from matters under review by the United States Tax Court to illegal wire-tapping hearings, from the United States Customs Court citations to nineteenth century unfair competition conflicts, from World War II looted art to Soviet nationalization title disputes, from warranty breaches to racketeering, and fraud.
The rise and demise of the Gallery span three centuries. It was established by Michael Knoedler and members of a French firm Goupil, Vibert & Cie (later Boussod, Valadon & Cie) in 1848, well before the founding of the major museums in the United States. In 1857, Michael Knoedler bought out the Gallery from his French partners and shifted from selling French Salon paintings to providing old master paintings to the American art market. In 1971, the Gallery was acquired by Armand Hammer, a clever businessman and the founder of The Armand Hammer Museum of Art and Culture Center in California, who decades earlier brought valuables nationalized by the Soviets into the United States and sold books, paintings, jewels and much more in American department stores as well as antique shops.
On November 11, 2011, the Gallery suddenly announced that it was shutting down and going out of business. The apparent reason for closing this venerable institution was the sale of dozens of works falsely attributed to the high-ticket twentieth century artists such as Jackson Pollock, Mark Rothko, and Robert Motherwell. The Gallery and its principles and agents were subsequently sued for fraud, racketeering, breach of contract, breach of the covenant of good faith and fair dealing, unjust enrichment and more.
Recognized for its significance in the field, parts of the Gallery’s archives were purchased by the Getty Institute in 2012. The archive contained letters written by the preeminent nineteenth and twentieth century collectors and artists, including Léon Bakst, Alexander Calder, Edgar Degas, Greta Garbo, Paul Gauguin, Sarah Bernhardt, Childe Hassam, Winslow Homer, Rockwell Kent, Henri Matisse, Irving Penn, Mark Rothko, John Singer Sargent, and Edward Steichen.
The Gallery had been in existence for more than 160 years and its demise was a sad chapter in the American art and business history. This article will explore select cases that map a footprint the Gallery left on the American legal history.
The first legal action on record involving the Gallery, in a role of a plaintiff, dates back to 1891. Michael Knoedler tried to stop successor in interest to the French gallery from operating under the name he was using for his business. In 1887, three decades after he bought out the the New York concern, new owners of the French gallery owners opened another storefront in New York City, operating under the name of “Goupil & Co., of Paris; Boussod, Valadon & Co., successors.” The name was confusingly similar to that used by Knoedler, who has been doing business under the name of “Goupil & Co., M. Knoedler & Co., successors” since the 1850s. Nevertheless, the court held that the acts of the defendants did not “depreciate the value of the good-will of the concern bought by M. Knoedler in 1857,” and that Knoedler did not acquire “the exclusive right to use the name of Goupil & Co. as a trade designation in [the United States]”. In 1893, the Second Circuit Court of Appeals affirmed the ruling denying Knoedler’s request to enjoin the French art gallery from using the Goupil & Co business name in New York and the United States.
Next, in 1919, the Gallery protested assessment of import duties by the collector of customs at the Port of New York. In the case of M. Knoedler & Co. v. United States, 36 Treas. Dec. 63, T. D. 37898, G. A. 8229 (1919), the court considered proper classification of a bronze statue produced by Auguste Rodin. There, a board of three assessors agreed that Rodin was a professional sculptor of high order and his sculpture, imported by Knoedler, was produced (carved, remodeled and improved) by the artist. Thus the court held that the bronze statue was an ‘original’ and not subject to an ad valorem 15% fee as initially estimated. At the time the sculpture was valued at 12,000 francs.
Some of the Gallery-affiliated sales from the 1930s and 1950s would instigate legal action decades later. For example, between 1997 and in 2000, the Gallery found itself a third party defendant to the dispute between the Seattle Art Museum (the Museum) and Elaine Rosenberg, heir of Paul Rosenberg, an important Jewish art dealer in Paris, whose collection was confiscated by the Nazis during World War II. The facts of the dispute revealed that in 1954, the Gallery sold a 1928 Matisse painting, Odalisque, to Virginia and Prentice Bloedel, who bequeathed it to the Museum. The Museum took possession of the painting in 1991 and full ownership in 1996. Elaine Rosenberg sued the Museum to recover the painting, and the Museum impleaded the Gallery, alleging fraud and/or negligent misrepresentation at the time of the 1954 sale. The Gallery was able to get out of the dispute, with its costs reimbursed, by demonstrating that it was not a party to the Bloedel’s bequest to the Museum.
Ultimately, the Museum Board of Trustees decided to return Odalisque to the Rosenberg heirs in 1999, and following the return, the Museum and the Gallery reached an out-of-court agreement, whereby the Museum was able to chose “at least one painting from the inventory of the Knoedler gallery” and the Gallery waived its right to collect awarded attorney’s fees. The Director of the Gallery at the time, Ann Freedman, was quoted as saying “If there’s anything I would choose to emphasize, it’s that this settlement is larger than our specific case… Being in the world of art, this case has the potential to be part of a universal understanding and healing.”
Four years later, in 2004, the Gallery was defending itself for a sale of another painting stolen during World War II. In 1955, the Gallery sold a painting Spring Sowing by the Italian artist Jacopo da Ponte to the Springfield Library and Museum Association (the Association) for $5,000. The bill of sale stated that the defendant “covenants with the grantee that it [is] the lawful owner of the said goods and chattels; that they are free from all encumbrances; that it have [sic] good right to sell same as aforesaid; and that it will warrant and defend the same against lawful claims and demands of all persons.” However, in 1966, the Director General of the Arts for the Italian Government wrote to the Association’s director, claiming that Spring Sowing belonged to the Uffizi, a museum in Florence, Italy. Apparently the painting was on loan to the Italian Embassy in Poland before World War II, and it went missing during the War. The Association exchanged letters with the Gallery staff and Italian officials, and while the Gallery staff acknowledged that probably this painting was the one stolen from the embassy, little action was taken until the early 2000s, when the Italian government reached out again to the Association. Following the 2001 return of the painting, the Association sued the Gallery alleging breach of contract, breach of implied warranty, fraud and deceit, negligence and misrepresentations, among other counts. The ultimate decision or the terms of a settlement between the Association and the Gallery are not public; however, the court refused to dismiss this case even though the Gallery argued that the plaintiff’s actions were time barred. In fact, the court refused to decide the case at the pleading stage, and found that the Museum may be able to argue equitable estoppel to overcome the Gallery’s time limitations argument, ruling that the statute of limitation was tolling since the 1960s.
Ann Freedman turned out to be the last of the Gallery directors. Now a principle of another art gallery at 25 East 73rd Street in New York City, called FreedmanArt, Freedman worked at the Knoedler Gallery from 1977 through 2009.
When venerable establishments like the Gallery crumble, the aftershocks tend to reverberate far and wide. The circumstances of its demise in particular, sale of numerous forgeries at high market value prices, triggered many legal proceedings. The fakes came from a single source, an art dealer named Glafira Rosales, who offered the Gallery dozens of “previously unknown works painted by important Abstract Artists.” Rosales provided only basic background about the original collector of these works, but the art world was eager to embrace a crop of fresh Pollocks, Rothkos, Klines and other prized artists. Many art experts, including curators with the leading galleries and authors of catalogue raisonnes, seasoned collectors and gallerists, such as Ann Freedman, viewed the works offered by Rosales and believed them to be authentic. As more heretofore unseen works were entering the market, Rosales fabricated provenance information, even allegedly naming Alfonso Ossorio, an artist and a collector, as a conduit from the famed artists to the anonymous collector as an explanation of their long lost status.
The too good to be true discovery of the Abstract Expressionist treasure trove was simply just that. On September 16, 2013, Rosales plead guilty to all counts brought against her, including charges of wire fraud, tax evasion, failure to file financial statements, money laundering, and more. She is facing a prison sentence of almost 100 years, revocation of her U.S. citizenship, as well as monetary penalties in excess of $80 million. Rosales is reportedly cooperating with the government, but that does nothing for the defunct Gallery.
Between 2011 and 2013, there were half a dozen legal actions started against the Gallery in the Southern District of New York, and complaints continue to materialize. First, on December 1, 2011, Pierre Lagrange, a businessman from London, filed a complaint against Knoedler Gallery LLC and Ann Freedman, having received a forensic report that showed that the work attributed to Pollock that he purchased from the Gallery for $17 million was a forgery. In 2012, John D. Howard sued Freedman, Rosales and the Gallery, accusing them of common-law fraud, breach of warranty, mistake and RICO violations, for selling him a fake Rothko for $8.4 million.
Next, in rapid succession, the Martin Hilti Family Trust, Domenico and Eleanore De Sole, Frances Hamilton White, David Mirvish Gallery Limited, and The Arthur Taubman Trust all sued to recover their losses on forgeries the Gallery sold to them from the Rosales Collection. For example, Frances Hamilton White brought action seeking compensatory and punitive damages for the sale of a fake Pollock. Together with her ex-husband, she purchased a purported Jackson Pollock painting for $3.1 million, which has since been determined to be a forgery. In the complaint, the plaintiff submitted that she “chose to acquire art through Knoedler because of its reputation as New York City’s oldest art gallery.” She purchased multiple works for about $5 million because she and her former husband relied on the “knowledge, experience and sterling reputation” of the Gallery and its staff. The collectors tried to unwind the sale when the work was declined on consignment by an auction house because it did not appear in a Pollock catalogue raisonne. White alleged that the defendants “profited greatly from the fraudulent sale(s),” namely Rosales received about $670,000 for her “Pollock”, a price well below market value, while the Gallery and its agents kept more than $2.4 million.
The most recent complaint to name the Gallery as defendant was filed on August 30, 2013. Michelle Rosenfeld Galleries sued two collectors, Martin and Sharleen Cohen, and Knoedler Gallery LLC, because Rosenfeld felt threatened that its art sales from 1997 and 1998 were under suspicion by the Cohens. These clients allegedly requested a refund for a Pollock and a de Kooning Rosenfeld sold to the Cohens (having first purchased them from the Gallery). Rosenfeld is seeking declaratory judgment that any claim by the Cohens is barred as a matter of controlling law, that any continued pursuit of refund would be frivolous and merit compensation of Rosenfeld’s legal expenses. Lastly, Rosenfeld requests an indemnification by the Gallery against any purported liability in case the claim by the collectors proceeds.
According to Freedman, Knoedler sold about 40 paintings from the Rosales Collection. In a conservative prognosis, more suits against Knoedler are coming down the legal conveyer belt. The aftershocks of the Gallery’s demise are also leaving marks in the courts. Most recently, Ann Freedman, named defendant in some of the lawsuits, brought a legal action of her own. In Freedman v. Grassi, she alleges that another art dealer, Marco Grassi owner of Grassi Studios gallery, defamed her when his opinion of Freedman’s due diligence in investigating the Rosales Collection appeared in the New York Magazine. Grassi was quoted as saying, “It seems to me Ms. Freedman was totally irresponsible, and it went on for years… Imagine people coming to someone and saying every painting you sold me is a fake. It is an unthinkable situation. It is completely insane. A gallery person has an absolute responsibility to do due diligence, and I don’t think she did it. The story of the paintings is so totally kooky. I mean, really. It was a great story and she just said, ‘this is great.’ by stating that she did not do her due diligence.”
Freedman alleges that she was acting in good faith and with due diligence conducted research into the provenance of the Rosales Collection. She alleges that Grassi deliberately published a false defamatory statement about her to harm her reputation, and thus she seeks compensatory damages, nominal damages and punitive damages, as well as judgment interest allowable by law, attorney fees, legal costs and any other appropriate relief. Whether Freedman’s case survives pretrial motions or not remains to be seen. However, the Gallery is now figuring in association with a First Amendment and freedom of speech dispute.
Even posthumously the Gallery finds itself in a rare situation having shaped the habits of generations of collectors, going out of business with a bang and not a whisper, and having been sued multiple times. The way things are developing, it may merit the prize for the most sued art galleries of the modern times, second perhaps only to Salander-O’Reilly. However, as the Rosales conspiracy fades away, and the complete history of the Knoedler Gallery waits to be written, what is worth emphasizing is that this venerable Gallery will more likely be remembered for its avant-garde aesthetic and the authentic gems it dealt in rather than the fakes and legal disputes that marred its last chapter. Having left an indelible mark on the world of art in the United States, the Gallery’s legacy is larger than the series of recent and pending cases.
On September 30, 2013, U.S. District Judge Paul G. Gardephe ruled in de Sole and Howard actions against Knoedler Gallery, Ann Freedman, Glafira Rosales and other Defendants. The Judge dismissed all claims of wrongdoing against the gallery owner, Michael Hammer; but he denied most motions to dismiss charges against Freedman and Rosales, such as the charges of fraud, unilateral and mutual mistake, fraudulent concealment, and aiding and abetting fraud. Naturally, the court granted Plaintiffs leave to amend their complaints.
Since the scandal broke in the press, at least 10 cases have been brought against the gallery and its affiliates. The artist who is believed to have created all of the Rosales forgeries, Pei–Shen Qian, fled to China from where he had been quoted as saying that “he was duped too”. Before the Knoedler legal saga ends, collectors should heed the warning of John Cahill, a New York-based art attorney wrote “[if] impact of the Knoedler scandal will likely have repercussions on the New York art market for years to come, it highlights one of the risks that art purchasers should now be aware of. While maintaining the confidentiality of sellers is an accepted part of the art world, the Knoedler case highlights the importance of actually knowing the identity of the consignor.”
*Note from the Editors: This article is reprinted with permission from: Entertainment, Arts and Sports Law Journal, Fall/Winter 2013, Vol. 24, No. 3, published by the NYS Bar Association, One Elk Street, Albany, NY 12207.
- Knoedler v. Boussod, 47 F. 465, 1891 U.S. App. LEXIS 1455 (C.C.D.N.Y. 1891).
- United States Dept. of the Treasury, United States. Customs Court. Treasury Decisions Under Customs and Other Laws, Vol. 36, Jan.-Jun.1919 (Washington, Government Printing Office, 1919) 63.
- Schapiro v. Commissioner, T.C. Memo 1968-44, 1968 Tax Ct. Memo LEXIS 254, 27 T.C.M. (CCH) 205, T.C.M. (RIA) 68044 (T.C. 1968).
- People v. Broady, 5 N.Y.2d 500, 158 N.E.2d 817, 186 N.Y.S.2d 230, 1959 N.Y. LEXIS 1447, 74 A.L.R.2d 841 (N.Y. 1959).
- Ward Eggleston Galleries v. United States, 1955 Cust. Ct. LEXIS 7 (Cust. Ct. Jan. 4, 1955); Thannhauser v. United States, 14 Cust. Ct. 62, 1945 Cust. Ct. LEXIS 7 (Cust. Ct. 1945).
- Knoedler v. Boussod, 47 F. 465, 1891 U.S. App. LEXIS 1455 (C.C.D.N.Y. 1891), aff’d, 55 F. 895, 1893 U.S. App. LEXIS 2026 (2d Cir. N.Y. 1893).
- Springfield Library & Museum Ass’n v. Knoedler Archivum, Inc., 341 F. Supp. 2d 32, 2004 U.S. Dist. LEXIS 20438 (D. Mass. 2004); Rosenberg v. Seattle Art Museum, 42 F. Supp. 2d 1029, 1999 U.S. Dist. LEXIS 4302 (W.D. Wash. 1999).
- James Panero, “‘I am the Central Victim’: Art Dealer Ann Freedman on Selling $63 Million in Fake Paintings,” NY Mag. (Aug. 2013) available at http://nymag.com/daily/intelligencer/2013/08/exclusive-interview-with-ann-freedman.html.
- Press Release, The Getty Trust, “Getty Research Institute Acquires Archive of the Historic Knoedler & Company Gallery,” (Oct. 18, 2012), available at http://news.getty.edu/press-materials/press-releases/knoedler-and-company-gallery-archives.htm.
- Rosenberg v. Seattle Art Museum, 124 F. Supp. 2d 1207, 2000 U.S. Dist. LEXIS 7770 (W.D. Wash. 2000), aff’d, 42 F. Supp. 2d 1029, 1999 U.S. Dist. LEXIS 4302 (W.D. Wash. 1999).
- John Cahill, “An Update on the Knoedler Law Suits” Sotheby’s (4 May 2014), available at http://www.sothebys.com/en/news-video/blogs/all-blogs/art-law/2014/06/an-update-on-the-knoedler-gallery-lawsuits.html
- Complaint, in Freedman v. Grassi, Supreme Court of New York, Filed on Sept. 11, 2013, 1.
- Lagrange et al v. Knoedler Gallery, LLC, 1:2011 cv08757 (S.D.N.Y. Dec. 1, 2011).
- Howard v. Freedman et al., 1:2012-cv-05263 (S.D.N.Y. Jul 6, 2012).
- Konowaloff v. Metropolitan Museum of Art, 702 F.3d 140 (2d Cir. 2012).
- De Sole v. Knoedler Gallery, LLC, 2013 U.S. Dist. LEXIS 20368, 2013 WL 592666 (S.D.N.Y. Feb. 14, 2013).
- The Martin Hilti Family Trust v. Knoedler Gallery, LLC et al., 1:2013-cv-00657(S.D.N.Y. Jan 29, 2013).
- White v. Freedman et al., 1:2013-cv-01193 (S.D.N.Y. Feb. 21, 2013).
- David Mirvish Gallery Limited et al v. Knoedler Gallery, LLC, 1:2013-cv-01216 (S.D.N.Y. Feb. 22, 2013).
- The Arthur Taubman Trust et al v. Knoedler Gallery, LLC et al., 1:2013-cv- 03011 (S.D.N.Y. May 3, 2013).
- Rosenfeld v. Knoedler Gallery, 653030/2013 (Aug. 30, 2013).
About the Author: Irina Tarsis, Esq., specializes in art law, provenance research and cultural heritage law. She may be reached at firstname.lastname@example.org.
Disclaimer: This article presents general information and is not intended as legal advice.
By Angelea Selleck
After nearly three years of legal battles between the United States government and the St. Louis Art Museum (the “SLAM”), the forfeiture case known as U.S. v. Ka-Nefer-Nefer (8th Cir. Jun 2014) has finally come to an end. Ka-Nefer-Nefer was an ancient Egyptian noblewoman during the Nineteenth Dynasty. The case was concerned with the ownership of the sacred funerary mask of Ka-Nefer-Nefer, which the SLAM purchased in good faith for half a million dollars from Phoenix Ancient Art, an international art gallery based in Switzerland with a murky past. Years following the purchase, Egyptian authorities approached the SLAM, claiming that the mask was stolen and illegally removed from Egypt. Upon this realization, the United States government attempted to seize the mask from the SLAM with a civil forfeiture action. Instead of complying with the government’s request, the SLAM sued the US government to assert their ownership. On 12 June 2014 the Eighth Circuit Court of Appeals decided that the mask would to stay in the possession of the SLAM.
Before discussing the details of the case, it is important to elaborate briefly on the process that museums undergo when acquiring an antiquity. Most museums in North America abide by the Code of Ethics set out by the International Council of Museums (ICOM) and the Association of Art Museum Directors (AAMD). The SLAM is a member of the AAMD and has adopted the principles set out in the Guidelines on the Acquisition of Archaeological Material and Ancient Art, which, among other requirements, state that museums should thoroughly research the ownership history of a work prior to the acquisition and make a strong effort to obtain all written records and documentation regarding its history. More importantly, the Guidelines also emphasize that museums should not acquire a work unless the provenance research confirms that the work was outside its country of discovery before 1970, which reflects the criteria in UNESCO’s 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The SLAM is not a member of ICOM however, which tends to carry more weight in ethical matters.
It is also important to point out that it is rather uncommon for museums to sue the government when asked to return an object. Patty Gerstenblith, DePaul School of Law Professor, commented that this is a very unusual response to forfeiture claims and it is the first time a public institution like a museum decided to expend its funds to proactively sue the government. Neither the museum’s nor the government’s litigation costs have been disclosed as of yet.
The United States government claims that the mask was stolen before it was brought into the country, thereby violating the Tariff Act of 1930. The United States filed a motion based on the National Stolen Property Act (NSPA), which allows the US government to prosecute on behalf of a foreign government and defend their national ownership law. The Act serves to deter U.S. citizens from dealing with international stolen goods. The strength of NSPA was illustrated in the landmark case U.S. v Schultz, where prominent art dealer Frederick Schultz was convicted of importing and selling looted Egyptian antiquities.
In the Schultz case, the U.S. court upheld Egypt’s patrimonial law, Egyptian Law on the Protection of Antiquities Law 117, which asserts Egyptian public ownership of antiquities and restricts private possession or ownership of cultural property. This law is arguably one of the world’s clearest ownership laws and probably the most efficient route for repatriation by stating all antiquities are the property of the government. Upholding Egypt’s patrimonial laws could have been a more efficient way to return the mummy mask to its original owners.
According to Egyptian records, the Ka-Nefer-Nefer mask was excavated in 1952 and registered as Egyptian property a year later. It was then placed in a storage facility at Saqqara and later sent to Cairo in 1966. It was not until 1973, during a routine inventory, that museum authorities noticed the mask was missing. The Museum has no record of sale or transfer of the mask between 1966-1973. The SLAM maintains that they conducted due diligence and purchased the mask from reputable sources. Furthermore, the SLAM claims that prior to the purchase, they inquired about its provenance with the Art Loss Register, the International Foundation for Art Research, INTERPOL and consulted with the then-director Mohammed Saleh, of the Cairo Museum. All of these institutions had confirmed that this piece was licit and there were no reports of the mask missing at the time of the proposed purchase.
In order to assert their ownership of the mask, SLAM maintained that they purchased the mask in good faith and that the statue of limitations had expired when the United States filed for forfeiture. The SLAM claims that the US government received notice of the importation in 2005 but only filed the forfeiture complaint until 2011. Due to the fact that the statute of limitations in the United States is five years, and more than five years have passed, SLAM believes that they have rightful ownership of the mask.
In April 2012, the U.S. District Court, Eastern District of Missouri, dismissed the US government’s forfeiture complaint for failing to articulate with specificity “how the mask was stolen and smuggled, or how it was brought into the United States contrary to law”. Afterwards, the US filed a motion to reconsider when the government revealed new information that could support an amended complaint. However, the Court denied this motion and the parties attempted to settle this matter out of court. The negotiations failed and US government then appealed to the Eighth Circuit Court to re-open the case . The issue raised in their appeal is whether the District Court abused its discretion in denying the government’s post-dismissal motion for leave to file an amended civil forfeiture complaint.
Oral arguments took place in mid-January 2014, during which time Circuit Court Judge James Loken held that the US government made mistakes in the eyes of the District Court and that “they will have to beg for a do-over”. The Court resumed on 12 June 2014 where the Court of Appeals affirmed the District Court’s procedural ruling. Judge Diana Murphy acknowledged that the lower court did not abuse its discretion when dismissing the government’s forfeiture case. Murphy also emphasized that “the government was dilatory” with their amended complaint. In addition, she included cautionary comments about the subject matter of the case:
“The substantive issues underlying this litigation are of great significance, and not only to museums which responsibly seek to build their collections. The theft of cultural patrimony and its trade on the black market for stolen antiquities present concerns of international import…
…While this case turns on a procedural issue, courts are bound to recognize that the illicit sale of antiquities poses a continuing threat to the preservation of the world’s international cultural heritage. Museums and other participants in the international market for art and antiquities need to exercise caution and care in their dealings in order to protect this heritage and to understand that the United States might ultimately be able to recover such purchases.”
While the case of the US v. Mask of Ka-Nefer-Nefer has been settled, it will be interesting to see if there will be any future diplomatic actions undertaken by either the United States or Egypt for the return of the Ka-Nefer-Nefer mask.
- US v. Mask of Ka-Nefer-Nefer, No. 12-2578 (8th Cir. June 12, 2014), aff’ig 11-CV-504-HEA (E.D. Mo. Mar. 31, 2012).
- Guidelines on the Acquisition of Archaeological Material and Ancient Art, Association of Art Museum Directors (2013), https://aamd.org/sites/default/files/document/Guidelines%20on%20the%20Acquisition%20of%20Archaeological%20Material%20and%20Ancient%20Art%20revised%202013_0.pdf
- Malcom Gay, For the St. Louis Art Museum, A Legal Victory Raises Ethical Questions, The Atlantic (May 30, 2012, 12:34 PM), available at http://www.theatlantic.com/national/archive/2012/05/for-the-st-louis-art-museum-a-legal-victory-raises-ethical-questions/257839/
- 19 U.S.C. § 1595a
- 18 USC Section 2314
- Victoria A. Russell, Don’t Get SLAMmed into Nefer Nefer Land: Complaints in the Civil Forfeiture of Cultural Property, 4 Pace I.P., Sports & Entertainment Law Forum, (2014)
- Patty Girstenblith Enforcing International Cultural Heritage Law, 79-108, (Francesco Francioni & James Gordley eds., Oxford University Press 2013).
- Ricardo A. St. Hilaire, District Court Dismisses Government’s Case to Forfeit SLAM Mummy Mask, Cultural Heritage Lawyer (April 2, 2012), http://culturalheritagelawyer.blogspot.com/2012/04/district-court-dismisses-governments.html
- —, SLAM Mummy Mask Appeal: “You Now Have to Beg for a Do-Over”, Cultural Heritage Lawyer (Jan. 14, 2014), http://culturalheritagelawyer.blogspot.com/2014/01/slam-mummy-mask-appeal-you-now-have-to.html.
About the Author: Angelea Selleck is a contributing writer with Center for Art Law; she is a research intern at Iran Human Rights Documentation Center in New York.
By Emma Kleiner
Stories of art forgeries capture the public’s imagination in a singular way: fascination centers upon the art itself and the disbelief that collectors, galleries, and professionals could have been misled by a fraud. Today, the expanding and profitable international art market has a correspondingly lucrative market in art forgery. While there have always been ways for forgeries to enter the art market, today’s forgery market is enlarged by the ease of creating fake masterpieces coupled with the multitude of sites where fakes can be sold—at auction, through galleries, or online. The negative publicity generated by any involvement with fine art forgeries is usually enough to steer away potential buyers or admirers; however, in a small set of cases the hoaxes or forgeries themselves become well-known in their own right and take on an infamy of their own. While no centralized national or international system for analyzing how to best regulate the art market exists, the recent strands of art forgery cases around the globe offer policy considerations to help eliminate the market for forgeries.
The art market has rebounded almost to its 2008 pre-crisis level. In 2013, the international art market registered sales of $64.5 billion, which was “close to its highest ever recorded level.” However, buyers are wary of collecting unfamiliar artists, and art purchases have largely focused on household names such as Francis Bacon, Andy Warhol, and Yves Klein. The lucrative art market creates a market ripe for talented forgers, who view art forgery as a very profitable enterprise. Based on a number of recent incidents, it appears that successful art forgeries are easier than ever to execute, with wealthy collectors eager to believe in, and ready to fuel, the high prices commanded by art masterpieces. Just recall the now defunct Knoedler Gallery, which closed in 2011 following the discovery that the gallery had sold $63 million of fakes. Although Ann Freedman, the gallery’s former president, insisted that she had no knowledge that she was selling forged modern classics, there were basic elements that should have alerted her to that fact. In one painting the signature was visibly spelled incorrectly: the painting was signed “Pollok” instead of the correct spelling of “Pollock.” Even so, the painting, which was purchased by the gallery for $230,000, was eventually sold to a Wall Street executive for $2 million.
With the new era of online art retailers, the art forgery market is becoming even more decentralized and easily profitable. In June 2014, John Re, an East Hampton painter, was arrested after netting $1.9 million selling forged Jackson Pollock paintings to private collectors and online through eBay. This forger used shell bidders to drive up prices of the fakes on eBay while assuring bidders that his paintings were “real.” Similarly, British amateur artist Geoffrey Spilman was arrested last year after selling forged modern masterpieces on eBay. Consequently, Spilman was banned for life from eBay. These events highlight the issue that the art market is quickly moving online. Online buyers may present an easier target for forged artwork due to the lack of pre-auction previews, the absence of quality records, and the awareness that auction experts did not vet the pieces. This new area of selling and buying art necessitates strong guidelines for digital art markets.
The abundance of art forgeries sold at auction, online, through galleries, and by private collectors has created a ripple effect in the art market. The repercussions of buying and selling fakes are beginning to be reflected in the management and practices of artists’ reputations and foundations. A recent trend is the increasing reluctance of artist foundations to recognize any new or uncovered artwork as authentic. Artist foundations do not want to become targets for litigation if an authentication dispute flares up between individuals, and thus many foundations no longer offer authenticating services. The Andy Warhol Art Authentication Board, Inc., created in association with the Andy Warhol Foundation for the Visual Arts, was dissolved in 2012. The authentication boards of the Keith Haring Foundation and the estate of Jean-Michel Basquiat were likewise dissolved in 2012. Such disassociation largely shields artist foundations from litigation alleging the foundation authenticated a forgery. However, this insulation not only affects buyers and sellers wishing to determine the authenticity of artwork, it also negatively affects art historical knowledge of these artists. Unauthenticated works cannot be included in official catalogues raisonnés and will remain unknown to future scholars and collectors. Therefore, if artist foundations refuse to analyze problematic artwork, then future scholarship will suffer. This larger impact of the forgery market is critical to appreciating the urgency with which the proliferation of fakes must be curbed. The forged art market affects not only buyers and sellers; it also affects the collective knowledge of future generations.
Usually, the public relations nightmare of being caught in an art forgery scandal is enough to destroy reputations, as demonstrated by the closing of the Knoedler Gallery. However, as mentioned above, the hoaxes themselves sometimes become famous in their own right due to the mastery of the forgery. For example, an exhibition is being planned for fake Amedeo Modigliani statues to be exhibited in Livorno, Italy, the artist’s hometown. Three carved heads were found in July 1984 as part of a hoax orchestrated by local students. Modigliani is famously a popular target for art forgers, and thus this episode become part of the legacy of Modigliani himself and his hometown of Livorno. Commenting on the plan for this exhibition, Livorno Culture Councilor Mario Tredici stated, “For a long time we have wanted to tell a story that was unique in the 20th century and is sure to be a tourist attraction.”
Today, there is no unified national or international approach to curbing the forged art market. The current debate in India, where the art market is currently encountering an unprecedented number of uncovered fakes, might be helpful to informing policy decisions in the United States, where cases concerning art forgeries are fractured across jurisdictions and courts. Art experts in India have called for contradictory safety measures. Some express favor for creating a national authentication body in charge of art sales. However, other scholars have expressed a less common alternative preference for deregulating the currently tightly regulated art market in India. In a recent Op-Ed, Girish Shahane, Artistic Director of the India Art Fair, explains how the tightly controlled national art market in India has stunted the development of the art market and encouraged the proliferation of fakes through the promise of great profit: “Expertise and transparency have been strangled by the Antiquities Act, which makes the owning and selling of antiquities difficult, their export illegal, and restricts trade in the work of a number of modern artists labeled national treasures . . . While there is no silver bullet solution for the problem of forgeries, partial fixes emerge as a natural consequence of trade.” This proposal suggests that greater cooperation and unified trade practices amongst art industry professionals around the globe would create mutual responsibility. The opaqueness of the art market is in part responsible for the circulation of forged artwork, and, instead of effectively shutting down the art market through the creation of regulatory bodies, perhaps it is time for the art world to acknowledge the damaging effects of fakes and open up new pathways to international discussion.
- Eileen Kinsella, Dodgy eBay Sellers Peddle Tall Tales and Fake Art, July 9, 2014, Artnet News, http://news.artnet.com/market/dodgy-ebay-sellers-peddle-tall-tales-and-fake-art-57412.
- Girish Shahane, As fakes unnerve India’s art market, the trade is pushing for an antiquated solution, July 7, 2014, Quartz India, http://qz.com/230750/as-fakes-unnerve-indias-art-market-the-trade-is-pushing-for-an-antiquated-solution.
- Jennifer Gould Keil, Painter charged with making fake Jackson Pollock paintings, July 1, 2014, New York Post, http://nypost.com/2014/07/01/painter-charged-with-making-fake-jackson-pollock-paintings.
- Jennifer Maloney, The Deep Freeze in Art Authentication, April 24, 2014, The Wall Street Journal, http://online.wsj.com/news/articles/SB10001424052702304279904579518093886991908.
- Livorno exhibit of Modigliani fakes, May 19, 2014, ANSA, http://www.ansa.it/english/news/lifestyle/arts/2014/05/19/livorno-exhibit-of-modigliani-fakes_d6adbb91-4237-4782-9edb-7ab608f65783.html.
- London Auctions Cap a Go-Go Season, July 6, 2014, N.Y. Times, http://www.nytimes.com/2014/07/07/arts/international/london-auctions-cap-a-go-go-season.html.
- Patricia Cohen, Note to Forgers: Don’t Forget the Spell Check, June 11, 2014, N.Y. Times, http://www.nytimes.com/2014/06/12/arts/design/note-to-forgers-dont-forget-the-spell-check.html?_r=0.
- Robert Mendick and Claire Duffin, Rogue’s gallery of fake art on eBay, June 29, 2014, The Telegraph, http://www.telegraph.co.uk/culture/art/10933016/Rogues-gallery-of-fake-art-on-eBay.html.
- TEFAF Art Market Report 2014, 2014, Arts Economics, http://artseconomics.com/project/tefaf-amr-2014.
- E. McMorrow, East Hampton Ex-Con Arrested in $1.9 Million Art Fraud, June 23, 2014, The East Hampton Star, http://easthamptonstar.com/Lead-article/2014623/East-Hampton-Ex-Con-Arrested-19-Million-Art-Fraud.
About the author: Emma Kleiner is a second-year student at Stanford Law School.
Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitute for seeking representation.
By Elena Kravtsoff, Esq.*
For the first time since August 1, 2009, the U.S. Copyright Office instituted a number of fee changes that took effect on May 1, 2014. Prior to instituting the changes, the Copyright Office issued a Notice of Inquiry on January 24, 2012, a Notice of Proposed Rulemaking on December 6, 2012, and reported receiving a total of 138 public comments from a “wide range of stakeholders,” including individual artists and major associations.
In its Final Rule published to the Federal Register, the Copyright Office reported that the majority of the public comments expressed concern about the fee increases that the Copyright Office proposed in the Notice of Proposed Rulemaking. In the Final Rule, the Copyright Office repeatedly emphasized that in adopting the new fee schedule, it was attempting to balance offsetting the costs that it incurs with the public interest of having a robust system containing information about existing copyright.
David Christopher, Chief of Operations at the Copyright Office, indicated in an interview with the author that the Copyright Office saw a decrease of about 3% in the number of applications received in April, May, and June of 2014 versus the same time period in 2013. Christopher said that this decrease is not surprising given that a drop in applications occurs whenever the Copyright Office changes its fee scheme, and that the number of applications will likely normalize in the next three to six months. Christopher stated that the 3% dip is less of a decrease than was anticipated by the Copyright Office and is significantly less than the 16% decrease that accompanied the 2009 fee changes. Christopher attributed this to the current two tiered registration fee schedule: While the standard electronic registration fee, which largely affects less price sensitive applicants, increased to $55, the fee an application submitted by a single author for a single work not made for hire, which typically affects more price sensitive applicants, remained unchanged at $35.
Some notable fee changes are as follows:
For a standard registration, the Copyright Office increased the online application fee from $35 to $55 and the paper application fee from $65 to $85. The Copyright Office stated that these increases will allow it to recover a larger percentage of its costs. In explaining the higher paper-filing fee, the Copyright Office indicated that applications filed online—which constitute 91% of new copyright claims—are less costly than paper applications and pointed that online applications take from two to five months to process, while paper applications take from five to eleven months.
With regard to the $20 increase to the online application fee, the Copyright Office explained that a $45 filing fee was reduced to $35 following the launch of the eCO system in order to encourage electronic filing, therefore $55 is only a $10 increase over the non-discounted filing fee of $45. While the Copyright Office had initially proposed an increase to $65 in the Notice of Proposed Rulemaking, it reported receiving public comments expressing concern about an increase, and thus decided to set the new fee at $55.
In fact, at least some commentators advocated reducing the $35 fee. Gabriel Michael, who indicated that he is a university instructor, argued that even the $35 fee is too costly and deters many qualified applicants from applying for and receiving copyright protection. A comment submitted by the Graphic Artists Guild echoes Michael’s sentiment by stating that according to a 2012 survey of graphic artists, 74% indicated that the $35 fee was too high and prevented them from registering works they would have liked to register. Many individuals who work in creative industries also submitted comments and pointed out that raising the fee during tough economic times will make it either difficult or impossible for them to register their works.
With regard to the increased paper-filing fee, the Copyright Office noted that the increase to $85 is significantly lower than the $100 fee that was proposed in the Notice of Proposed Rulemaking. The Copyright Office indicated that even though cost increases were necessary in light of budget and cost considerations, given the “significant public interest in registration, including through a paper based process,” the increases should be “more modest” than originally proposed.
For a single registration application filed online by a single author for a single work not made for hire, the Copyright Office left the fee at $35. The Copyright Office noted that while the Notice of Proposed Rulemaking proposed increasing this fee back to $45—the fee was reduced to $35 in 2009 in order to encourage electronic filings—it decided to keep the fee at $35, partly due to a “large number of public comments advocating for a lower fee,” including from individuals from performing and visual arts. The Copyright Office emphasized its commitment to “maintaining an affordable copyright registration system” and pointed out that if individual authors do not register and become a part of the public database, they may be more difficult to find than any other group of copyright owners.
The Copyright Office increased the electronic filing fee for group registration of published photographs or registration of automated databases that predominately consist of photographs and updates from $35 to $55, while leaving the paper filing fee at $65. The Copyright Office explained the increase of the electronic filing fee simply by stating that it was increased to be consistent with the fees for other online applications. While the Copyright Office initially proposed increasing the paper application, it decided against it after receiving comments indicating that “photographers face particular challenges with the registration process due to the large quantities of works they often create in brief periods of time.”
Finally, the Copyright Office decreased the fee for renewal application from $115 to $100 and the fee for renewal addendum from $220 to $100. The Copyright Office explained that these reductions are due to the “unique nature of renewals in the history of copyright law and recent experiences in reviewing renewal documents.” Specifically, while prior law required some copyright claims to be renewed on their 28 year anniversary in order to maintain validity for the rest of their term, the current Copyright Act no longer requires a renewal in order to maintain protection for the duration of the full copyright term. The Copyright Office indicated that apparently as a result of the new law and increased fees, over the past seven years it has been a “dramatic” drop in renewal applications. The Copyright Office recognized that “dwindling… renewal registrations diminish the public record,” which harms its mission to “serve as a robust repository of copyright information,” and lowered the fee in order to encourage renewal claim filing. The Copyright Office lowered the fee for renewal addendums—which document a work’s copyright status—in another attempt to encourage applications and benefit its public record keeping.
Copyright Office Fees: Registration, Recordation and Related Services; Special Services; Licensing Division Services; FOIA Services, 79 Fed. Reg. 56, 15910 (March 24, 2014) (amending 37 C.F.R. pts. 201 and 203), available at http://www.copyright.gov/fedreg/2014/79fr15910.pdf.
Gabriel Michael, Comment to Notice of Proposed Rulemaking, Copyright Office Fees, 77 Fed. Reg. 60, 18742 (2012), available at http://www.copyright.gov/docs/newfees/comments/02232012/gabriel-michael.pdf.
Graphic Artists Guild, Comment to Notice of Proposed Rulemaking, Copyright Office Fees, 77 Fed. Reg. 60, 18742 (2012), available at http://www.copyright.gov/docs/newfees/comments/05142012/Graphic_Artists_Guild.pdf.
Comments to Notice of Proposed Rulemaking, Copyright Office Fees, 77 Fed. Reg. 60, 18742 (2012), available at http://www.copyright.gov/docs/newfees/comments/05142012/.
About the Author: Elena Kravtsoff is an attorney based in Washington, DC. She may be reached at email@example.com.
Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.
*From the Editors: The following article first appeared on ArtNet. It is a response to two recent articles, an editorial authored by Ronald S. Lauder, a New York businessman and art collector, and a related commentary by Nicholas O’Donnell, Boston-based attorney and editor of Art Law Report. The article is reprinted with the permission of the author, attorney for Leone Meyer.
By Pierre Ciric*
In his article titled “Lauder Editorial on Stolen Art and Museums Fails the Glass House Test,” Nicholas O’Donnell attempts to respond to Ronald S. Lauder’s editorial published in the Wall Street Journal on June 30, 2014, titled “Time to Evict Nazi-Looted Art From Museums.”
O’Donnell attempts to find legal shortcomings in Lauder’s editorial, which simply expresses the need for art museums to act responsibly by returning Nazi-looted artwork instead of raising technical defenses and mere pretexts to deny the rights of the claimants.
In his article, O’Donnell refers to the ongoing case brought by Léone Meyer against the University of Oklahoma, among other defendants, to obtain the restitution of “La bergère rentrant des moutons” (Camille Pissarro, 1886), currently on permanent display at the Fred Jones Jr. Museum of Art in Norman, Oklahoma.
Although O’Donnell—counsel to David Findlay, Jr. Gallery, a defendant no longer involved in the case—recognizes that the recent court decision is limited to whether the Oklahoma defendants could be sued in New York, he repeatedly brings up a 1953 Swiss court decision involving Camille Pissarro’s La Bergère as grounds for why Léone Meyer’s claim should fail, and why Mr. Lauder’s argument is baseless.
O’Donnell’s argument fails the common sense test. First, no one disputes that the Nazis stole La Bergère from Léone Meyer’s family.
Second, the 1953 Swiss court decision was not decided based on a late claim, as O’Donnell argues, but was decided against Léone Meyer’s father because he could not prove the “bad faith” of the art dealer who acquired La Bergère after it crossed the Swiss border from France.
Third, prior Swiss decisions involving looted art have long been held as doubtful or baseless in several U.S. jurisdictions. Even the Swiss government itself recognized in 1998 that the deck was stacked against claimants who wanted to file art restitution claims in Switzerland after World War II. New York courts have found/determined that “Swiss law places significant hurdles to the recovery of stolen art, and almost ‘insurmountable’ obstacles to the recovery of artwork stolen by the Nazis from Jews and others during World War II and the years preceding it.”
Finally, O’Donnell misses the point of Mr. Lauder’s editorial. As French government officials have recently stated in a public forum dedicated to France’s efforts to track and restitute looted art, the time for “clean museums” has come. Hiding behind technicalities and procedural loopholes to delay basic justice, i.e. restitution of looted property, is not morally appropriate, even less so when public institutions are involved.
Ronald Lauder is right. It is time for museums to do the responsible thing. It is time for museums to “clean” their collections of any tainted artwork by returning Nazi-looted artwork.
- Nicholas O’Donnell, Lauder Editorial on Stolen Art and Museums Fails the Glass House Test, available at: http://www.artlawreport.com/2014/06/30/lauder-editorial-on-stolen-art-and-museums-fails-the-glass-house-test/.
Ronald S. Lauder “Time to Evict Nazi-Looted Art From Museums,” The Wall Street Journal (June 30, 2014), available at: http://online.wsj.com/articles/ronald-lauder-time-to-evict-nazi-looted-art-from-museums-1404076759.
Abut the Author: Pierre Ciric is a New York attorney, the founder of the Ciric Law Firm, PLLC, and a board member of both the French–American Bar Association and the New York Law School Alumni Association.