Author: Irina Tarsis, Esq.

Restrictions on Ivory in the United States, U.S. Fish and Wildlife Service Director’s Order No. 210

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By: Chris Michaels, Esq.

Piano Keys, by Texasgurl
Piano Keys, by Texasgurl

The U.S. Fish and Wildlife Service recently enacted an order seeking to restrict the market for ivory in the United States; an action that may have unintended consequences. For example, in 2012, The New York Times ran an article noting that the market for upright pianos has plummeted in recent years. Formerly considered a “middle-class must-have” the cost of upkeep, coupled with the low cost of new electronic keyboards and foreign-manufactured uprights, caused many owners to discard their older upright pianos. Some of these relics of the past were outfitted with ivory – a material traditionally used to construct the keys. The resale of such ivory may now be subject to the newly enacted order.

While restrictions against the use and trade of ivory have been in place for years, there is an increased demand for ivory in emerging markets like China. In response to this trend, on 25 February 2014 the U.S. Fish and Wildlife Service (the “Service”), through Director Daniel M. Ashe, enacted Director’s Order No 210: Administrative Actions to Strengthen U.S. Trade Controls for Elephant Ivory, Rhinoceros Horn, and Parts and Products of Other Species Listed Under the Endangered Species Act. The Order was enacted to protect endangered species, namely African elephants, by regulating the ivory market in the United States. Specifically, it calls for strict enforcement of existing restrictions on the import, export, and interstate sale of ivory.

At first blush, the Service’s goal of protecting endangered animals through strict regulation of the market seems relatively straightforward. What is less straightforward, however, is the effect the enforcement of the restrictions will have on the sale of ubiquitous objects such as old musical instruments, chess sets, handguns, and other items that contain ivory. Until the new Order was enacted, these types of items could be sold within the United States with little concern for intervention by authorities. With the new Order in place it will become much more difficult to sell these items.

Pursuant to the Order, the interstate sale of ivory is strictly prohibited unless accompanied by an Endangered Species Act (“ESA”) permit. Transport is nonetheless allowed if the item can be qualified as “antique.” To comply with the “antique” exception, the importer, exporter, or seller must show that the object meets the following qualifications. The item:

  • Must be 100 years or older;
  • Must be composed in whole or in part of an ESA-listed species (of which there are approximately 2,140 endangered or threatened species under the ESA);
  • Must not have been repaired or modified with any such species after December 27, 1973 (the ESA was signed in to law by President Nixon on December 28, 1973); and
  • Is being or was imported through an endangered species “antique port.”

The specific “antique ports” include the following thirteen locations: Boston (MA); New York (NY) Baltimore (MD); Philadelphia (PA); Miami, (FL); San Juan, (PR); New Orleans, (LA); Houston, (TX); Los Angeles, (CA); San Francisco, (CA); Anchorage, (AK); Honolulu, (HI); and Chicago, (IL).

The ability to prove the above-mentioned criteria prior to a sale are extremely slim since the majority of antique ivory items lack provenance records.

In addition to restricting sales, the Order restricts the sale of musical instruments using ivory and also makes them difficult to import into the United States. The Order sets forth the following criteria that must be established in order to legally import the item:

  • It must have been legally acquired before February 26, 1976;
  • It must not have been subsequently transferred from one person to another person in the pursuit of financial gain or profit since February 26, 1976;
  • The importer must qualify for a Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) musical instrument certificate; and
  • The musical instrument containing elephant ivory must be accompanied by a valid CITES musical instrument certificate or an equivalent CITES document that meets the requirements of CITES Resolution Conf. 16.8.

Similar restrictions are now in place for objects containing ivory imported for traveling exhibition purposes. In other words, museums and foundations seeking to exhibit collections with ivory will likely find themselves struggling to meet the requirements set out in the Order. In fact, they are more likely to opt out of exhibiting objects containing or made of ivory to avoid incurring additional costs and risks associated with the exhibition.

The sentiment behind the Order is certainly praiseworthy, but it remains to be seen whether the overall chilling effect on the market for ivory in the United States will actually curb the poaching of African elephants. It surely will not have a chilling effect on continued demolition of antique pianos; however, art loans are another matter altogether.

Sources:

About the Author: 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, chriswmichaels@gmail.com, or on Twitter @CMichaels88.

Getty Seeks to Quiet Title of the Ansouis Diptych: Back to Legal Technicalities or End of an Era?

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By Emma Kleiner*

"The Stigmatization of St. Francis, and Angel Crowning Saints Cecilia and Valerian" (The Getty Museum)
“The Stigmatization of St. Francis, and Angel Crowning Saints Cecilia and Valerian” (The Getty Museum)

Employing a popular yet controversial legal tactic, in September 2013 the J. Paul Getty Museum (Getty), represented by Munger, Tolles & Olson LLP, sued in federal court in California seeking an order to quiet title to The Stigmatization of Saint Francis and The Crowning of Saints Cecilia and Valerian. Typically, this type of action is instituted to assert a party’s title to a piece of property, thus preventing claims by others to the property. If successful, any future legal action against the Getty by Geraud Marie de Sabran-Ponteves, the heir to the original owner of the work, would be barred.

In summer 2012, the counsel for Geraud Marie de Sabran-Ponteves, a French citizen, informed the Getty that its client was claiming to be the sole owner. Defendant Geraud Marie de Sabran-Ponteves alleged the artwork belongs to him as a component of a “long-running inheritance dispute”— a claim that the Getty asserts is erroneous. This lawsuit may be a test case for resuscitating technical defenses museums use seeking to keep works with disputed histories within their collections. Legal arguments like these are based on technicalities rather than the merits of a case, and the use of such arguments has a divisive history in the context of art title disputes.

For three decades, the Getty has prized The Stigmatization of Saint Francis and The Crowning of Saints Cecilia and Valerian, also known as the Ansouis Diptych, for being “a beautiful and well-preserved and devotional object” and “[u]nique in subject.”The Ansouis Diptych, currently valued at approximately $2.7 million, has been alternately attributed to a late fourteenth  century Avignon painter and to an early fourteenth  century Naples painter. The Getty purchased this work in 1986 from the Wildenstein & Company gallery, which in turn had purchased it five years earlier from the Sabran-Ponteves family. The Sabran-Ponteves family owned the Ansouis Diptych for generations. In fact, the work is traditionally interpreted as featuring Sabran-Ponteves’ ancestors in one of the panels. Geraud Marie de Sabran-Ponteves asserts that the sale of the artwork to the Wildenstein & Company gallery was unauthorized because the seller, his brother Charles Elzéar, offered it to the gallery without acquiring the consent of the other four siblings.

The Getty, however, is seeking an order to quiet title based on its purchase of the work in good faith and its display of the artwork prior to any legal claims arising. Furthermore, the Getty asserts that Geraud Marie de Sabran-Ponteves’ claims are barred by California’s statute of limitations. According to the Getty, Sabran-Ponteves was aware of the artwork’s location as early as 1987; he even contacted the Getty staff in 1999 about the artwork for the purpose of valuing his family’s estate. To sue in California within the statute of limitations, Sabran-Ponteves needed to bring suit within three to six years of locating the artwork, which he failed to do. In the alternative, the Getty asserts that it owns the artwork by adverse possession.

The tendency for a museum to seek an order to quiet title to an artwork, and the success of doing so in terms of outcome and public opinion, has waxed and waned over the last decade. It is informative to look at how museums have approached similar disputes regarding Holocaust-era assets because the legal techniques discussed above are frequently utilized in such lawsuits. For instance, in 2006 the Toledo Museum of Art filed suit to quiet title of Street Scene in Tahiti by Gaugin. Similarly, in 2006 the Detroit Institute of Art filed suit to quiet title of The Diggers by Van Gogh. In 2008 the Museum of Modern Art and the Solomon R. Guggenheim Foundation filed suit to affirm their respective ownership of Boy Leading a Horse by Picasso and Le Moulin de la Galette by Picasso on the basis that the original owners voluntarily sold the artworks. In 2009 the Museum of Fine Arts, Boston invoked the statute of limitations to affirm ownership of Two Nudes (Lovers) by Kokoschka, and the matter was resolved without reaching the merits of the case. Finally, in 2011, the Museum of Modern Art used a similar argument to affirm ownership of three works by Grosz. The tactical decision to use actions to quiet title and invoke statutes of limitations is readily seen through these examples, as in the dispute with Sabran-Ponteves.

Many museums, including those mentioned above, have received harsh criticism for opting for preemptive legal measures to settle title disputes, instead of conducting provenance research prior to the acquisition of the artwork or working with the individuals claiming rightful ownership of artwork. For example, Charles Goldstein and Yael Weitz, of Herrick, Feinstein LLP (NYC), write: “[M]useums, as institutions that function in a climate of ethical responsibilities, owe a duty to the public to maintain the integrity of their institutions,” which includes allowing for cases involving artworks with disputed histories to be litigated on the merits. Still, other scholars and practitioners argue that actions seeking to quiet title of artwork or actions based upon statutes of limitations are appropriate. For example, not all claims made by heirs of the former owners of artwork are meritorious, and such ought to be dismissed at an early stage of the dispute both to conserve museum resources and reduce the court docket. Furthermore, museums have the obligation to “take all reasonable steps to protect the assets they hold in trust,” including bringing suit to quiet title or invoking statutes of limitations. While scholars often times focus the discussion around Holocaust-era asset lawsuits, this debate readily reaches all situations in which a museum attempts to argue the technicalities rather than the merits of a case.

The controversy surrounding filing suit to quiet title and invoking statutes of limitations continues to influence the manner in which a museum chooses to claim ownership of contested works. In this case, the Getty already holds a controversial reputation due to its past legal problems and public repatriation battles. Now, the Getty took a public relations gamble in attempting to utilize the legal system to bar Sabran-Ponteves from bringing suit against it. Thus the anticipated resolution of this lawsuit by Judge Gary Feess may shed light on whether these legal tactics will continue to be favored or disfavored by museums.

Sources:

About the Author: Emma Kleiner is a student at Stanford Law School.

Gurlitt Saga Continues: U-Turn or Rotary?

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By Steffanie E. Keim*

Children should not be punished for the mistakes of their parents. Sometimes it gets difficult to determine where mistakes of the parents end and new mistakes, those by their children, begin. The international art community is continuing to look at the Gurlitt saga with great interest, not the least because of the mistakes that have been made in handling the art collection that Cornelius Gurlitt inherited from his father Hildebrand Gurlitt, the German art historian and art dealer who traded in “degenerate” and other art during the Nazi era, but also because of the glacial pace the entire process by the authorities has taken. More than 1,000 works of art were seized in the Munich apartment of art collector Cornelius Gurlitt in 2012 and the ongoing controversy surrounding the case has been widely publicized and reported on since November 2013. (See our original report; as well as an update WhoisGurlitt.info).

Now, there seems to be some new movement in the controversy regarding Gurlitt’s art collection. The German television news service Tageschau reported that Christoph Edel, the court appointed custodian of Gurlitt announced that his client plans to return all works of art which have been stolen or looted from Jewish owners. Concerned observers, including Nicholas O’Donnelle, a litigator and editor of the Art Law Report have already asked who will draw the line between what constitutes “stolen” and “looted” works and those that were just taken or sold under duress.

An agreement in the ongoing negotiations with the descendants of the Jewish art dealer Paul Rosenberg regarding the return of the portrait “Sitzende Frau” (Sitting Women) by Henri Matisse, which is valued in excess of $10 million, and is in custody of the Office of the Public Prosecutor in Augsburg, is expected shortly.  This work of art was looted by the Nazis and was part of the art collection of Herman Goering before it eventually came into possession of the Gurlitt family.  Rosenberg himself and his heirs have pursued the restitution of Rosenberg’s art collection since 1945 and been able to reclaim and re-purchase scattered pieces from his pre-war collection.

According to Edel, further restitution can be expected in the coming weeks as Gurlitt has apparently expressed that he has no interest in retaining art works which have been looted and has given the custodian full discretion regarding the return of works which are verifiably looted. Dr. Hannes Hartung, who had been in charge of negotiating possible restitutions was relieved from his mandate on 26 March 2014, with immediate effect (as reported by the Wall Street Journal on 28 March 2014 by Edel) and future claims are to be are directed to Gurlitt’s court appointed custodian Edel.

In connection herewith it has also been announced, that the collection found at Gurlitt’s Salzburg house, which was initially estimated to contain sixty works is now estimated to contain 238 nineteenth century and classical modernity works, including oil paintings, drawings and sculptures by Monet, Renoir, Manet, Gauguin, Toulouse- Lautrec, Liebermann and Cézanne as well as long missing painting by Jean Desire Gustave Courbet “Portrait of Monsieur Jean Journet” (1850). The art trove has been removed from Gurlitt’s Salzburg house at Carl-Storch-Strasse 9, which was listed as his main residence with the registry office and were he resided for many years, and where he and his art work went as unnoticed by his Salzburg neighbors and galleries as he has been in Munich, where he lives in an apartment, which he shared with his mother until her death.  The Salzburg home has been uninhabited and neglected for years, as were the paintings, drawings and sculptures hidden inside.  The art works, some of which are in poor condition have been removed from the premises for safekeeping and cleaning and are currently stored at an undisclosed location in Austria.

Gurlitt art works stored in secret location (still from the news reel).
Gurlitt art works stored in secret location (still from the news reel).

Gurlitt’s statements and actions continue to be ambiguous and even contradictory.  While he has given a group of journalist access to the art trove and allowed for filming and photographing of some works he continues to refuse to release a list of the collection found in his Salzburg residence.  Although he has vowed to return stolen or looted art works, Gurlitt currently insists on retaining experts himself to research the provenance of the works discovered in Salzburg and promises to publish the findings.  However, the identity of the experts, the timing of their retention, and when the results of such provenance research would be released to the public remains unclear and would be entirely in Gurlitt’s discretion.

Rüdiger Mahlo, the representative of The Jewish Claims Conference in Germany and other Jewish organizations have requested that independent researchers determine the provenance of the works and have insisted that the art trove be made public so Holocaust survivors or their heirs can file claims.

The reactions to and assessments of Gurlitt’s motives in agreeing to return stolen and looted artworks to the heirs of the rightful owners are polarized, as some believe that it might be an expression of goodwill while others believe he is yielding to public pressure or that he may not be as forthcoming as he claims to be since by controlling the process he may very well be controlling the outcome.
It remains to be seen if actual progress is being made in this case or whether it is merely the debate that has shifted from Gurlitt questioning whether he should return any works of art to his pledge to return works of art he considers stolen or looted.  As the story continues to unfold, the chain of events demonstrate that predicting Gurlitt’s next steps remains as elusive and unknown as the man himself and his collection have been for the past decades. For now the collection found and seized in Gurlitt’s Munich apartment in March 2012 demonstrate the contrariness of Gurlitt – while part of the collection has been digitized and posted on the German website lostart.de, it is being juxtaposed by charges filed by Gurlitt claiming the illegal seizure of this collection.

Senior Public Prosecutor in Augsburg, Reinhard Nemetz has made clear however, that while cooperation and reparation by the suspect are being taken into consideration, the investigation will continue and that no plea bargain will be accepted in exchange for restitution of art works.

Postscript: The public rediscovery of the Gurlitt collection raised many questions about how German civil and criminal laws deal with restitution matters. Further, the ongoing search for thousands of missing works has even prompted a new wave of provenance research investigations. Sadly, governments continue to make mistakes when faced with and concerning restitution issues. The Bavarian Department of Justice has admitted to making mistakes in response to the tedious piecemeal handling of the Gurlitt case. Michael Grauel, the Head of the Cultural Committee of the Bavarian Parliament declared that in hindsight things could have been handled differently and better.  While the remarks were introspective, the complexity of the case and the fact that legal authorities are not provenance experts was also noted.  According to Grauel a simultaneous search of the two Gurlitt’s residences, one in Munich, Germany, and the other in Salzburg, Austria, was planned at the time the initial search in Munich took place.  However, the prosecutor’s office in Salzburg denied the German petition for international administrative assistance in the search claiming at the time they received the request that the minimum amount of 100,000 Euros required to authorize such international administrative assistance had not been established.

In a related decision, the Bavarian Higher Administrative Court denied the request for temporary relief from a journalist who had sought information about the Gurlitt collection. According to the order of March 27th, 2014 [Bayerischer Verwaltungsgerichtshof, Beschluss vom 27.03.2014 - 7 CE 14.253], the prosecution in the Gurlitt case will not be “required to hand over a full list of the artworks as well as their dimensions.” since, the public interest does not sufficiently outweigh the confidentiality interest of Gurlitt in his collection and thus does not merit a grant of the temporary injunction. While to-date, less than half of the Gurlitt collection has been digitized and made available to the public via lostart.de website according to the court the journalist does not suffer unreasonable harm by awaiting a decision in the main proceedings. While this decision certainly is frustrating, since so long as the entire collection is not listed and reviewed by provenance researchers, it will be hard to guarantee that all artworks with questionable provenance will have an opportunity to return to their rightful owners, it is a very fact specific decision and faces the heightened pleading burdens of summary proceedings. This decision however does not preclude a different outcome in the main proceedings or even in a request for temporary relief by a different plaintiff with a legitimate interest (possibly the owner of an art work already listed on the lostart.de website who may have further claims regarding art works not yet listed.)

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*About the Author: Steffanie E. Keim is admitted to the bar in New York and Germany and is practicing law and pursuing her interest in art law in New York. She may be reached at 917-669-2514 or steffanie.e.keim@hotmail.com

Basquiat sightings, or Case Review: Heriveaux v. Christies, Inc.

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By Chris Michaels, Esq.*

Born in Brooklyn, NY in 1960, Jean-Michel Basquiat was a contemporary American artist, who started his career as a graffiti artist in the mid-1970s working in and around the Lower East Side of Manhattan. He gained popularity in the art world in the early 80s when his first solo art show opened in 1981. It was also in 1981 that Artforum magazine published a feature on Basquiat, effectively bringing his work into the mainstream. Basquiat’s art received widespread critical acclaim and in 1985 The New York Times Magazine featured the artist on their cover. Three years later, Basquiat died of a heroin overdose in 1988 at the age of 27. His popularity continued and grew after his death; today Basquiat’s work continues to bring in huge sums at auction. For example, in May of 2013 his painting, Dustheads, sold for $48.8 million at auction.

Basquiat’s “Dustheads,” which recently sold at auction on May 15, 2013 for $48.8 million:
Basquiat’s “Dustheads,” which recently sold at auction on May 15, 2013 for $48.8 million.

After the artist’s death, his estate established a committee to review and determine authenticity of works thought to be Basquiat. The authentication work was directed by the artist’s father, Gerard Basquiat, with assistance from a former curator of American Art at the Whitney Museum. As of September 2012, the authentication committee disbanded. (Read our report on the phenomenon of closing authentication committees here.)

Basquiat’s estate is currently administered by his sisters, Jeanine Basquiat Heriveaux and Lisane Basquiat, who in their roles as administrators are currently suing the Internal Revenue Service, alleging that their brother’s estate was overvalued. (Read: Untitled but Taxable.) The sisters took over the suit, which was originally filed by their father Gerard, after Gerard died. The origins of the IRS suit began when Sotheby’s originally valued Basquiat’s mother’s half of the estate at $36 million. Death taxes were paid by Gerard using the Sotheby’s valuation of the estate. The IRS, however, later valued the estate at $138 million, significantly increasing the amount of death taxes owed by the estate, and imposing nearly $2 million in penalties. The IRS suit is on the docket for a hearing by the United States Tax Court in April of 2014.

With April only weeks away, on 4 March 2014, Basquiat’s sisters filed a claim against the auction house Christie’s, Inc. (“Christie’s”), alleging it was attempting to sell inauthentic Basquiat items. The Complaint concerns publication Christie’s 148-page sales catalogue entitled “Jean-Michel Basquiat: Works From The Collection of Alexis Adler.” The catalogue was published in mid-February 2014 and was created to publicize the auction house’s March 2014 sale of approximately 50 items that Christie’s attributed to/listed as created by Basquiat.

UNTITLED (FLAG), one of the works attributed to Basquiat which was to be sold by Christie's before the case.
UNTITLED (FLAG), one of the works attributed to Basquiat which was to be sold by Christie’s before the case.

The source of the collection featured in the catalogue purportedly comes from Alexis Adler, a woman with whom Basquiat had a relationship and lived with for time between 1979 and 1980 in New York. The collection that Christie’s accepted on consignment for sale was allegedly left behind by Basquiat in the apartment he shared with Adler.

Prior to the catalogue being published, in 2007, Adler attempted to have seven items in her possession authenticated by the Estate’s Authentication Committee. At the time, six out of the seven items were, in fact, determined to be authentic Basquiat works. Nevertheless, according to the Complaint, at no time did Adler or Christie’s attempt to authenticate the rest of the items in her collection.

If, by way of example, Christie’s had in fact submitted the collection to the Estate for authentication and it declined to authenticate some of the items, a proposed New York State bill, if passed, would afford the Estate greater protection if Christie’s then decided to sue for improper/negligent denial of authenticity. Proposed New York State legislation, §13.04 of the New York Arts and Cultural Affairs Law, outlines specific protection for people or entities that qualify and are sued as “authenticators.” Under the bill, an “authenticator” is defined in two ways: 1) “a person or entity recognized in the visual arts community has having expertise on the artist or work of fine art with respect to whom such person or entity renders an opinion in good faith as to the authenticity, attribution or authorship of a work of fine art”; or 2) “a person or entity recognized in the visual arts community or scientific community as having expertise in uncovering facts that serve as a direct basis, in whole or in part, for an opinion as to the authenticity, attribution or authorship of a work of fine art.”

Notably, under the proposed bill, an authenticator shall not include “a person or entity that has a financial interest in the work of fine art for which such opinion is rendered. . . .” The proposed bill does, however, allow for an authenticator to be compensated for their efforts relating to their authenticating a work.

Untitled (We'll Get You Next Time), work attributed to Basquiat, listed in the Christie's catalog.
Untitled (We’ll Get You Next Time), work attributed to Basquiat, listed in the Christie’s catalogue.

Under the proposed bill, if a suit is brought against an authenticator that relates to the authenticator’s opinion concerning a work of art, the claimant must: 1) specify with particularity in the complaint facts sufficient to support each element of the claim or claims asserted; and 2) prove the elements of the claim or claims by clear and convincing evidence. As further protection for authenticators in civil claims, if the authenticator prevails in the action, he, she, or it may recover reasonable attorney’s fees, costs and expenses.

When the catalogue for the online auction was published, however, a notice on the last page was included which read, “All artwork by Jean-Michel Basquiat: © 2014 the Estate of Jean-Michel Basquiat/ADAGP, Paris/ARS, New York.”

In the Complaint, Basquiat’s sisters allege that Christie’s included the above-mentioned notice to deceive potential bidders into thinking that all of the items for sale were authenticated by the committee. In addition, plaintiffs/or their first names allege that Christie’s included the notice to increase the auction prices in order to maximize its revenue from the sale. At the time, the Complaint noted that allowing the sale to continue would serve to damage the Basquiat Estate by putting into the marketplace items of questionable authenticity, which will in turn decrease the value of works actually created by Basquiat.

The plaintiffs in this case are seeking, among other things, a minimum of $1 million in damages and injunctive relief restraining Christie’s from using the Estate’s name in any credits without the Estate’s prior written consent. Plaintiffs’ claims for relief include, but are not limited to, false endorsement, false advertising, deceptive trade practices, and unfair competition.

Plaintiffs are represented by Cinque & Cinque, P.C. law firm in New York. Christie’s has yet to enter its appearance. However, on March 9, 2014, Christie’s postponed the Basquiat auction pending the outcome of this case. No amended complaint was filed as of March 24, 2014. An Initial Pre-Trial Conference is scheduled for May 2, 2014.

Sources: 

About the Author: 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, chriswmichaels@gmail.com, or on Twitter @CMichaels88.

NY City Bar tackles “Hot Topics in Art Law 2014″

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By Megan E. Noh, Esq.*

On  12 March 2014, the New York City Bar Association hosted a well attended panel on “Hot Topics in Art Law 2014,” moderated by the chair of its Art Law Committee, Dean Nicyper (Flemming Zulack Williamson Zauderer LLP).  The panel was comprised of three speakers:  Judith Bresler (Withers Worldwide; author of the treatise Art Law: The Guide for Collectors, Investors, Dealers and Artists), Stacy Lefkowitz (Volunteer Lawyers for the Arts), and Howard Spiegler (Herrick, Feinstein).

Judith Bresler addressed the context for the proposed addition of § 13.04 to New York’s Art and Cultural Affairs Law, explaining that an increasingly litigious environment has a chilling effect on art experts and authenticators. Further,  when these individuals are afraid to render their opinions of authenticity, it has a chilling effect on transactions and the marketplace, inviting fakes and forgeries to enter into the stream of commerce. The proposed legislation, designed to provide greater protections for authenticators, was approved by the City Association of the Bar in January 2014, and introduced as a Bill on 11 March 2014. (Text of the proposed Bill is available online).  The Bill defines  an “authenticator” as a person who is recognized as having expertise regarding the artwork in question, who has rendered an opinion of authenticity  in good faith, and who does not not have a personal financial interest in the artwork itself or in the underlying transaction (other than being paid for his/her services in rendering the opinion).  If enacted, § 13.04 would add three forms of protection for authenticators: 1) a plaintiff suing an authenticator would be required to specify the facts supporting each part of each claim (exposing frivolous claims for their lack of merit), 2) the plaintiff would be required to prove his/her claim by clear and convincing evidence (a higher burden than preponderance), and 3) the authenticator could recover legal fees if successful in defending the claim. 

Next, Stacy Lefkowitz spoke on the topic of the law applicable to art consignment transactions. She explained a clear divide in the law: artists consigning their own work receive the protection of NYACAL 12.01 (amended in 2012, partially in response to the Salander O’Reilly fraud, to provide more “teeth” through stronger definitions and enforcement provisions with cross-references to the Estates, Powers & Trusts Law, as well as the requirement of much more specific waiver language), whereas artists consigning artworks by other artists and non-artists consigning artworks receive the lesser protection of the Uniform Commercial Code. Lefkowitz also discussed the subject and jurisprudential interpretation of due diligence required by merchants acting as purchasers of artwork, including some of the common “red flags” that may suggest that a transaction is not commercially reasonable.  Finally, Lefkowitz emphasized the ability of consignors to file UCC-1 financing statements as a proactive protection, as when properly filed, such a statement will ensure that a consignor’s interest supersedes that of other creditors.

Howard Spiegler then reviewed recent developments in repatriation and restitution, including Cambodia’s recovery of statues from Sotheby’s (through settlement of a forfeiture action) and the Metropolitan Museum of Art (by agreement), as well as the December purchase by the Annenberg Foundation of Hopi objects sold at the Paris auction house Drouout for return to the tribe.  With respect to restitution of Nazi-looted Art, Spiegler outlined the aspects of New York law that cause many to view it as a favorable forum for art recovery, such as its application of a “demand and refusal” rule to trigger the statute of limitations, its minimal burden of proof, and its fundamental rule that even good faith purchasers may not obtain good title to stolen property.   Mr. Spiegler also reviewed recent restitution cases, including Baklar v. Vavra (in which a Schiele drawing was at issue), In re Flamenbaum (concerning a thirteenth century gold tablet), Cassirer v. Thyssen-Bornemisza Collection Foundation (a dispute concerning a Pissarro painting), and Chabad v. Russian Federation (a suit to recover religious texts). Spiegler closed by noting that the first “Gurlitt Horde” case has recently been filed in the U.S. District Court for the District of Columbia; this is the first of what the art law community anticipates will be many similar claims arising from the recent discovery of this trove of artworks.

The panelists’ presentations were followed by a spirited “Q&A” session, during which Dean Nicyper and audience members posed some insightful questions.  The program was an excellent review of recent developments in the art law arena, and those who attended will surely be watching the news for further updates to the legislation and cases that were covered.

About the Author: Megan E. Noh, Esq. is the Director of Bonhams Trusts & Estates department in New York. She may be reached at 212.461.6521 or megan.noh@bonhams.com.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation. 

Case Review: Bilinski v. the Keith Haring Foundation

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By Chris Michaels, Esq.*

Keith Haring chalk subway drawing.
Keith Haring chalk subway drawing.

Filed in the Southern District of New York on 21 February 2014, the case of Bilinski v. The Keith Haring Foundation, Inc. finds its origins, in large part, from the decision of the Haring Foundation to dissolve its Authentication Committee in September 2012. (See our article:  The Keith Haring Foundation Announces Its Decision To Disband Authentication Committee). In order to properly understand the implications of the dissolution and the lawsuit, which was brought by owners of works allegedly created by Haring against The Haring Foundation, Keith Haring’s Estate, and the Foundation’s directors, a brief background of the artist, as well as the Foundation he established, is helpful.

Keith Haring, an influential New York-based artist and social activist, gained renown in the 1980s for visual artwork that explored controversial and enduring subjects including AIDS, sexuality, birth, death, and war. His work in the New York City subways (left), captured by photographer Tsing Kwong Chi, catapulted Haring into the pop art stratosphere with the likes of Jean Michel-Basquiat and Andy Warhol. Haring went on to produce more than fifty public artworks around the world and hundreds of smaller scale works.  Some of Haring’s works were discovered as recently as 2007.

In 1989, before his AIDS-precipitated death on 16 February 1990, Haring established The Haring Foundation.  Goals of the Foundation include, but are not limited to, distributing funds to AIDS organizations, distributing property and grants to museums and institutions, and perpetuating the understanding of Haring’s artwork. Notably, pursuant to the Bilinski Complaint, the Foundation never took upon itself to compile and publish a catalogue raisonné of Haring’s artwork. Authentication of the artist’s works was left to an Authentication Committee within the Foundation.

According to the Complaint, before its dissolution, the Authentication Committee accepted applications for review of works thought-to-be-by Haring and decided, often without explanation, whether the submitted work was indeed an authentic Haring. The Plaintiff’s in Bilinski are owners of artwork allegedly purchased from friends of Haring and potentially worth over $40,000,000 if authentic. They are pursuing various causes of action related to the alleged improper denial of the Authentication Committee from declaring the works at issue authentic Haring pieces. Part of the lawsuit also relates to a Press Release authored by the Foundation publicly declaring the pieces as fakes. Interestingly, a few of the causes of action arise under the Lanham Act, which allows for damages to be trebled. As the Plaintiffs’ are claiming damages of not less than $40,000,000, a ruling for the Plaintiffs under the Lanham Act causes of action could prove costly for the Defendants.

The crux of Plaintiffs’ argument in the case is that the decision to dissolve the Authentication Committee allegedly “makes it easier for Defendants to evade liability for the committee’s improper denials of authentic Haring artworks” and improperly inflates the market value of Haring works that have already been authenticated by the committee. According to the Complaint, “[b]y refusing to authenticate the works [at issue] and publicly branding them as fakes, the Defendants have limited the number of Haring works in the public domain, thereby increasing the value of the Haring works that the Foundation and its members own or sell.”

Plaintiffs are represented by David A. P. Brower and Brian C. Kerr of the Brower Piven firm.

Source: Complaint – Bilinski v. The Keith Haring Found., Inc., 14-CV-1085 (S.D.N.Y. filed Feb. 21, 2014).

About the Author: 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, chriswmichaels@gmail.com, or on Twitter @CMichaels88.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

Libel by Fiction: Greene v. Paramount Pictures Corporation

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By Richard A. Altman, Esq., Law Office of Richard A. Altman*

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Whether the Center for Art Law hosts its next dinner and a movie evening dedicated to the new Martin Scorsese film “The Wolf of Wall Street” remains to be seen. However, a suit arising from this film, recently filed in the Eastern District of New York, illuminates a curious area of defamation law known as libel by fiction.  It arises when someone claims that a fictional work which portrays a character in a negative light, usually as a criminal or an unchaste woman, is based upon personality or physical characteristics or qualities which the plaintiff possesses, such that people who know the plaintiff will think that he or she is the basis for the person portrayed.  It is rarely successful, but if a plaintiff can show that people reasonably assume that the fictional character is based upon him or her, and that the portrayal is sufficiently negative, it is possible to maintain a defamation claim.

What makes the claim so odd is that it is counter-intuitive and even illogical, because “a plaintiff claims that something that is fictional is not factually accurate.”1  In New York, every libel plaintiff must show that the complained-of portrayal or statement is “of and concerning” him.  This is not an issue in the usual situation, where a plaintiff is actually named in a publication and there is no doubt regarding who he or she is.  But if the plaintiff is only verbally (or visually) described in the fictional work as someone else, it is then the part of the plaintiff’s burden to show that persons who know the plaintiff will necessarily recognize him in the fictional portrayal.  The burden is a heavy one, but, as will be shown, the plaintiff in the new case may have met that burden, and could survive a motion to dismiss.  And perversely, his less-than-spotless reputation may make him more, rather than less,  likely to succeed.

In Greene v. Paramount Pictures Corporation et al., 14-cv-1044 (E.D.N.Y, Feb. 18, 2014), the plaintiff, Andrew Greene, alleges that he is a lawyer, an inactive member of the California bar, and was formerly the head of the Corporate Finance Department of Stratton Oakmont, Inc., from 1993 until his resignation in 1996.  Stratton Oakmont was a large over-the-counter securities brokerage firm in the 1990’s, and its head, Jordan Belfort, was indicted in 1998 for securities fraud and money laundering, which led to the firm’s demise.  Mr. Greene further alleges that the recently released Martin Scorsese film, “Wolf of Wall Street,” contains a fictional character named Nicky “Rugrat” Koskoff, who is “portrayed as a criminal, drug user, degenerate, depraved, and/or devoid of any morality or ethics,”2 and that the character of Koskoff is based upon him.  In the film, Koskoff is played by Leonardo DiCaprio.

Mr. Greene further alleges that in 2007, Belfort wrote a memoir about the firm with the same name as the film, that the book refers to him (Greene) by his correct name, and that the film is based upon the book.  He references similarities between himself and the portrayal of Koskoff, including that they both were close friends with Belfort, that they both went to law school, that they both wore toupées, that the film mocks Koskoff’s toupée, calling it a “piece of shit hairpiece,”3 and that they both had significant leadership roles at Stratton Oakmont.

However, what the complaint omits is that Mr. Greene was one of four former officers of that firm who were collectively fined $10 million in damages by a National Association of Securities Dealers arbitration panel, allegedly for defrauding an investor.  Apparently Mr. Greene’s share was $1.5 million.4  It is not known whether the arbitration was ultimately enforced, or whether the fines were paid, but the findings of the NASD panel, and the assessment of a substantial punitive damage fine, would seem to affect Mr. Greene’s reputation negatively.  Since, by definition, a libel plaintiff claims damage to a good reputation, the likelihood of ultimate recovery here would thus appear slim.  But libel-by-fiction cases have their own rules.

Mr. Greene sets forth five causes of action based upon these facts.  It seems however, that only one has a chance of success.

The first and second causes of action are based upon New York Civil Rights Law §§ 50 and 51, which provide a cause of action for an injunction and damages against anyone who “uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person.”  But this statute is not a general protection of the right of privacy; there is no such right in New York other than that provided by libel laws.5   A claim under these statutes requires the unconsented-to use of the actual name or likeness of the plaintiff, usually in a photograph.  Portrayal of the plaintiff in fiction under a different name is not sufficient.6  Here, plaintiff does not allege that his actual name or likeness appears anywhere in the film.  Thus, since neither plaintiff’s actual name nor likeness were used, it would seem that he has no claim under Civil Rights Law §§ 50 and 51 for either an injunction or damages.

The third cause of action alleges that the defendants “have consciously and deliberately disregarded and violated Plaintiff’s common law propriety [sic] right to exclusive control of the commercial use of his image, likeness, and characterization,”7 and he seeks an injunction and damages.  But as just stated, there is no such common law right in New York.  The right to control one’s image, likeness and characterization is purely statutory.  Hence the third cause of action is likely to be dismissed.

The fourth and fifth causes of action are in the nature of claims for libel per se.  They allege that the statements and portrayal in the film show him “as a criminal and drug user with misogynistic tendencies.”8  The fourth alleges that the statements and portrayals were made “with malice or [that defendants] acted with reckless disregard as to the truth or falsity of the statements.”9  The fifth alleges that the statements were made “negligently as to the truth or falsity of the statements.”10  Nowhere in the complaint are the actual statements in the film set out verbatim.  There is only one exception, where a character in the film named Donnie Azoff is alleged to say, “Fucking Rugrat that wig-wearing faggot I can’t believe that fucking guy. I want to kill him.”  Belfort’s character then says, “Swear to God, I want to choke him to death. Irresponsible little prick.”11

The failure to set out verbatim in a defamation complaint the exact words complained of is fatal to a claim in New York State courts.12  However, it is not necessarily fatal in federal courts, because pleadings there are governed by F.R.Civ.P. 8.  “While the federal rules do not require the particularized pleading requirements set forth in New York’s C.P.L.R. section 3016, Rule 8 still requires that each pleading be specific enough to afford defendant sufficient notice of the communications complained of to enable him to defend himself.”13  Thus plaintiff still must point to specific language or imagery in the film which states facts to support his claim that he is portrayed as a criminal.  He has not done so.  Obviously the film is far more than just a portrayal of Mr. Greene, and it would seem necessary to identify those portions of the film specifically alleged to be defamatory.

In any event, the only words actually quoted in the complaint are not defamatory.  They are obviously not statements of fact about “Rugrat,” capable of being true or false, but are merely  opinions in the form of invective and abusive language, which is not actionable.  Only statements of fact can be libelous, and calling someone a “wig-wearing faggot” and an “irresponsible little prick,” while certainly nasty and insulting, would not be considered libelous.14

Thus, even leaving aside these significant and possibly fatal omissions, we are left only with a claim for libel by fiction.  This is where it gets interesting.  As noted above, the claim is counter-intuitive, in that it is based on the assertion that a work of fiction is false.  But it does exist:  “In the fiction context, the plaintiff must also show that the viewer was totally convinced that the episode in all aspects as far as the plaintiff is concerned is not fiction at all.”15

In Batra v Wolf,16 the Court refused to dismiss a complaint against the television show “Law and Order,” brought by a lawyer who claimed that a character in an episode of the show was based on him, and portrayed him as corrupt.  The episode was based on a true and widely reported event involving judicial corruption in Brooklyn, and a judge who served time in prison.  The plaintiff, a lawyer named Ravi Batra, had been involved in judicial politics, but was never charged with any crime in connection with the event.  He had however been linked to the corrupt judge in the press.  The lawyer in the episode had the same first name, Ravi, and both the plaintiff and the fictional lawyer were of Indian descent.  In the episode, the surname Batra was changed to Patel.  The court said that the similarities were close enough to entitle the plaintiff to proceed, and did not dismiss the action:

In the context in which Floater was presented, extensive media coverage linking Batra to the Garson/Siminovsky scandal, there is a reasonable likelihood that the ordinary viewer, unacquainted with Batra personally, could understand Patel’s corruption to be the truth about Batra. While the accusations against Batra were for graft rather than for bribery, it cannot be said that this distinction is sufficiently “far-fetched” that Patel’s corruption could never be understood as describing actual facts.17

In Geisler v. Petrocelli,18 the plaintiff had appeared in a work of fiction under her real name, which allegedly portrayed her as participating in a fraud involving a tennis match, and in which she was “lured into untoward sexual conduct which is graphically portrayed.”19  The Court then said:

Rather, it is required that the reasonable reader must rationally suspect that the protagonist is in fact the plaintiff, notwithstanding the author’s and publisher’s assurances that the work is fictional. This points up the disturbing irony inherent in the scheme: the more virtuous the victim of the libel, the less likely it will be that she will be able to establish this essential confusion in the mind of the third party. Thus, the more deserving the plaintiff of recompense for the tarnishing of a spotless reputation, the less likely will be any actual recovery. Such a seeming contradiction is best resolved by the trier of fact since adjudication of the issue as a matter of law will seldom satisfy the expectation that legal holdings be consistent and logical.  Id. at 639.

What makes Mr. Greene’s case unusual is that it is the opposite of Giesler.  If a plaintiff with a spotless reputation is less likely to recover, is a plaintiff with a tarnished one more likely to recover?  It seems no less illogical than a libel-by-fiction claim itself.20

Based on the case law and commentary,  it appears that Mr. Greene can legitimately assert that he and “Rugrat” Koskoff are one and the same, at least as a threshold issue. Maybe the toupée is the clincher. Moreover, considering the dictum in Geisler, the fact that Mr. Greene’s reputation is not spotless ironically might make his likelihood of ultimate recovery greater than if the NASD had never penalized him and if the firm had never crashed and burned.  But then, if that had not happened, there would have been no movie.

Sources:

Batra v. Wolf, 2008 N.Y. Misc. LEXIS 1933 at *5 (Supreme Ct. N.Y.Co. Mar. 14,  2008).
2  Complaint, ¶ 30 at 6.
3  Id., ¶ 28 at 6.
4 See http://www.securitiesarbitration.com/news/1997/04/18/former-stratton-execs-fined-10m/ (accessed March 5, 2014).
Arrington v. New York Times Co., 55 N.Y.2d 433 (1982).
Allen v. Gordon, 86 App.Div.2d 514 (1st Dept.1982), aff’d 56 N.Y.2d 780 (1982).
7   Complaint, ¶ 55 at 10.
8  Id., ¶ 62 at 11.
9  Id., ¶ 60 at 11.
10  Id., ¶ 65 at 12.
11  Id., ¶ 29 at 6.
12  CPLR 3016(a); Buffolino v. Long Island Sav. Bank, FSB, 126 A.D.2d 508 (2d Dept.1987).
13   Gristede’s Foods, Inc. v. Poospatuck (Unkechauge) Nation, 2009 U.S. Dist. LEXIS 111675, 2009 WL 4547792, at *8-9 (E.D.N.Y. Dec. 1, 2009)(citations omitted).
14 Steinhilber v. Alphonse, 68 N.Y.2d 283 (1986).
15 Batra, supra n. 1 at *5 (citing Welch v. Penguin Books USA, Inc., 1991 N.Y. Misc. LEXIS 225 (Sup.Ct.Kings Co.1991)(quotation marks omitted).
16  2008 N.Y. Misc. LEXIS 1933 (Supreme Ct. N.Y.Co. Mar. 14, 2008).
17  Batra, supra, n. 1 at *10.
18   616 F.2d 636 (2d Cir.1980).
19   616 F.33 at 638 (footnote omitted).
20  The subject of libel by fiction is explored in two recent law review articles: “When ‘Ripped from the Headlines’ Means ‘See You in Court’: Libel by Fiction and the Tort-Law Twist on a Controversial Defamation Concept,” 13 Texas Rev. Ent. & Sports L. 117 (2012) and “When Is Fiction Just Fiction? Applying Heightened Threshold Tests to Defamation in Fiction,” 76 Fordham L.Rev. 1853 (2007).

About the Author: Richard A. Altman, Esq. specializes in art law, intellectual property, and defamation.   He may be reached at 212.633.0123 or altmanlaw@earthlink.net.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

Photographs and Richard Prince: The Gifts that Keep on Giving

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By Irina Tarsis, Esq.

In truth… in art, there are few, if any, things , which in an abstract sense, are strictly new and original through out.” Emerson v. Davies (CCD Mass 1845). J. Story

Remember Cariou v. Prince?

Cariou v. Prince, 11-1197-cv (2d Cir. Apr. 25, 2013) rev’ing 784 F.Supp.2d 337 (S.D.N.Y. Mar. 18, 2011) offers many teachable moments. Starting with the harsh decision by Judge Deborah Batts of Southern District of New York, which ordered the infringing works to be handed over to the Plaintiff for destruction, and ended with the tweet Richard Prince posted when he received twenty-five of his thirty paintings following the Second Circuit Court of Appeals partial reversal of J. Batt’s decision, finding that only five of the works Prince made were not ‘transformative’ as a matter of law. When the twenty-five works were ultimately returned to Prince, he observed that after half a decade of not seeing them he was of the opinion that he should have been sued for “making shitty paintings”.

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Copyright in a Nutshell

U.S. 1976 Copyright Law identifies art and photographs as copyright protected works and lists preparation of derivative works as an exclusive right of the copyright owner. 17 U.S. 101, 106. The fair use defense limits the exclusive rights of copyright holders in certain circumstances when the work is used for valid purposes such as but not limited to criticism, comment, teaching or research. There is a famous four-factor test to decide whether “the use made of a work in any particular case is a fair use,” 17 U.S. 107. Unfortunately, there is no way to predict how judges will apply and weigh the four factors due to the high level of discretion afforded to the judges. A couple examples of this occurred recently when the Cariou appeal was pending and California courts ruled in two fair use cases categorically differently – both citing Cariou but one using J. Batts’ decision and the other using the 2nd Circuit decision (see Morris v. Guetta 2013 WL 440127 (Feb. 4, 2013) and Seltzer v. Green Day, 725 F.3d 1170 (C.A. 9th Cir. 2013).

What’s next?

On 16 December 2013, nine organizations and individuals arguing for the rights of photographers to benefit from the derivative use of their copyright protected works submitted an amicus brief in support of Patrick Cariou in his case against Richard Prince for the appropriation of the images from “Yes, Rasta” book for creation of the “Canal Zone” art works. (For background on Cariou v. Prince, read Appropriate Standard in Appropriation Art). Now, the New York Times’ Patricia Cohen reports that photographers are considering turning to Congress for assistance in protecting their works. She quotes Victor Perlman, general counsel for the American Society of Media Photographers, as saying “The courts have taken an approach to fair use that we do not believe was originally intended… A lot of what’s going to have to happen in fair use is going to have to happen on Capitol Hill.”

While it is hard to imagine that this Congress is capable of assisting anybody, one possible avenue to run interference is to modify the Copyright Act to include compulsory licensing for artists who incorporate copyright protected works of others into their work. The idea of having such a licensing scheme is not new; it was raised at least as early as 2002 by co-author of the Art Law treatise, Judith Bresler, Esq., in an article entitled “Begged, Borrowed or Stolen: Whose Art is It, Anyway-An Alternative Solution of Fine Art Licensing.” J. Copyright Soc’y USA 50 (2002): 15.

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Tweet attributed to Richard Prince.

Richard Prince, whose appropriation of Cariou’s works rekindled the fair use debate, responded to the announcement about photographers appealing to Congress by posting two black and white images on his Twitter account. Entitled “Untitled (protest) Thanks to the National Press Association & The Professional Photographers of America, the pictures include the 2012 Shia Muslims protest condemning killings in north-western Pakistan and a pornographic image of a woman scantily-dressed grasping at her breast and throwing her head back in protest or ecstasy.

AFP image of protests over killings in Pakistan (2012).
AFP image of protests over killings in Pakistan (2012).

The origin of the second image is not easily ascertained; while the credit line for the Pakistan protests indicates that it belongs to Agence France-Press.

Sources: The New York TimesCariou v. Prince, 11-1197-cv (2d Cir. Apr. 25, 2013); Amicus Brief, Cariou v. Prince, 08 CIV 11327 (DAB) (Dec. 16, 2013).

Whois Gurlitt.info?

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by Irina Tarsis, Esq.

2014-02-23
Collage: Gurlitt’s Munich apartment; portrait; Salzburg house; door plaque.

You know you are in need of a reputation management when the entire world knows your name and your address and nobody is thinking of sending you greeting cards. Also, reputation management might be a good idea when 1) your father was an art dealer connected to the Nazis, 2) you are caught hoarding  hundreds of valuable artworks of questionable provenance, and 3) you may or may not have been hiding Nazi-era looted art as well as avoiding paying income taxes.

Regardless of whether the Monuments Men-mania is dying down or not, Cornelius Gurlitt saga continues to unfold. With the German government contemplating changing its statute of limitations laws to allow for the recovery of looted art, and the international community is antsy to jump into the game of reviewing Gurlitt’s trove. Countless headlines, tweets and posts have embarrassed the Bavarian authorities and prompted the creation of a special international task force to review provenance of paintings and works on paper taken from Gurlitt’s apartment in Munich in 2012 and from his house in Salzburg in February 2014.

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Gurlitt.info website.

Initially taciturn and reticent to speak in his own defense, Gurlitt had made asked for his art back, alleging that he did nothing wrong and wondered why he had been separated from his property. Since then the tone has evolved, and now there is a bilingual website dedicated to explaining Gurlitt’s position and soliciting claims for works that he originally had no plans to relinquish. The website went live on 18 February 2014 — see: http://www.gurlitt.info. On the homepage, there is an image of a gentile and approachable man, not in his early 80s – not Gurlitt – used to epitomize him and invites website visitors to engage in “[d]iscussions about the Gurlitt case.”

The website names four individuals working for Gurlitt: Dr. Hannes Hartung (Private Law)Prof. Dr. Tido Park (Criminal)Derek Setting (Criminal)Christoph Edel (maintainer)  as well as Stephen Holziger of Holziger Associates (the spokesperson for Gulritt, who registered the Gurlitt.info domain name). According to Holzinger, the Gurlitt.info website, “reiterates our willingness to engage in a dialog with both the general public and any claimants.”  As Holzinger’s own website states, the services his ‘highly specialized communications consulting form’ provides include development and implementation of “purposeful communication and reputation management strategies for entrepreneurs, wealthy families, executive and advisory board members, corporations, SMEs, investors, institutions and associations in crisis situations, in case of disputes and during civil and criminal court proceedings,” otherwise, a public relations company for the wealthy with big problems. Perhaps the recent revelation of the Salzburg stash was a public relations move prompted by Holzinger in an effort to build up goodwill and to preemptively ward off another wave of press coverage. Indeed, it was Holzinger, who revealed on 11 February 2014, “that Mr Gurlitt has more works at his house in Salzburg, Austria, on top of the 1,400 pieces found at his Munich home in 2012.” Just imagine the firestorm, had the news of the Salzburg stash been scooped by the media instead…

Gurlitt.info states that only four families have come forward so far to claim works in the Gurlitt trove and that at most, only 3% of the entire collection may constitute Nazi-era looted art, the rest being rightfully owned by Gurlitt. As the German authorities continue to make heads and tails of the story, provenance researchers must be able access to the collection in order to assist in the investigation. It is more probable than not that more families will step forward and offer proof of ownership in other works taken from Gurlitt.

In the meantime, at least according to the Gurlitt.info:

“the Gurlitt case is by no means unique. Nazi plunder in German museums has long been known to be a problem. And there is definitely still a lot of looted art in private and public collections. Quantitatively speaking private and public collections may well contain considerably more instances of suspected looted art than in the case of Cornelius Gurlitt.”

Sources: Gurlitt.info; Holzinger Associates; ArtInfo; The Independent;

About the Author: 

Irina Tarsis, Esq. is the Founder of Center for Art Law; in addition to provenance research and teaching, she focuses her practice on business and art law.  She may be reached at itsartlaw@gmail.com

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

VARA, Back to the Rescue of Public Art in NYC

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By Irina Tarsis, Esq.

Case Preview: Johnson’s Paintings Go Missing from Empire State Building

Between 1999 and 2000, a New York artist Kysa Johnson was commissioned to create and loan a series of art works for display at the Empire State Building. The six works that used to adorn the concourse level of the historic skyscraper apparently “represented the atomic or molecular structure of the materials — brick, steel, cement, aluminum — used in the skyscraper’s construction.” Now, 14 years later, Johnson’s paintings have disappeared from display and are presumed destroyed.

Blow up 250, by Kysa Johnson
Blow up 250, by Kysa Johnson (Halsey McKay Gallery)

Having learned that the paintings went missing, Johnson, currently exhibited at the Halsey McKay Gallery through March 1, 2014, brought a copyright infringement suit against the current owners of Empire State Building alleging violation of her moral rights, under the 1990 Visual Artists Rights Act (VARA), 17 U.S.C. § 106A. This section of the Copyright Law deals with artists’ rights of attribution and integrity of their works. It was designed “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to [artist's] honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and 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” (emphasis added).

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Johnson Complaint Exhibit, “blow up 12 – aluminum”

Johnson filed a complaint against the current owner of Empire State Building alleging “intentional or grossly negligent destruction of the paintings” which damages “her honor and reputation as an artist.” She seeks damages for “the destruction of the significant and important works of art that were her property.” Johnson asserts that her paintings, “blow up 8 – subatomic decay patterns,” “blow up 9 - the formation of steel” “blow up 10 – cement” and others are of recognized stature because they were shown at an “opening party” attended by a hundred of visitors in September 2000 and they have been subsequently enjoyed by the countless Empire State Building visitors.

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Johnson Complaint Exhibit – “blow up 13 – bricks”

Johnson is represented by Andrew N. Bourne. She is seeking compensatory and consequential damages.

Source: New York Times; Complaint, Johnson v. Empire State Realty Trust, Inc, 1:14-cv-00487-PAC (Jan. 27, 2014)

Roseman’s “Curtain Wall” might  come down at J.F.K. Airport

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In 2001, John F. Kennedy Airport (the Airport) unveiled its newest art installation, the “Curtain Wall” by Harry Roseman. Made up of 50+ sculptures depicting clouds or curtains, the installation was located in Terminal 4, where it has been greeting travelers for 13 years. Now the airport is considering renovations of the corridor that displays “Curtain Wall” and once the installation is taken down, there may be no room for it in the renovated space.

Apparently Roseman has been offered to take his work back but he would rather have “Curtain Wall” remain on display at the Airport. This situation, still in its development stages, brings to mind another artist’s successful efforts to protect her sculpture from removal from Terminal 1 at the John F. Kennedy. Having brought a case against the Terminal One Group Association under VARA, Alice Aycock was able to keep her “Star Sifter” in the reconfigured space and on display.

Source: New York Times; Aycock et al v. Terminal One Group Association, L.P. et al, 12-cv-03173-RWS, (SDNY, March 11, 2013).

About the Author: 

Irina Tarsis, Esq. is the Founder of Center for Art Law; in addition to provenance research and teaching, she focuses her practice on business and art law.  She may be reached at itsartlaw@gmail.com

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

Morning after Art Law Mixer at Mixed Greens

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Screen shot 2014-02-04 at 12.11.07 PMWe sure know how to pick ‘em! Thanks to Janus and Maximus for showing their support for art law.

More importantly thanks to all who braved the weather and came to the first 2014 Art Law Mixer at Mixed Greens Gallery last night. We had a small but healthy mix of art advisers, IP attorneys, artists and students. Enthusiasm and the quality of conversations exceeded our expectations and we look forward to hosting next mixer soon! For all we know, it might snow in March too!

Please help us organize our next Mixer by participating in the following poll:

ArtWatch Report from 20 January 2014

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Irina Tarsis, Esq.:

Well researched and very thought provoking…

Originally posted on Artwatch:

THE FATE OF SCULPTURES AT:
1) The Metropolitan Museum of Art;
2) The British Museum;
3) The National Museum of Kolkata;
4) The Academy of Art in Perugia;
And, the Burrell Collection next?

STOP PRESS: On Tuesday January 21st the Burrell Collection (Lending and Borrowing) (Scotland) was passed in the Scottish Parliament without a vote. Barely half a dozen MSPs attended. They unanimously supported the Bill (although one called for some published account of the proposed £45m development plan). There is no minimum number of votes necessary for a bill to gain approval.

Neil MacGregor and Thomas Campbell, the directors respectively of the British Museum and the Metropolitan Museum of Art, will now be able to make arrangements for the first two stops in the planned international tour of plum Burrell works to help raise £45m to repair and refurbish the Burrell Collection building, the roof of which has been…

View original 2,428 more words

New Copyright Infringement Case: Greenfield v. Pankey

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Screen shot 2014-01-14 at 12.44.01 AMBy Irina Tarsis, Esq.*

Chasse away Cariou v. Prince! Filed on December 20, 2013 with amended complaint submitted on the New Year’s Eve, Greenfield v. Pankey has the making of another exciting photographer v. artist case. Plaintiff, Lois Greenfield is a dance photographer. She is accusing Jill Pankey of basing her paintings on Greenfield’s photos, 33 photos to be exact.

According to the complaint, Greenfield is “one of the country’s foremost dance

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photographers” who does not photograph dance performances but instead “directs and composes unique dance imagery in her studio.” Defendant, at one time art faculty at Texas State University used Greenfield’s photographs in more than 20 of her paintings. After a third party noticed that Pankey’s work was based on Greenfield’s photos, Pankey tried to secure Greenfields permission to copy her work. Pankey admitted to using photos of dancers as inspiration for her paintings. In an email, she even admitted to harming Greenfield but according to the complaint, defendant continued to sell her paintings online.

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While Pankey is not a New York resident — she resides in Texas — New York Federal Court seems to have jurisdiction to decide the dispute because Defendant promoted her work to New York residents and exhibited her paintings in Manhattan gallery shows.

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Given the willful infringement alleged by Plainitff, Greenfield is seeing maximum statutory damages, actual damages and litigation costs as well as injunction against using Greenfields’s copyrighted photographs not to mention the delivery of Pankey’s paintings for for distraction or other disposition.

Complaint includes many side by side comparison’s of Greenfield’s photos and Pankey’s paintings as well as charts listing infringed and infringing works. Greenfield’s counsel is Andrew Berger with Tannenbaum Helpern Syracuse & Hirschtritt LLP.

Source: Complaint, Greenfield v. Pankey, 1:13-cv-09025-PGG  (S.D.N.Y. Dec. 27, 2013)

*Disclaimer

This article is intended as general information, not legal advice, and is no substitute for seeking representation.

NOW you see it… Legalese of Street Art

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IMG_6434
[Untitled] (Vilnius, Lithuania)
By Irina Tarsis, Esq.

Did you know that some street artists pay building owners for the right to paint graffiti? If so, it is almost as jarring as finding a tag on your business shutters early in the morning. What a synergistic example of the seemingly disparate interests: artistic, economic and legal — satisfied. According to Wilfredo Feliciano, a.k.a. Bio, quoted in a recent TNYT article, his group of street artists have been paying up to $1,000 for the right to paint ads and personal pieces on the streets of New York for years. Of course, paying to paint graffiti is probably an exception to the rule of the self-expression form that began as a subversion and turned into a social-cultural manifestation of the working class. Graffiti is still considered a crime and New York City still has a task force (Citywide Vandals Task Force) that is dedicated to battling vandalism of property by graffiti offenders (a rose by any other name).

Truth be told, graffiti and tags are ubiquitous in our post-industrial world. From Los Angeles to Vilnius, aerosol art, better known as graffiti, saturates walls of urban landscape. It is a phenomenon that started probably around the time when aerosol/spray paints became available to the general public.

"Better Out than In," by Bansky (New York, NY)
“Better Out than In,” by Banksy (New York, NY)

Artists, as we have been told, just cannot help themselves; they need to create, they need to paint, they need to self-express. In the Fall 2013, New York City had been particularly focused on graffiti art because a world-famous prankster, Banksy, choosing the Big Apple for his artist-in-residency sojourn and because of the 5Pointz case and controversy (Read: Center for Art Law early coverage and discussion of the ultimate decision by Nicholas O’Donnell in the Art Law Report).

To say that graffiti makers are becoming interwoven into the mainstream is to say little. However, as the recent decision in 5Pointz dispute indicates, the law still favors the rights of the real property owners against those who paint on their property walls. Tagging by definition is an unsanctioned act of defacing a physical surface not advertised as a surface for self-expression. Between the right to free speech and the right to make you speech tangible and permanently a part of another’s private property begs questions related to the First Amendment of the US Constitution (freedom of expression and such). Banksy and many other street artists are very talented and poignant; however, they cannot expect unfettered and unlimited access to use walls of others indefinitely.

Most recently, The New York Times ran an article warning against the  “gradual loss” of wall space for street artists. There David Gonzalez interviewed a number of street artists, including J.J. Ramirez, who was “Mico” tagging subway cars and walls as early as the 1960s. According to Ramirez, the disappearing urban canvas indicates that the privileged care little for the “art form invented by the children of the working class.” This and other quotes from established taggers and graffiti writers (note the difference) foretell a looming fight between street artists for space to express themselves.

In hindsight, an amenable and logical solution to save space for street artists, such as the ones formerly graffitiing 5Pointz walls is to buy a space and create a new graffiti mecca (and may be charge rent) allowing graffiti writers to continue their creative quests. As Feliciano admits, he and his friends are regularly painting over a plywood replica of a 1980 subway car, equating this exercise to “painting at the office.” Well, when the artists decide to paint en plein air they brought canvas outside and then pack up and took everything back home, leaving nothing of value at the mercy of the elements (weather, market, and vandalism).

Sources and suggested readings: Rafael Schacter “The World Atlas of Street Art and Graffiti” (New Haven: Yale U. Press 2013); David Gonzalez, “As Legal Graffiti Walls Disappear, Street Artists Ponder Future ,”  The New York Times (Nov. 24, 2013).

Recent Decisions and Developments in FRENCH ART LAW (Part 2)

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By Olivier de Baecque, Attorney at law*

French courts have become more restrictive on granting copyright protection. This is the case for photographs of works of arts and zinc plates used to produce lithographs. As a consequence, these works can be freely used or sold on the art market.

1. Lack of protection for photographs that are faithful reproductions of sculptures (Court of Appeal of Paris, 16 January 2013)

Facts: A sculptor commissioned photographs of his works for a catalogue/monograph about his works. Subsequently, without obtaining a specific permission/or copyright grant from the photographer, the sculptor used these photographs for other purposes, specifically for exhibition catalogues and sale through a gallery. (The photograph had standing because, under French law, there is no transfer of copyright through work for hire: an employee must sign a copyright transfer). Thus the photographer sued for copyright infringement.

To benefit from French copyright protection, the photographers must establish the originality of each photograph : in other terms each photograph must bear the mark of his personality.

The Court of Appeal closely analyzed each photograph and the context in which they were created. The Court found that in this case, the choice of the framing and the techniques of the photo shoot were dictated by technical requirements: to accurately show the sculptures and produce a faithful image, without particular aesthetic/artistic research or originality being involved. Moreover, the Court found that the photographs were not distinguishable from other images created by the sculptor or third parties and depicting the same sculptures.

The Court concluded that “the photographs at issue are merely the faithful reproduction of works of art and are only of a purely informative nature; that even if they are of an excellent technical quality, they are only the reflection of the know-how of their author in the framework of a technical work of execution without being marked by any originality capable of expressing the personality of the latter”.

The Court of Appeal of Paris had ruled similarly with regard to photographs that were faithful images of paintings (CA Paris, 24 June 2005). However, in the past, the same Court had reached a contrary result in a case where the photographer had, it seems, highlighted some of the fragments of a painting (CA Paris, 26 September 2001).

While it is risky to infer that all photographs of works of art may be freely used by the person commissioning photography, and the analysis and the outcome is fact specific, in general, when photographs are the faithful and accurate reproduction of a work of art, without special efforts or special aesthetics, the photographs should not enjoy any protection. Therefore, this will often be the case of photographs appearing in art/auction catalogs or monographs. 

2. Zinc plates used to produce a lithograph may be freely sold (Cass. Civ. 1 December 2011)

A gallery acquired two zinc plates  produced in the 1950s as reproduction tool of lithographs by Giacometti. These plates, sold for 70,000 euros, came from the printing house. The gallery was trying to resell them at a price of 150,000 euros. The artist’s heirs sought to seizure the plates and started a law suite.

The issue before the court was whether the plates were copyrightable, despite the fact they are tools for creation of prints. As consequence, any exploitation (display, sale, etc.) would have been subject to an authorization of the copyright holders. And the possessor of the plate would have needed to prove that the artist authorized it communication to the public (“droit de divulgation”).

Of course, the heirs pleaded that the plates qualified as protected works. This qualification would have allowed them to allege that the sale was subject to the control of the author and that, even in the absence of any publication by the owner in this form, their exploitation constituted a copyright infringement justifying their confiscation.

The Court did not agree with the copyright holders. The Court deemed that the zinc plates are a simple technical means used to allow the production of lithographs and do not constitute, in themselves, a copyrightable work. As a consequence, the Court found that the plates can be freely sold, as distinct from the lithographs.

This decision may be (and has been) criticized. Indeed the zinc plates, as an intermediate step of the manufacture of lithographs, are the reverse reproduction of the latter, without the colors chosen by the artist (Technically, by putting ink on the plate and printing on paper you obtain the figure in the right position, like a negative in silver photography). The sale of such reproduction is therefore an exploitation of the lithographs in a format that had not been desired by its author Giacometti, and which, in theory, may give rise to an infringement of his moral right.

*About the Author:

Olivier de BAECQUE, Attorney at law and named partner at BOROWSKY & DE BAECQUE, Paris, France. De Baecque can be reached at Olivier@bdbparis.com or Tel : +33 (0)1 53 29 90 00 – http://www.bdbparis.com

Notice:

This note is only for the purpose of summarizing a few selected judicial decisions. It is not to be relied on or deemed as legal advice.

© Olivier de Baecque – Edwige Hoflack – The authors want to thank Ms. Irina Tarsis, Esq. and Ms. Caroline Camp, Esq. who kindly reviewed this English version.

Gurlitt Reading List

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Who is Gurlitt?
Who is Gurlitt?

Have you heard of Cornelius Gurlitt? No, not the composer who died at 81 at the turn of the 20th century, and not the architect who died in 1938, but their nephew and grandson, an art keeper and the son of an infamous art dealer, Hildebrand Gurlitt? Does not ring a bell? Well, little is know about this Cornelius, apart from his age (he was born the year Nazis came to power, in 1933), his address in Munich (see below), his love for his collection (“there is nothing I have loved more in my life than my pictures“) , and his international travel habits (by train with less than 10,000 euros in cash).

Reportedly Cornelius Gurlitt lives in an apartment in this Munich building.

Some believe he has a Twitter account, with the handle of @CGurlitt, not to be confused with @CultureGrrl. If Cornelius has been remiss in paying German government taxes, he is surely not alone in this oversight.

Now, in all seriousness, there has been a flood of writing with Cornelius cast as a villain or at least as a protagonist because for decades he has managed to keep a large collection of Expressionist art hidden from the preying eyes of art historians, art market and families seeking restitution of art works stolen and displaced during World War II. The staggering volume of articles written and recycled since the story broke in November, dedicated to Cornelius and ‘his’ art is due in part to the slow response of the German government to the find. The record-setting prices for art works sold in recent auctions as well as the precious time running out for the claimants to recover their stolen property surely drive the international interest and explain the urgent need to find out exactly what constitutes the Gurlitt collection and where these artworks belong. As some have described the Gurlitt story, it is a gift that keeps on giving, regardless of the actual fair market value of the collection. There are many lessons that may be extracted from it, not the last being a possibility of Gurlitt legally owning most of not all of the works.

Instead of writing a digest about the situation unfolding in Germany and recognizing various competing interests vying for the Gurlitt trove, Center for Art Law is putting together a suggested reading list of articles and research references of use to illuminate the Gurlitt story. For the benefit of our readers most of the materials we offer will be in English, unless there is something outstanding and unique published in other languages. As always, any suggestions are welcomed.

Source: http://www.focus.de/
Source: http://www.focus.de/

News Reports of Note:

Bernhard Schulz, “Comment: What next for the Gurlitt treasures?” The ArtNewspaper, Issue 253, Dec. 2013

“The news hit like a bomb. When it came to light that German Customs investigators had seized around 1,400 Modern works of art from an inconspicuous Munich apartment, and that the tenant was 80-year-old Cornelius Gurlitt, the son of Hildebrand Gurlitt, a Hamburg dealer privileged under the Nazi regime, the news threw the international art world into turmoil. Surely this art could only have been stolen from Jewish owners or condemned as “degenerate” by the Nazis and confiscated from German museums? …”

“In the Shadow of the Holocaust: An ARt Trove Exposes a Legal Vacuum” The Economist Nov. 30, 2013.

“ONE day Hollywood will spin its yarns around Cornelius Gurlitt, the eccentric 80-year-old recluse who lived quietly for decades in a drab Munich flat amid towers of canned food and 1,406 stunning works of art. But first lawyers, diplomats and the descendants of Jews and other victims of the Nazis need their questions answered….”

available here…

Simon Shuster, “Why the Man Who Hoarded Nazi-Looted Art May Get to Keep It All” Time Nov. 19, 2013.

“In the court of public opinion, Cornelius Gurlitt never stood much of a chance. Last year, during a search of his Munich apartment, German authorities found a massive hoard of paintings that the Nazis seized from Jewish collectors during the Holocaust…”

available here…

Ozlem Gezer, “Interview with a Phantom: Cornelius Gurlitt Shares His Secrets” Spiegel Online Nov. 17, 2013.

“No one had ever seen Cornelius Gurlitt in his nightshirt before, until a day in February 2012, when they broke the lock and marched in — the strangers, as he calls them — the customs investigators and officials with the Augsburg public prosecutor’s office….”

available here…

Mary M. Lane, “Matisse Painting Could Serve as Test Case for Return of Nazi Loot” The Wall Street Journal, Nov. 15, 2013.

“It is the jewel of the more than 1,400 works in the trove of suspected Nazi loot discovered in Munich: “Woman with a Fan,” a 1923 Matisse oil painting that depicts a cream-skinned brunette in a flowered blouse holding a gold and navy fan….”

available here…

Alex Webb and Catherine Hickley, “Nazi Loot Heirs Look To Reclusive Hoarder to Recover Art,” Bloomberg Nov. 13, 2013. 

“Ekkeheart Gurlitt has little good to say about his cousin Cornelius, who hoarded hundreds of works by artists such as Pablo Picasso and Marc Chagall for the past half century. There’s one positive thing, though, that he’ll tell you about the 80-year-old recluse: He saved the art….”

available here…

“1500 Werke von Künstlern wie Picasso, Chagall und MatisseMeisterwerke zwischen Müll – Fahnder entdecken in München Nazi-Schatz in Milliardenhöhe” Focus Nov. 4, 2013.

available here…

Tracing Gurlitt through Provenance Research Tools

Musées Nationaux Récupération File for E. Degas painting with H. Gurlitt provenance.
Musées Nationaux Récupération File for E. Degas painting with H. Gurlitt provenance.

Other Resources:

If you want a quick short digest of the story, take a look at the Wikipedia. Why not?

Recent Decisions and Developments in FRENCH ART LAW (Part 1)

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By Olivier de Baecque, Attorney at law*

The following contains a selection of recent judicial decisions regarding the consignment of art works which are of practical importance to participants in the French art market. It should be noted that, under Civil law, the consignment of a work is precisely regulated by the Civil Code as a “Contrat de dépôt”. In that context, we note a series of decisions resolving conflicts of ownership and compensation between artists and galleries entrusted to display and sell the works of art.

1. Who is the rightful owner of artworks consigned by an artist to a gallery? (Court of Cassation, 22 March 2012)

The lack of formal relationships between galleries and artists regarding the artworks on consignment for sale can lead to ownership disputes and result in litigation over these works, even more so when the consignments have been entrusted to art galleries for a prolonged period of time.

In this case, the heirs of Alexander Calder claimed ownership of fourteen works in the possession of the successors of Aimé Maeght, the illustrious and long-time dealer of the artist.

The successors of the dealer invoked their possession of the works as proof of ownership, in application of the famous civil law rule of evidence for proving property: “In the case of moveable property possession is equivalent to title,” (Article 2276 of the Civil Code).

The French Civil Supreme court (Cour de Cassation) ruled that such a presumption of ownership can be reversed by any means of proof against the gallery because it is acting as a merchant, and rules of evidence are specific for merchants. Here, the heirs of the artist produced writings indicating that the works were only on loan to the gallery. In addition, the former director of the gallery testified that the works were merely consigned with the gallery, with a view to their potential sale, at a price set with the artist. Therefore, the Court ruled that the possession of artworks by a merchant is not sufficient to demonstrate that its successors are the rightful owners.

Conclusion: To prove a purchase (or a donation) from the artist, the gallery is well-advised to have relevant written evidence. Given that the gallery is a merchant, any ambiguity as to the ownership of the works on loan will be construed against the merchant.

2. Is the gallery liable for damages in case of deterioration and restoration of works on consignment? (TGI, Paris, 9 March 2012)

The facts of a case heard by a First Instance Court (Tribunal de Grande Instance) in Paris are as follows: An artist and a gallery terminated their relationship. While on deposit in that gallery, some works deteriorated and, accordingly, the gallery attempted to restore these works. After the return of the unsold stock, the artist alleged that the works thus restored had been damaged.

A judicially appointed expert determined that the works in dispute did show damage or restoration marks inconsistent with proper restoration practice and with the artist’s technique. Furthermore, the expert determined that the restoration of the works was carried out without artist’s agreement.

The Court found in favor of the artist and held that the gallery must compensate the artist both for the need to effect new restorations and for damages suffered to the works. It further found that the value of the works had depreciated and ordered the gallery to make further compensation in proportion to the depreciation. Finally, the Court held that the poor quality of the restored works commissioned by the gallery infringed upon the artist’s moral rights to the integrity of his works and awarded the artist additional damages.

Conclusion: The Consignment contract obviously creates a duty for the gallery to ensure the care and protection of works entrusted. Therefore, the gallery is liable for any damage to them. In the event of any damage to the work, it is advisable to confer with the artist before undertaking any restoration of the works. If the artist is not consulted, restoration of the works  may also give rise to an infringement of the artist’s moral rights.

3. Who is liable in case of deterioration of the work during the return transport and what compensation is payable? (Court of Appeal, Aix-en-Provence, 18 October 2012)

A gallery entrusted a work of César to a museum. The latter undertook to cover all the costs of consignment and of transport and to obtain “door to door” insurance for an insured value agreed to in the contract. During the return transportation, the work suffered significant damage. The insurer refused coverage based on the museum’s failure to have previously provided notice of the consignment, as required by its insurance contract.

A judicial expert determined that it was not possible to successfully restore the damaged work. The gallery brought legal action against the museum seeking compensation for the irreparable loss of the work in the amount of the full market value of the work. In turn, the museum filed an action against the art carrier. In the latter case, the carrier was able to avoid any liability because the statute of limitations had expired.

In the first case, the Court held the museum liable for damages, not for the deterioration of the work, which was not of its doing, but for failing to have fulfilled its contractual commitment to purchase insurance. Given that the liability had resulted from the failure to provide adequate insurance, the compensation awarded was limited to the value of agreed insurance, on the grounds that the gallery would not have recovered more if the work been properly insured. The gallery had sought to recover 300,952 Euros but was awarded only 228,674 Euros.

Conclusion: Art loans, transportation and insurance are expensive and involve a degree of risk. In matters relating to insurance, one must be careful to link the insured value to the actual value of the work and make sure that the insurance policy that is to be provided by third parties has actually been obtained. In any event, it is advisable to bring action against the carrier promptly as there is a short, one-year statute of limitations period during which a damaged party may act (Article L. 133-6 of the Commercial Code). 

4. Who bears the burden of proving the lack of conformity of the restituted works? (Court of Cassation, 26 September 2012)

A painter consigned eight canvases to a person (a “bailee”) to sell. Two years later, the bailee failed to return the paintings because she had been dispossessed of them by her ex-husband.  The painter brought legal action to recover the paintings or failing that, for reimbursement of their value. The person in possession of the works died during the legal proceedings and her heirs, who claimed to have found the canvases, offered to return the paintings to settle the dispute. The painter refused the settlement offer on the grounds that one of the major works allegedly had been replaced by another which was of lesser value.

There is no question that the bailee and her heirs must return the same works as those actually received on consignment or otherwise is liable to pay damages. However, the lack of conformity between the works consigned and those returned must be proven. The issue then is who bears the burden of proof to show that the paintings given back were identical to the ones initially consigned.

In this case, the Court of Appeal(s) had criticized the heirs of the bailee for failing to establish the similarity of the works returned and found in favour of the bailor/the artist.

However, the Court of Cassation reversed the holding and ruled that in this specific case it was up to the artist to prove the lack of conformity. The Court of Cassation’s approach is consistent with the traditional rules of evidence: the burden to prove the necessary facts falls on the party seeking success of its claim. Here, given that the plaintiff artist claimed that he was missing a work, it was incumbent upon him to prove it. Lacking such proof, his claim was dismissed. The court held that a deposit document describing precisely the works and their condition signed by both parties would have sufficed.

Conclusion: Ruling in this and similar cases illustrates the practical importance of signing a precise and detailed consignment document.

*About the Author:

Olivier de BAECQUE, Attorney at law and named partner at BOROWSKY & DE BAECQUE, Paris, France. De Baecque can be reached at  Olivier@bdbparis.com or Tel : +33 (0)1 53 29 90 00 – http://www.bdbparis.com

Notice:

This note is only for the purpose of summarizing a few selected judicial decisions. It is not to be relied on or deemed as legal advice.

© Olivier de Baecque – Edwige Hoflack – The authors want to thank Ms. Irina Tarsis, Esq. and Ms. Caroline Camp, Esq. who kindly reviewed this English version.

Case Preview: Meyer v. Bd. of Regents of the U. of Oklahoma, or How long will Oklahoma herd Pissarro “Sheep”?

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Camille Pissarro, "Sheperdess Bringing in Sheep/Bergere rentrant des moutons" (1886)
Camille Pissarro, “La Bergere rentrant des moutons/Shepherdess Bringing in Sheep” (1886)

On Nov. 22, 2013, New York Country Lawyers’ Association held its 6th Annual Art Litigation and Dispute Resolution Practice Institute. Raymond Dowd, partner with Dunnington, Bartholow & Miller LLP presented an impassioned keynote address entitled “Ethics and Nazi Looted Art, which he began by decrying the headline of a recent The New York Times article apparently legitimizing Nazi property laws (See Enduring Nazi Law Impedes Recovery of Art). Dowd appealed to the practitioners, art historians and reporters in the room to speak up against the film of legitimacy that seemingly condones the status quo of keeping Nazi-era looted artworks where they ended up years and decades after the World War II, and to question “the toxic sludge,” or the artworks that were donated to the American institutions despite their apparent Nazi looted provenance and unlawful taking from the original rightful owners. In addition to shaming the collectors and auction houses, Dowd spoke fervently against the American museums that have used technical defenses — statute of limitations and laches — to hold on to artworks that were clearly stolen during the war. While his arguments for reviewing the acquisitions of artworks sold from the German museums under the ‘degenerate’ guise is more difficult to support, Dowd’s belief that works from private collections must be returned to the rightful owners is absolutely right.

Yet, despite the evidence of the American goodwill and dedication to effectuating the return of looted property, including various declarations and guidelines promulgated in the United States and abroad (see for example Pragmatic not Sympathetic US rejects ADR forum for Nazi looted Art), including the American Association of Museums and the Association of the Art Museum Directors in support of provenance research and cooperation with claimants, cases contesting ownership continue appearing on judicial dockets.

On May 9, 2013, Leone Meyer brought a Complaint against the Board of Regents of the University of Oklahoma, David Findlay Galleries, Inc, and other related Defendants in her efforts to recover an 1886 Camille Pissaro oil painting “Shepherdess Bringing in Sheep” (the “Painting”), which was stolen from her father in the 1940s. Leone Meyer is a daughter and heir of Raoul Meyer, a Jewish French businessman who owned this and other impressionist paintings prior to World War II. According to the Complaint, the Painting in dispute was looted and seized by Nazi Occupational forces. It was imported into the United States in 1956, via the David Findlay Galleries, which sold the Painting to Aaron and Clara Weitzenhoffer, who in turn bequest it and other works to the University of Oklahoma’s Fred Jones Jr. Museum of Art in 2000.

Plaintiff is seeking full and complete restitution of the Painting on the theory of unjust enrichment. She alleges that Defendants failed to conduct provenance research of the work and investigate ownership, which would lead the trail to Raoul Meyer’s heirs. According to the Complaint, Meyer’s collection was deposited with “Credit Commercial de France” in 1940 but the property was seized  and transferred to a German collecting point at the Louvre Museum. After the War, artworks missing from the Meyer’s collection were listed among French cultural losses in “Repertoire des Biens Spolies en France Pendant la Guerre de 1939-1945/Registry of Assets Looted in France During the War of 1939-1945. The Pissaro Painting is listed in the “Registry.” Furthermore, the Painting was sited by Raoul Meyer in 1953 but it disappeared before the family could negotiate its return.

The claims for relief include Replevin, Conversion, Constructive Trust, Declaratory Relief and Restitution.  The case has been assigned to District Judge McMahon.

Attorney for Plaintiff is Pierre Ciric, of The Ciric Law Firm.

Source: Complaint, Meyer v. Bd. of Regents of the U. of Oklahoma, et al, 13-CIV-3128 (S.D.N.Y. filed May 9, 2013); The New York Times.

Gurlitt Connection: Dix’s granddaughter on Otto Dix’s paintings in Gurlitt possession

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German artist Nana Dix, grand-daughter of the painter Otto Dix, in her studio in Munich. AFP PHOTO/CHRISTOF STACHE.
Dozens if not hundreds of articles appeared about the art hoard (latest from TNYT), amassed during the Nazi period and found in Munich 70-some years hence, in possession of an 80-years old hermit, Cornelious Gurlitt, the son of an art dealer Hildebrand Gurlitt. Some interested parties conservatively quote German laws and expect that Gurlitt will be allowed to keep the artworks, other advocates passionately appeal to the public’s moral integrity demanding accounting and recovery of works taken art museums and individual victims of the Nazi persecution.
Celine Le Prioux, writing for Agence France Press, interviewed Nana Dix about the discovery of Otto Dix’s paintings, including an unknown self-portrait, among the hundreds of works kept secret by Cornelius Gurlitt. Nana Dix, an artist in her own right, lives less than a mile from Gurlitt’s apartment. She was quoted as saying “It’s eerie to think that I often passed by with my children,” and furthermore she described Germany’s handling of the hoard as “scandalous”.

Otto Dix, Kriegskrüppel (War cripples), drypoint print based on a painting labeled  degenerate and destroyed in 1937.
Otto Dix, Kriegskrüppel (War cripples), drypoint print based on a painting labeled degenerate and destroyed in 1937.

Otto Dix (1891-1969) served during World War I and his paintings were deeply affected by the horrors he observed as a solider. Some of works were labeled and exhibited as degenerate; at least two were burnt in the 1930s, while Dix was banned from painting and dismissed from his post at the Dresden Arts Academy. Dix was conscripted to fight in World War II and was imprisoned by the French.

Source: ArtDaily.

Untitled but taxable: Face-off between the IRS and the Basquiat heirs

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JEAN-MICHEL BASQUIAT, "SANS TITRE," Est. value ($500,000-800,000)
JEAN-MICHEL BASQUIAT, “SANS TITRE,” Est. value ($500,000-800,000) — to be auctioned by Christie’s Paris, Dec. 2013.

For those attending the 2013 National Conference of the Appraisers Association of America in New York last week (Nov. 8-10), the announcement that Basquiat surviving sisters are suing the IRS rings familiar. After all, the conference organizers built in a lot of IRS material into the program, including “Current Issues at the IRS”, “De-mystifying the IRS:Preparing a Successful Report for Tax Purposes,” “Recent Complex Art and Tax Law Cases,” and “Blockage Discount: A Primer.” To recap, for tax purposes, value of art may or may not depend on the Fair Market Value of the object depending on whether the valuation is being done for the artist or the collector, for charitable contribution purposes or estate appraisal. For example, if a living artist decided to donate his art, he may only deduct the cost of paints, brushes and canvas regardless of the fact that his or her works sell for significantly larger sums in the primary and secondary market. Works appraised in excess of $3,000 need to have comparables included in the valuation. Depending on the appraisal, the pieces of art work may be referred to the IRS Art Appraisal Services team for audit of the evaluation. Depending on their findings, the appraisal is accepted, adjusted in part or rejected. Taxpayers may appeal the determination, in which case the same team, but a different appraiser on the IRS payroll, advises the IRS Appeals Officer on the case and the weaknesses of both sides to determine the hazards of litigating or settling a particular appeal. Taxpayers dissatisfied with the appeal process may proceed to litigation in the Unite States Tax Court. Incidentally, pursuant to IRS Internal Revenue Manual, the Service may penalize appraisers for promoting abusive tax shelters or aiding and abetting understatement of tax liability. See Sec. 20.1.12.1.

In April 2014, the US Tax Court will hear the case brought by Lisane and Jeanine Basquiat, sisters of the famous artist Jean-Michel Basquiat, on the grounds that the Service overvalued the artist’s estate. Jean-Michel died in 1988 at the age of 28. For decades the his estate was administered by his father, Gerard Basquiat. Gerard, who died in July 2013, brought the initial complaint. As reported elsewhere, Basquiat’s mother died in 2008 and her portion of the estate was divided between the sisters and the father of the artist. At that time, the estate was appraised by Sotheby’s at $36 million. Gerard paid $8.5 million in estate taxes. Independently, the Service audited the Sotheby’s appraisal and estimated the basis to be $138 million. Half of the total was subject to tax and the family owed the IRS another $7.30 million in taxes. Gerard challenged the audit arguing that the Service did not adjust for a blockage discount — after all, selling the entire collection at once would overwhelm the market and result in lower prices realized.

The idea to apply the blockage discount appeals to taxpayers because they seek to reduce estate taxes. However, the heirs should be aware that there is a possibility of paying more in taxes if the collection sells above the discounted valuation.

The Service is well familiar with the concept of the “blockage discount” and it recognizes that “a [blockage] discount may be allowed where a large quantity of any one type of art is offered on the market at one time, and would substantially depress its value.” IRS Valuation Guide (Oct 1995). “Blockage is triggered by a determination that an item’s value in the marketplace does not accurately reflect its fair market value because it is part of a bloke which cannot be sold within a reasonable time without adversely affected price.” Janis v. C.I.R., 469 F.3d 256 (2nd Cir. 2006). In fact, the amount of the discount is based on the costs of holding the inventory such as storing, insuring and otherwise maintaining the collection. There are different methodologies for calculating the discount: hypothetical, see In Estate of O’Keeffe v. C.I.R., 1992 RIA TC Memo 92,210 (1992) and the present value of the stream of sale, see Calder v. C.I.R, 85 T.C. 713, 717 (1985). Both O’Keeffee and Calder estate contained hundreds of artworks.

Another case, In Estate of Smith v. C.I.R. 57 T.C. 650 (1972), where the executors advocated for a 75% blockage discount, decided by the United States Tax Court allowed a 37% discount. The Basquiat estate contains over 1,300 works of art, including some by other artists, such as Andy Warhol, and the time will tell whether there is a deficiency in the estate tax paid. However, if the collection is estimated far below the fair market value and the Basquiat’s sisters start selling the works they will be have to pay income tax on their profit (amount earned above the value used for estate tax purposes), which is higher than the estate tax

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Disclaimer

This article is intended as general information, not legal advice, and is no substitute for seeking representation.