Towering Ban on Ivory Trade

By Mia Tomijima*

Byzantine ivory relief, Death of the Virgin (around 1000). Photo: © Worcester Art Museum, all rights reserved.

Byzantine ivory relief, Death of the Virgin (around 1000). Worcester Art Museum, MA. 1942 Museum Purchase.

Ever since the United States announced the ban of commercial trade of African elephant ivory in February 2014 in order to protect dwindling populations of the endangered mammal, it seems that not a day has gone by without ivory being mentioned in the news. Recently, a loan of Byzantine-era ivory religious reliefs from the British Museum to the Museum of Russian Icons in Massachusetts was denied an import permit for entry into the U.S., causing the British Museum to revoke its loan of the objects. The news was surprising considering the federal government’s amendments made to regulations assured museums and collectors that ivory as part of a traveling exhibition – which does not have an effect on the supply and demand of ivory – would still be permitted to be imported.

The change in law has naturally been widely well received by environmental and animal rights groups, but has been met with great resistance in the art world. After United States Fish & Wildlife Service’s Director Dan Ashe announced new restrictions over trade in Director’s Order No. 210 on February 25, 2014, criticism over the specific details of the rules caused USFWS to issue amendments to its rules. To date, the rule has been amended twice, on May 15, 2014 and on July 31, 2015. Last month, the federal government solicited comments over its proposal to revise the rules to further restrict interstate commerce and export of ivory, with the exception of antiques (for details, please visit the Federal eRulemaking Portal).

As if these federal changes and proposals were not confusing enough to comply with, many individual U.S. states also enacted state laws to restrict trade further. Critics have questioned the state activism and its enforcement, federal preemption, and whether these regulations will even carry out their intended effect of protecting elephants in their home continent. Center for Art Law now hopes to clarify exactly what is happening in the legal landscape of ivory trade and how it has affected the art world. In this article, we will provide a general history of the federal laws, the recent amendments to the Director’s Order, an overview of individual state laws, and the way it has affected the arts.


Brief Background of Relevant Laws

Recognition of the need to protect endangered animals first began with the Convention on International Trade of Endangered Species of Wild Fauna and Flora (“CITES”). Taking effect on July 1, 1975, CITES is a multilateral treaty for nations to cooperate through international trade to ensure protection of certain species against over-exploitation. Today, CITES is signed by 181 nations around the world and affects more than 35,000 species, with varying levels of protection to those appearing on Appendix I (most threatened), Appendix II, and Appendix III. To give effect to the treaty, each signatory country enacts its own laws to protect and regulate the trade of CITES species imported and exported into the country.

In the United States, the need for controlling/protecting endangered species came with the alarming speed of extinction of the once abundant passenger pigeon caused the United States government to first jump to action. The U.S. passed laws such as the Lacey Act of 1900, the Migratory Bird Conservation Act of 1929, the Bald and Golden Eagle Protection Act of 1940, and the Endangered Species Act of 1973 (“ESA”). The ESA, as amended, implements CITES. The ESA makes it illegal for anyone to take, possess, sell, offer for sale in interstate or foreign commerce, import, export, deliver, carry, transport, or ship in the course of a commercial activity, any ESA species or part thereof. Two federal agencies administer these US laws: United States Fish and Wildlife Service (“FWS”) and the National Oceanic and Atmospheric Administration.

Congress built in exceptions into the ESA for certain items, including antiques. Section 1539(h) of the ESA defines “antiques” as more than 100 years old, containing the species article prior to enactment of the Act, and legally imported into the U.S. (either legally with a CITES permit, or if in the U.S. before December 28, 1973, by providing proof of how the antique entered the country and that it was identified as that species when imported). Without getting into the nitty-gritty of the 1973 Act’s exceptions, ivory that was imported legally, either before 1989, or after 1989 with a CITES certificate, could still be sold in the United States.

However, by the 1980’s, Congress found that CITES and the ESA were still insufficient at protecting depleting elephant populations and enacted new legislation. In 1988, Congress enacted the African Elephant Conservation Act (“AECA”), the first multinational conservation act to protect a specific species. The AECA established various moratoria on import or export of raw or worked ivory, effective June 9, 1989. Together, CITES, ESA, and AECA helped decrease demand, and thus supply, for ivory. But recent changes in political initiatives between the U.S. and African nations have necessitated another change in the rules.


Developments in the US Federal Law Since 2014

        Alarming reports that over 30,000 African elephants die annually to support a booming black market and that proceeds from ivory poaching fund organized crime and African jihad groups caused environmental groups and nations around the world to jump to action. To curb demand, President Obama issued Executive Order 13648 on July 1, 2013, committing the U.S. to step up its efforts to combat wildlife trafficking. While the previously mentioned laws have been in place for decades, 21st century changes to the ivory trade  were deemed necessary because of the difficulty of enforcement in determining whether an item is truly an antique or just freshly poached ivory, colored to appear aged.

The controlling federal agency, Fish & Wildlife Service, announced new restrictions over trade in its Director’s Order No. 210 (see our previous article for more details), effective February 25, 2014. While this announcement was a triumph for environmental groups, it was a near death-sentence to people who regularly trade or move property containing ivory. Order No. 210 placed an outright ban on importation of African elephant ivory, with limited exportation allowed for antiques. The Order built in exemptions for an “antique” that qualifies under the following documented criteria:

  • (a) It is 100 years or older;
  • (b) It is composed of (in whole or part) of an ESA-listed species;
  • (c) It has not been repaired or modified with any parts of that species after December 27, 1973; and
  • (d) It is being or was imported through an “antique port.”

Even though the Order cured loopholes that existed in other federal acts, it also created seemingly impossible hurdles with which to comply, such as how musicians could travel and perform with musical instruments containing ivory, how antique guns that contain a proportionately small amount of ivory inlay would be affected, and what antique dealers had to prove in order to keep on selling their merchandise. The Order triggered a huge uproar in affected communities, so much so that the agency responded by amending the Order to provide greater clarity and more allowances in May 2014, and once again in July 2015.


Federal Amendments

First, the May 2014 amendment of Order No. 210 was revised to permit the import of non-commercial ivory that is either part of a musical instrument, a traveling exhibition, or as part of a household move or inheritance, and removed from the wild prior to February 26, 1976. The May 2014 amendment required that a work qualifying for one of these categories cannot be sold since February 25, 2014, however the July 2015 amendment removes this extra sale date requirement. The July 2015 amendment further restricts the export requirements for non-commercial ivory to only those items that meet the ESA antique exemption, or worked ivory that was legally acquired before February 26, 1976 and is either part of a musical instrument, traveling exhibition, or household move or inheritance, or worked ivory that qualifies as pre-Act. While this new proposed amendment creates greater restriction, it also provides better uniformity with the import rules. The July 2015 amendment also adds an import limit of whole tusk trophies from sport hunting of African elephants to two per hunter per year. Note that once sport-hunted trophies are imported into the U.S., they cannot be exported as they are personal to the hunter who brought them in. FWS hopes that these newly created allowances will exempt items that have little or no effect on current wildlife trafficking.

Second, the May 2014 amendment fixed the glaring problem with the “antique ports.” Before the amendment, a seller of an antique containing ivory trying to qualify for the exception had to prove that a specific object was imported through one of 13 “antique ports.” U.S. Customs and Border Protection designated 13 ports for the entry of antiques made of ESA-listed species on September 22, 1982, which include: Boston, Massachusetts; New York, New York; Baltimore, Maryland; Philadelphia, Pennsylvania; Miami, Florida; San Juan, Puerto Rico; New Orleans, Louisiana; Houston, Texas; Los Angeles, California; San Francisco, California; Anchorage, Alaska; Honolulu, Hawaii; and Chicago, Illinois. This antique port rule in the original Order created a complicated situation for objects imported into the United States before Sept. 22, 1982 (prior to when the ports were designated), or manufactured in the U.S., as these would never qualify as an antique. The agency recognized this predicament and amended the order to retain the antique port requirement, but added an exception for items imported before Sept. 22, 1982, or those manufactured in the United States and never imported.

Third, the federal government revised the regulations that implemented the international treaty CITES, in order to reaffirm, clarify, and improve public understanding of the “use-after-import” provisions, so as to reduce sales (including intrastate sales) of ivory and other wildlife imported for noncommercial purposes.

Fourth, the July 2015 proposed amendment is imposing new restrictions on foreign and interstate commerce. Previously, there was no restriction on foreign commerce, but the U.S. is revising the rule to apply to individuals or entities subject to U.S. jurisdiction. The July 2015 amendment restricts sales in foreign settings and across state lines to items that meet the ESA antique exemption and certain manufactured items that contain a small or de minimis amount of ivory. To qualify for the “de minimis” exemption, the item must meet the following conditions:

  • A. If located in the U.S., the ivory must have been imported before January 18, 1990, or imported under a CITES certificate with no limitation on commercial use.
  • B. If located outside the U.S., the ivory must have been removed from the wild before February 26, 1976.
  • C. The ivory is a fixed component of a larger manufactured item and not the primary source of the item’s value.
  • D. The ivory is not raw.
  • E. The manufactured item is not made wholly or primarily of ivory.
  • F. The total weight of the ivory component is less than 200 grams.
  • G. The item must have been manufactured before the effective date of the final rule.

The July 2015 amendment also prohibits foreign commerce in sport-hunted trophies and ivory imported/exported as part of a household move or inheritance. It appears that the federal government is trying to close loopholes that ivory dealers may use to sell their items. Some of the added de minimis requirements are tricky to show and defined vaguely and may leave a considerable amount of discretion up to law enforcement.

Naturally, there are attorneys specializing in CITES issues. According to one such practitioner, William Pearlstein of Pearlstein & McCullough LLP, one big issue with the federal regulation overall is the difficulty of species identification. According to Pearlstein, Asian elephant ivory, which can be imported and sold, is treated differently from African elephant ivory, which cannot. Finding a DNA or biology expert to test an object to determine from which species the ivory was obtained is difficult, expensive and invasive. Pearlstein noted that since federal import and export trade regulations is critical for the art market, the need for a species neutral antique exception that would treat Asian and African elephant ivory the same under U.S. law is vital.

In addition to Order No. 210 and its amendments, federal legislators are now advancing bills in the House and Senate with aims of protecting elephants by increasing enforcement and criminal penalties, while also permitting trade of legally obtained ivory. Senators Daines (R-MT) and Alexander (R-TN) introduced S1769 the African Elephant Conservation and Legal Ivory Possession Act of 2015, to remove the unilateral decision making power of the U.S. Fish and Wildlife Service. The bill permits ivory to be imported or exported under the AECA and the ESA if: (1) the raw ivory or worked ivory is solely for a museum; (2) it was lawfully importable into the United States on February 24, 2014, regardless of when it was acquired; or (3) the worked ivory was previously lawfully possessed in the United States. The bill proposes to decrease poaching by placing a FWS enforcement officer in each African country with a significant elephant population to arrest poachers and work with local wildlife enforcement. Representative Don Young (R-AK) introduced H.R. 697, which mirrors the senate bill. Senator Feinstein (D-CA) and Senator Graham (R-SC) also introduced a bipartisan bill S27 to increase the criminal penalties against those who sell illegal ivory from the small fines and months in prison to larger fines and years in prison, similar to the criminal sentencing for money laundering and racketeering. The Appraisers Association of America is encouraging individuals to contact their Senators and Congressional Representatives to support these bills.


States Take Action

As if the new federal laws were not complicated enough, individual states are now joining the fight to protect elephants by passing regulations to stop the trade of ivory. Thus, on May 8, 2014, New Jersey became the first state to pass such a law, prohibiting the import, sale, offering for sale, purchase, barter, or possession with intent to sell any ivory, including rhinoceros horn. Noteworthy is the lack of distinction between Asian and African elephants, which is still present in the federal regulations. New Jersey exempts ivory that was conveyed to legal beneficiaries, with CITES or ESA permits, and those with a bona fide educational or scientific purpose. It also states that appraisals alone do not constitute possession with intent to sell.

The same year, the State of New York was the next to join the prohibition, arguably one of the largest consumer states of ivory. Similarly to New Jersey, New York prohibits the sale, offer for sale, purchase, trade, barter or distribution of elephant and mammoth ivory articles and rhinoceros horn, with limited exceptions, and increased criminal and civil penalties for illegal sales. The law went into effect on August 12, 2014. NY’s Department of Environmental Conservation (“DEC”) may issue licenses or permits for items that meet certain “limited exceptions,” including:

  • Antiques that are at least 100 years old and comprised of less than 20 percent of ivory or horn (“de minimis rule”);
  • The distribution or change in possession is for educational or scientific purposes, or to a museum chartered by the board of regents, or by special charter from the New York State Legislature;
  • The distribution is to a legal beneficiary, heir or distributee of an estate; or
  • The article is a musical instrument that contains ivory or horn and was manufactured no later than 1975.

The “de minimis” rule, where if an item is constituted of 20% or less of ivory, is unique to New York State. When the legislation was passed, arts advocates argued that the state law could be preempted by the federal laws since the laws conflicted as to the exact definition of an exempted antique. William Pearlstein reports that these advocates agreed to back down on this point in exchange for certain additions to the FAQ on the DEC website. Specifically, the 20% de minimis rule would apply only to intrastate sales (within the state of New York), that there would be an exception for internet sales, and that to qualify for the antique exception, one must demonstrate that the ivory is less than 20% by square volume or weight and that reasonable estimates were acceptable for a 100-year-old work. The New York legislature is now allegedly taking back its promises. Pearlstein says that the legislature is taking back its evidentiary requirements as negotiated, and are now requiring date-stamp proof of age, which can be potentially impossible for some items. He states that this backsliding on its previous guarantees is coming from pressure from NGOs and the Clintons, who have both been using their political muscle to see this legislation carried out in full force. The art trade is getting tired of being pushed around and not having their voices heard, especially considering that no such permitting is required under federal law. Thus, it may appear that litigation on the federal preemption issue may be imminent.

This would not be the first time that a state law has come into conflict with federal law for ivory trade. In 1983, the Ninth Circuit ruled that federal law preempted a California statute prohibiting trade in elephant parts within the state. In Man Hing Ivory and Imports v. George Deukmejian, Governor of the State of California, et al., 702 F.2d 760 (9th Cir. 1983), an ivory importer argued that CITES and the ESA preempts state law, which would not allow him to trade under his federal permit. CITES did not apply since it is merely a treaty that requires other implementing laws, but the Court found that Section 6(f) of the ESA and 50 C.F.R. Sec. 17.40(e) of the AECA applied. Section 6(f) specifically states, “[a]ny state law … is void to the extent that it may effectively […] (2) prohibit what is authorized pursuant to an exemption or permit provided for […] in any regulation which implements this chapter.” Moreover, the Court predicted the situation currently unfolding, when it noted in a footnote that if it were “to uphold application of [the California statute] section 653o in the face of federal permits allowing trade in elephant products, we would pave the way for a day when an enterprise such as appellee’s could secure a federal permit authorizing trade in elephant products and yet find itself unable to conduct such trade within the United States because of widespread state adoption of statutes paralleling California’s section 653o. We think it improbable that Congress intended import or export permits under the Endangered Species Act to be revocable by state legislation.”

In light of this ruling, it appears that precedent has at least been set on the West Coast. However, states such as California, Oregon, Hawaii and Washington are all considering or recently enacted state prohibitions against ivory over the past two years. Time will show if the right plaintiff like Man Hing will emerge to challenge federal preemption of these individual state statutes once again.


Enforcement & Effect on the Arts

Now that we understand the law and its many iterations, we can look to how it has been implemented and enforced. Not surprisingly, these greater enforcements have made arts and antiquities dealers cautious, and many have had to halt sales of all ivory until the coast is clear. Once expensive and luxurious antiquities, such as chess sets, religious idols, pianos, and violins, are all practically worthless in the eye’s of the marketplace.

On June 19, 2015, FWS crushed nearly one ton of illegally smuggled African elephant ivory in New York City’s Times Square. With this dramatic statement that the government agency dubbed #ivorycrush, the U.S. hopes to set an example to pressure Europe and China to also increase enforcement against trafficking of wildlife.

The laws (of physics) teach us that with every cause, there is an effect. While the measures taken to protect dwindling populations of elephants in no ways lacks merit, the change in law has been met with great reluctance in the art market, where ivory has historically been used for centuries as canvases for miniature portraits, inlays in decorative arts and furniture, and even as musical amplifiers in violins. Prior to the ivory crush in Times Square, FWS permitted Bryna Freyer, senior curator at the National Museum of African Art, and Terry Weisser, director of conservation and technical research as the Walters Art Museum, to evaluate the items to be crushed to determine whether any items had cultural significance worth saving from becoming a pile of ash. Of the ton of items evaluated, Freyer and Weisser saved only two items. The two “pieces of interest” were both side flutes carved in the distinctive style of a tribe in Nigeria, saved because they were recognizable and therefore require greater cultural sensitivity. While proportionately very few items in the crush had value, the fact that there was even one illustrates the conflict of the law’s environmental cause with it’s historical and cultural effects. Freyer stated to Smithsonian Mag: “When this stuff is lost, we lose a chance at better understanding the people who made the object,” adding that piecing together cultural history is like assembling a 500-piece jigsaw puzzle. “You think OK, we’ll get rid of [these pieces]. It’s not going to make a difference, because there are 498 other pieces. But you never know which is the piece that’s going to really help you understand.”

Other reports indicate that enforcement of the order and application of the exceptions are not functioning as expected. The Museum of Russian Icons was denied permits to display six Byzantine ivory reliefs loaned by the British Museum. Despite the pieces dating from the 9th to 12th century (well over the 100 year age requirement) and that they were to be imported for an educational traveling exhibition, FWS declined to issue permits and provided no concrete reason for its denial. The change in plans forced the Museum of Russian Icons to receive a loan at the last minute from the Worcester Art Museum in Massachusetts. Traveling exhibitions have no effect on the marketplace demand for ivory. Furthermore, they help educate the public on mediums formerly used in the arts, and which have since gone out of style. The report from the Museum of Russian Icons serves as a cautionary revelation that FWS and its enforcement officers may be acting contrary to the law and its amendments.



Renewed efforts to to protect African elephants are undoubtedly admirable. Legislation protecting endangered elephants from poaching and limiting the trade of ivory has long been on the books. In the years of 2012-13, reports showed that roughly 100,000 elephants were killed in Africa, revealing the inefficacy of those previous laws, and causing new efforts. However, the recent change in law has not yet shown that it can protect elephants anymore than previous laws could. Use of ivory in visual and decorative arts is a historical fact. We can learn from it and make changes for the future. Antique ivory owners and art institutions in possession of ivory-containing artifacts hardly deserve to have their assets devalued. Greater flexibility in regulation and enforcement must be found for these new laws to have their intended effect.

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*About the Author: Mia Tomijima, Brooklyn Law School alumna, is an attorney admitted to New York Bar. She received a bachelor’s degree in art history from UCLA, and has worked with museums, auction houses, and other arts non-profits. Mia was a post-graduate fellow with Center for Art Law in the Spring 2015.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.

Hopi Restitution Suits: Questions of Standing and Rights

By Lindsay Voirin, Esq.*

Center for Art Law previously reported that the Hopi Tribal Council partnered with the Holocaust Art Restitution Project (HARP) to file suit against France’s board of auctions for refusing to stop the sale of sacred Hopi objects, having concluding that Native American tribes lack legal standing to bring a cultural claim in France. The partnership was at once unexpected and tactically sound. In this article, we review the background for the case and the procedural history

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Source: Sacred Hopi and Acoma objects are displayed at the Drouot auction house in Paris prior to auction, June 10, 2015. REUTERS/JACKY NAEGELEN

Sacred objects as displayed at the Drouot auction house prior to June 2015 auction. Source: Reuters/Jacky Naegelen.


The controversy concerns Hopi artifacts that are religious objects necessary for the use and the continuation of the Hopi religion by present day adherent. Known as kwaa tsi, and sometimes described as “katsina friends,” these artifacts are offered for sale by French auction houses, despite protests and lawsuits filed by the Hopi Tribe to enjoin the sales.

The katsina friends go through a ceremonial process of deification whereby they embody spiritual life. They then become a “Katsina” and serve as a messenger to the spiritual domain for rain and life blessings. Katsina friends are used during katsina religious ceremonies.These artifacts are considered sacred objects and objects of cultural patrimony and cannot be transferred, sold, conveyed or removed from the tribal land without permission of the Hopi Tribe. However, recently they have been included in at least six auctions in France between 2013 and 2015.

Every time kwaa tsi are offered for sale, the Hopi Tribe objects vehemently, yet their pleas remain disregarded. Therefore, the Tribe representatives have turned to administrative and legal mechanisms to attempt to enjoin the sales since 2013. The Hopi Tribal Council has filed suits in French civil courts on various occasions preceding the sales, including in April 2013, December 2013, and June 2014. Unfortunately, these judicial attempts to enjoin the sales have been unsuccessful. Furthermore, administrative petitions to the “Conseil des Ventes” (“CVV”), a French regulatory body tasked with overseeing auctions in France, have also failed. In its decisions, the CVV repeatedly held that the Hopi Tribe did not have the legal capacity to sue in France.

Article 27, United Nations Declaration on the Rights of Indigenous People (2007)

Article 27, United Nations Declaration on the Rights of Indigenous People (2007).

Internationally, the 2007 United Nations Declaration on the Rights of Indigenous People (UNDRIP) sets forth rights of indigenous people such as the right to be free from discrimination in the exercise of their rights. The current French laws have not yet been interpreted to allow an indigenous tribe or individual leader of a group to have a legal existence or standing to bring a cultural claim in French court.

In order to succeed in stopping the sales in France, the Hopi claimants have to first prove that they have standing to bring a cultural claim in a French court. The strategy of partnering with an non-government organization (NGO) to effectuate legal standing is not a new strategy. The Hopis previously partnered with Survival International France, an NGO that helps tribal people defend their land and protect their livelihood. In that instance, the court acknowledged standing but dismissed the claim on the grounds that Survival International could not legally represent the Hopis to sue for repatriation of the masks.

In both the previous 2014 case and in the instant case brought by the Ciric Law Firm on behalf of the Hopis and HARP to enjoin the sales of the Hopi artifacts, the CVV dismissed the cases on the basis that the Hopis lack standing. In fact, the CVV held that no Native American group qualifies for legal standing to bring a cultural claim in France. Moreover, the Board refused to consider evidence that legal title could not have vested in subsequent possessors of the masks. Article 1-5-1 of the Board’s Code of Ethics for Auction Houses stipulates that auction operators have a duty to investigate the provenance of objects sold. When faced with requests to apply Article 1-5-1 and require that that the provenance of the objects be considered, the Board refused, finding that the auction house acted in good faith.



Future attempts to sell Hopi artifacts at French auction houses will likely be faced with similar suits and requests to enjoin the sales. It seems unlikely that the CVV or the French civil courts will change their position without a change in legislation. As for a legislative solution, the CVV has the power to set forth proposals for legislative and regulatory changes. Recently, a strong faction of advocates for repatriation of Hopi artifacts has begun to lobby government officials. The simple solution is for France to recognize and accept Article 27 of UNDRIP, which requires the State to establish and implement a process to adjudicate the rights of indigenous peoples pertaining to their land, territories and resources. Only upon legal recognition of the Hopis can the French Board and French civil court begin to adjudicate the Hopis claims requesting injunction of future sales and repatriation of sacred artifacts.


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*About the Author: Lindsay Voirin is a patent attorney and current student at NYU Wagner School of Public Service, where she is working toward a Master in Public Administration. Her career interests include intellectual property, technology, international development and human rights law.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.

Summertime and the Art Buyin’ is Easy: Asking Questions about Art Transactions


Screen shot 2015-08-06 at 11.49.43 AMBy Daniel S. Kokhba, Esq.*

In the art market, a work of art is often carefully scrutinized and questioned by collectors and their agents concerning its style and substance. The art sale, however, may receive far less careful review. Given the prevalence of fraud, conflict of interest and lack of transparency in such transactions, one should adopt the habit of asking hard and direct questions before committing to a deal – particularly concerning price and associated fees.

While a buyer often intuitively knows to ask for the price of a work of art or service, the basis for the asking price, and a discount, the inquiry should not end there.

In the event that the  price of a work  is especially low relative to market, a buyer should ask the seller why. In some cases it may well be that the market commands a reduced price (e.g., unsold inventory, comparable sales). On the other hand, a buyer should be aware that  bargain basement prices often serve as red flags for lack of authority (or title) to sell, the possibility of  forgery or other fraud.  See Davis v. Carroll, 937 F.Supp.2d 390 (S.D.N.Y. 2013).

Screen shot 2015-08-06 at 11.52.19 AMA buyer should also consider and ask (i) who, aside from seller, stands to gain financially in connection with a sale and (ii) whether the sale price is being split with anyone else. The identity and financial interests of undisclosed third parties will help a buyer better understand all of the parties involved in the transaction . Fee splitting and/or sharing arrangements commonly inflate the price of a work of art.

A buyer should also ask about any costs closely or peripherally associated with the transaction.  Novice and sophisticated collectors alike often overlook and fail to consider storage, insurance, shipping, framing, appraisal, and other associated expenses. If the buyer intends to resell the work, brokerage fees and income tax may be added to the list of expenses. Such expenses will invariably add to the total cost of the transaction and accordingly are considerations that a buyer should be cognizant of in order to get a fuller picture of the transaction.

Awareness of these possible costs will lead to asking questions that will shed more light on, inter alia, the inner workings of the transaction, which are often not advertised at the time of sale. The answers will typically invite further inquiries, providing the buyer with pertinent information.. It happens far too often that referral fees, multiple party fees, and other foreseeable and associated costs and expenses are disclosed only after the deal has been made.  Dodging a shady deal rather than trying to get out of one after the fact  will avoid the possibility of dispute, litigation and further expenses.Taking on an assertive role as a buyer and conducting the appropriate level of independent research should be the approach taken in any transaction involving artwork.

*About the Author: Daniel S. Kokhba, Esq. is a Partner at Kantor, Davidoff, Mandelker, Twomey, Gallanty & Kesten P.C. and focuses his practice in the areas of art law and business law.  He may be reached at or 212-682-8383

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

UK Copyright Amendment Provokes Controversy in the Art and Design World

By Christopher Visentin*

Screen Shot 2015-07-16 at 9.59.46 AMThe British government has recently moved to repeal section 52 of the Copyright, Designs and Patents Act 1988 (the “CDPA”). Removing this section would increase the copyright duration for artistic designs—as opposed to traditional artistic works—from 25 years from the year the designs were first marketed, to the more common term of life of the author plus 70 years. In a report published February 18, 2015, the British government detailed provisions for implementing the change, set to take place April 6, 2020, and also published responses to comments made by those affected by the law. It seems, however, that the new arrangement has stirred up some controversy in the process.

As in the United States, the United Kingdom has long grappled with what copyright protection—if any—should be available for functional, yet arguably artistic, designs (see Brandir International, Inc. v. Cascade Pacific Lumber Co. for a famous U.S. treatment of a similar issue, involving the design of ribbon bike racks). Such artistic designs can be hard to define, but certain iconic mass-produced pieces, such as Arne Jacobsen’s “Egg Chair,” or Robin Day’s “Polypropylene Chair,” serve as examples of the types of works implicated in this change.

Egg (1958)

Arne Jacobsen, “Egg Chair” (1958).

In such cases, there is a tension between rewarding an individual the full copyright protection for his or her work, and the public’s desire to access functional designs and articles. S. 52 of the CDPA offered a solution in the U.K. by limiting copyright protection for artistic designs to 25 years.

  1. 52 effectively carved out an exception for artistic designs. Instead of the standard ‘life of the author plus 70 years’ term of copyright protection, mass-produced artistic designs would receive a shorter term of protection. More specifically, designs “derived from…artistic work[s]” that have been made by “industrial process” and subsequently marketed to the public would enjoy protection of only 25 years from the date the design was first manufactured.
  2. 52 thus separates designs derived from artistic works from both pure ‘artistic works’ and pure utilitarian designs. Under this scheme, the CDPA seems to conceptualize the work in question as an intermediate work between utilitarian design and art, deserving of likewise intermediate copyright protection.

Admittedly, some might find that the fine lines s. 52 draws over-simplify the breadth of creation in the art world. Take, for example, works like Ingo Maurer’s “Bulb,” a playful design of a lightbulb within a lightbulb, created in 1966 and part of the Museum of Modern Art’s collection. With s. 52 in place, Maurer’s design would perhaps only enjoy 25 years of copyright protection because of its functional design, and because it has been industrially manufactured and marketed. The functional elements would thus render the piece no longer protectable by copyright. Conversely, one might argue that Maurer should enjoy the full copyright term of his life plus 70 years for his creative expression. This distinction between types of artistic expression might seem unfair to some in the art world and beyond.

One argument against the repeal is that a limited copyright term would encourage artist-designers to create new designs, while also ensuring that the more practical, utilitarian benefits conferred by the designs would not be kept from the broader public for too long. After 25 years, others could lawfully create copies or other articles based on the previously protected design. Furthermore, the economic advantage that mass-produced artistic designs have over other artistic works may be great enough to justify limiting the benefits of an exclusive right of ownership to only 25 years. Presumably, the limited copyright period would balance the public interest in new, improved designs with the designers’ interest in profiting off of their mass-produced work.

Now, however, this exception for artistic design is set to disappear come April 6, 2020. With the repeal of s. 52, designers of artistic works would enjoy the same length of copyright protection as other artists, writers, and musicians. The British government moved to repeal s. 52, claiming  “to update and clarify UK legislation in line with EU law.” The change is an effort to adhere to an interpretation of the EU Design Directive (71/98/EC), promulgated by the European Court of Justice. By repealing s. 52, the British government’s protection will no longer provide a shorter term of protection than other member states for industrially manufactured artistic designs.

Extending the duration of copyright from 25 years to 70 years further distinguishes artistic designs from those designs that are not “artistic works,” and thus can only enjoy protection according to the UK Registered Designs Act 1949 (the “RDA”). Under s. 52, artistic designs that were industrially produced only enjoyed the same amount of protection as other designs governed by the RDA, which had separate registration requirements.

The extension of copyright protection provides additional incentive to artistic designers to create and mass produce new designs. Baroness Neville-Rolfe, Minister for Intellectual Property, says that the repeal is “an important step, to bring about the fair treatment of all types of artistic works and to reward those that innovate and inspire.” She further states, “[t]he innovative work of designers will have the appropriate copyright protection, whilst ensuring that UK-based businesses can adapt and thrive.”

Others affected by the change, by some reports, are less than enthusiastic. Repealing s. 52 would require manufacturing companies to pay licensing fees to rights holders long after the previous 25-year period in order to produce replicas. The change would also require permission and possible licensing fees to reproduce the images of designs in books and other publications, as well as restrict what new designers could do if they wanted to build off of an existing, protected design.

One of the most controversial aspects of the reform is that it will have retroactive effect. This means that some artistic designs whose 25-year copyright protection term has expired will once again be covered under the more expansive 70-year term, assuming it did not already expire. Those that have lawfully reproduced or otherwise used designs after the old 25-year term of copyright expired may not have to pay for their prior reproductions, but they will have to pay licensing fees for future use.

This retroactive effect may prove to be a particular burden on museums. Like many others, museums that have displayed and sold replicas of artistic designs whose 25 years of copyright have since expired may now have to pay licensing fees to continue to do so. These extra fees would introduce much higher costs to museums and could end up being entirely prohibitive.The impact of the statement for the repeal of s. 52 in the government report includes one museum’s estimate of a loss over £850,000 a year.

Beyond the licensing costs, however, museums and publishers will have to survey their collections, including an inventory of books and photographs published therein to ensure that the photographs and publications do not contain any newly protected copyright works. Even images depicting a protected work may end up infringing on the newly revived copyright. Needless to say, the cost of reassessing collections and catalogues will add to the burden.

Some argue that another side effect of the change may occur within the design industry itself. As Ivan Macquisten of the Antique Gazette notes, “some of the leading intellectual property specialists in the country have argued that [repealing s. 52] will have a chilling effect on new design, because young designers must ensure that they do not fall foul of the law when inspired by earlier designers.” Inspired designers seeking to build off of prior work will either need to secure permission from the original designer, or take care that any work that they do will not infringe on the extended copyright of the prior work.

Ultimately, there is a chance that this bolstered protection may slow down the output of new designs, as well as threaten the manufacture of current designs that are adaptations (or ‘derivative works’) of works that will regain or have extended copyright. Of course, the counter argument would be that any chilling effect the extended copyright may have might be mitigated by the increased protection due to the same designers when they create an original work.

Despite protests and appeals to lawmakers by members of the intellectual property community—including efforts by Professor Lionel Bently of Cambridge, joined by faculty members of the University of Oxford, King’s College, London, and Edinburgh University, to name a few—the House of Lords has approved the reform. Originally, the government sought a three-year transition period, but due to feedback from commenters, the three years has been increased to the current five-year period—ending April of 2020—in order to give those affected by the change more time to prepare. It seems that designers, museums, publishers, and onlookers alike will have to sit down and wait until then to determine the true outcome of the change.

Robin Day, “Polypropylene Chair.”

Robin Day’s “Polypropylene Chair” (1963).


About the Author: Christopher Visentin is a rising third-year law student at Boston University, where he concentrates his studies on intellectual property law, art law, and law and literature. He is also pursuing a master’s degree in English literature at Boston University.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.

I am not a Fan: Museums Acting and Reacting to Public Opinion

By Irina Tarsis, Esq.*

Magritte, "C’est ci ne pas un Pipe."

Magritte, “C’est ci ne pas un Pipe” (1929). On public view at LACMA (78.7).

Self-censorship by museums is a dangerous trend. In the July/August issue of The Art Newspaper, Maurice Davies, of the Museum Consultancy and senior research fellow in the Department of Management at King’s College London, explores several instances in recent history where museums worldwide engaged in self-censorship to the detriment of the public. On this humid summer day, we ask, shouldn’t museums leave self-censorship to artists and trigger-happy public? Museums focus so much of their attention on self-censorship, yet leave other areas of museum administration exposed. Self-assessment should occur across all aspects of museum administration, such as encouraging provenance research, decreasing disparity in staff compensation and developing best practices for borrowing and lending art works. Otherwise it seems that museums tend to fight tooth and nail over keeping contested art works in their collections, in efforts that are more costly than brainstorming creative solutions to attract visitors to the exhibition halls or address historical and social injustices.

Screen Shot 2015-07-10 at 2.25.02 PMWhereas Davies’ article focuses on self-censorship due to security fears, and controversial material that includes nudity, racial, or political representations, the recent public outcry against “Kimono Wednesdays” in front of the 1876 Claude Monet’s “La Japonaise/Camille Monet in Japanese Costume” at the Museum of Fine Art collection in Boston is but another instance where public outrage is misplaced as more important issues remain overlooked. What is truly shocking is that there are plenty of outrageous art-related displays that deserve the flagellation of the public. Somehow these manifestations do not encounter the same adamant resistance, leave little impact on museums, yet tend to be more offensive.

“In an episode that speaks volumes about cultural institutions, ethnic sensitivity, and the power of protest in the digital age, the Museum of Fine Arts is hastily pulling back on an event that protesters labeled a latter-day form of racist minstrelsy.” [From the editor: “Minstrelsy – a 19th century form of entertainment developed in the US that included musical, comic and variety acts performed by either white people in blackface or by black people.] Thus begins just one of dozens of articles, this by The Boston Globe staffer, Malcolm Gay, on the topic of the failed experiment at interactivity at the Boston Museum of Fine Arts (the “MFA”) involving a kimono dress-up in front of a Monet portrait.

The irony of the situation of course is that this very same Monet painting recently returned from an exhibit in Japan, entitled “Looking East: Western Artists and the Allure of Japan” where “historically accurate reproduction kimonos were made for visitors to try on.” Yet, a similar program at the progressive Massachusetts museum faced an exceedingly critical public reaction from concerned visitors and activists. The MFA chose to diffuse the controversy by canceling the dress-up element of the display instead of using this opportunity to tackle the misconceptions surrounding the idea of cultural appropriation.

Monet "La Japonaise (Camille Monet in Japanese Costume)" (1876). On View a MFA (56.147).

Monet “La Japonaise (Camille Monet in Japanese Costume)” (1876). On view at MFA (56.147).

The decision to scrap the benign kimono project is disturbing because museums are meant to be educational forums where different manifestations of creativity and creative types inform the public about the past and safeguard it for the future. It is universally accepted that artists frequently explore and borrow ideas and iconography from different cultures and other artists. Just as Eastern Art experimented with “Western” conventions of painting landscapes to show perspective and integrated Western dress into portraiture, artifacts of Asian, African, South American art and culture, including fans, kimonos, masks, patterns, ceramics, etc. were and continue being frequently incorporated themes in Western artworks, with varying success.

What was the intent of the MFA in allowing visitors to try a kimono? To offend? To discriminate? Unlikely. The Museum is open for free on Wednesday nights to be accommodating and inclusive. Making kimono available on Wednesday nights for photo-ops in front of a festive 19th century Impressionist painting was anything but racist. By allowing their visitors to don a replica kimono, the MFA probably wanted to capitalize on social media use in museums. Even the White House, lifted its ban of taking photos on the tours, arguably recognizing that the technology and the inexplicable need to snap pictures with one’s phone at every turn, on every tour and in every location, will happen whether they are banned or not.

The lesson learned from the MFA bungle, is perhaps what is fashionable is not always classy. Davies concludes his article with a suggestion that “museums could push at the edges of the law” and they should help address difficult contemporary events and social divides rather than shy away from this role. In instances such as the “Kimono Wednesdays”, we counsel museums to be more discriminating in handling public reactions. On the house.

Select Sources:

About the Author: This editorial is by Irina Tarsis, art lawyer and Founder and Director of Center for Art Law.

Book Review: “Visual Arts and the Law: A Handbook for Professionals” (2013)

By Irina Tarsis, Esq.*

“I want to do something splendid…

I think I shall write books.”

Louisa May Alcott

Historically, introducing art law to lawyers and artists, not to mention law and non-law students, used to be a challenge. The majority of artists and lawyers were perplexed by the idea of ‘art law,’ now an accepted practice area that touches upon private as well as public law, national and international art business, and art making. Therefore, a handful of attorneys have grappled with the task of composing textbooks, which would serve as suitable introduction to the discipline.

Screen Shot 2015-07-10 at 5.28.23 PMThe 2013 offering from the former chair of the Entertainment, Arts & Sports Law Section of the New York State Bar Association, Judith B. Prowda, who is a Senior Lecturer at Sotheby’s Institute of Art teaching Art Law and Ethics, is an excellent teaching tool to present information about artists’ rights and art market relationships in a clear and engaging tone. Her “Visual Arts and the Law: A Handbook for Professionals” (the “Handbook”) is a comprehensible if not comprehensive primer for the uninitiated. It is part of the Handbooks in International Art Business series. Like an art history work, the Handbook is peppered with the familiar names of Calder, Monet, Schiele, and Serra. Like a law textbook, it is devoid of art reproductions. The only visual decoration that the publisher allowed in this text are the three symbolic images on the cover — Portrait of a Lawyer (1866) by Paul Cezanne, Tilted Arc (1981) by Richard Serra, and Egon Schiele’s Portrait of Wally (1912). The lack of illustrations is regrettable because an art law textbook, unlike other legal publications, stands to benefit from having reproductions of the works that have shaped and given rise to the discipline. The images used for the cover merely scratch the surface of the wealth of imagery that imbues the art law discipline. Luckily, the attorney who authored this Handbook succeeded in penning a clear bird’s-eye view of the discipline.

In the Handbook, Prowda synthesizes information about the basics of copyright and focuses on issues affecting visual arts, such as moral rights, commissions, auctions, expert opinions and title disputes. Consequently, this publication is best suited for artists, students in art and business management, appraisers and gallery employees as well as members of the general public that wish to learn about different aspects of art market as it is affected by the law. The target audience probably excludes those training for legal practice and the active members of the legal bar who already represent artists and galleries as their clients.

As a self-imposed objective, Prowda wished to “give her reader some “context and insights into the most salient legal issues of the day affecting art.” Therefore she organized the materials in the order of what happens with visual artworks from creation to sale in the primary market and again in secondary market. The structure of each section offers historical foundation and recent manifestations of specific legal issues associated with appraisal, authentication, theft, and auctions.

The Handbook is divided into three sections: 1) Artists’ Rights; 2) Artists’ Relationships; and 3) Commercial Aspects of Art, with twelve chapters unevenly split between these topics.  Contemplated as “a tour d’horizon of the complex questions raised in the field of art law,” with some attention given to the law in different countries — U.K., France, Germany as well as the U.S., in her preface Prowda acknowledges that she is covering the material through a U.S.-trained lawyer’s lens as well as looking at limited number of topics. Prowda revisits many classic legal examples: what is art according to Brancusi v. United States (U.S. 1928), and what is copyrightable per Burrow-Giles Lithographic Co. v. Sarony (U.S. 1884). The narrative is easy to follow and it flows well from one example and concept to another. The Handbook tackles the big picture and glosses over nuances and gray areas that emerge in numerous related transactions and disputes.   

First section explores Artist’s Rights, namely freedom of expression, including historical overview of obscenity law, right of privacy and publicity, principles of copyright, including its duration, requirements, exclusive rights, infringements, defenses and spends some time discussing fair use exception, including a brief mention of the recent 2nd Circuit fair use case Cariou v. Prince. Here, Prowda spends considerable time exploring moral rights in Europe, the U.K. and the U.S., dating back to France in the 19th century and moving forward to the 1990 enactment of the Visual Artists Rights Act in the United States, and the case law that emerged subsequently. Repeatedly, the Handbook follows a formula of introducing a concept and explaining its origins, past applications and the current state of applicability. Thus, readers who are interested in limited moral rights in the United States or the variety of fair use cases decided by courts in different jurisdictions would need to go beyond the distilled information offered in the Handbook to learn more about the VARA cases, such as Mass MOCA v. Buchel or the different circuits’ applications of the fair use exception to copyright infringement claims.

Second section of the Handbook is dedicated to the artist’s relationships with dealers, collectors and art commissioners. Here, Prowda focuses on fiduciary duties owed to artists and their heirs; she explains relevant sections of the New York Arts and Cultural Affairs Law that deals with consignment of art for sale. Rarity of written contracts and pitfalls of oral contracts are featured prominently in discussion of disputes related to Georgia O’Keeffe or the Estate of Jean-Michel Basquiat. This section certainly would have benefited from offering guidelines for working with attorneys and advisors as well as grant-giving agencies such as the New York Department for Cultural Affairs, which administer public commission. As is, the section is brief and is best summarized as following: due to fact specific and unique relationships between each artist and her dealer or the art commissioner, each negotiation and partnership needs to be carefully reviewed and monitored throughout the relationship.

Third section moves away from the creative process to explore the commercial side of art disposition through the secondary market, collection development, art theft and issues of authenticity. It explores questions surrounding legal title and includes a discussion of good faith purchases of art works. Author underscores the importance of clear and corroborated provenance, duties of different parties involved in art transactions, obligations and rights of creditors, an array of warranties that may accompany change of ownership and technical defenses to combining ownership of art with legal title.

In her treatment of auction houses, Prowda lists various services and duties auctions have to their clients and then she focuses on the seminal 1986 Cristallina v. Christie’s decision that “resulted in significant changes in auction laws and redefined auction practice in New York.” In that case, the auction house was accused of fraudulent misrepresentation in violation of its fiduciary duty to the consigner by failing to assess market conditions. The third section is also used as a vehicle to discuss the antitrust price-fixing scandal that embroiled both leading auction houses in the early 1990s. Prowda briefly introduces the main players and the circumstances of the Sherman Act violations.

The second-to-last chapter of this section explores briefly the subject of expert opinions as they pertain to art appraisal and authentication. In light of the recent legal actions brought against art experts, this section is of great importance to those engaged in creating catalogue raisonnés and labeling art as fakes or forgeries. Prowda explains fiduciary duties owed by experts and explains risks and legal liabilities that may attach to actions of authenticators and appraiser. This section includes discussion of the main legal cases involving opinions on art and its value, including but not limited to the 1929 Hahn v. Duveen decision, as well as Ravenna v. Christie’s (2001) and Double Denied, an antitrust case against the Andy Warhol Foundation decided in 2009.

Finally, the Handbook tackles the temporally, geographically and emotionally-complicated questions regarding title problems related to stolen art, with emphasis on war plunder and Nazi-era looted art. Given the vast body of cases and alternative dispute resolution mechanisms dedicated to solving issues related to Nazi-era looted art, the treatment of this subject in the Handbook merely scratches the surface of the questions and outcomes related to art restitution claims. Prowda chooses to focus on three cases as main illustrations of related issues, specifically U.S. v. Portrait of Wally which was ultimately settled in 2010 for $19 million, Guggenheim Foundation v. Lubel (NY, 1991) and Bakalar v. Vavra (2nd Cir. 2010). However, other important trends affecting the art displaced during the Nazi-period are excluded. For example, the late 1990s and early 2000s case sequence involving American art museums proactively seeking to quiet title through declaratory judgments aimed at keeping possession of once-looted artworks is omitted entirely, as is the discussion of the numerous foreign advisory commissions that review restitution claims brought against public institutions by heirs in France, England, Germany, Austria and so on.

The Handbook ends with an admission that in the 21st century, there are ongoing and profound changes in the production and consumption of art and thus the legal system is continuously tested. The author admits she wanted her readers “to situate themselves within [law, art and commerce] discourse.” She certainly succeeds in giving a long view on perennial important topics even as case law and legislation continue offering new examples and challenges.

Art law is a growing and developing practice area and by definition textbooks and handbooks tend to become outdated as soon as they are submitted to print because of the subsequent developments. This Handbook is no exception. While Prowda talks about Nazi-era looted art, as well as authentication issues such as the threat of litigation that affect authentication boards and commissions, there is understandably no reference to the Gurlitt art trove which was made public in 2013 nor the infamous demise of the Knoedler Gallery in 2011, formerly the oldest art gallery in the United States that was found out as selling forgeries. The first of almost a dozen claims for breach of warranty and negligent misrepresentation against the gallery, its owners and staff were filed as early as 2011; however, the reverberating effect of the downfall was not fully felt until much later. Other materials missing from the Handbook include laws governing the antiquities trade, and questions dealing with import/export of art containing ivory and other problematic materials.

The Handbook would have been more authoritative and easy to use for the legal community if the references and citations were not relegated to endnotes at the end of the volume but appeared at the bottom of the page as footnotes or at least following each chapter. Nevertheless, the Handbook intends to situate its users or reader within various art law related discourse and it accomplishes that task very well. Whether the book inspires students to become art lawyers and thus dive into the specific issues more deeply remains to be seen.

Prowda supplements her writing with a brief bibliography which reads as a “Who is who in Art and Law.” All the usual suspects are represented: Leonard D. DuBoff, Patty Gerstenblith, John Henry Merryman, David Nimmer, Pierre Leval, Judith Bresler, as well as Michael Bazyler, Lawrence M. Kaye and Ronald D. Spencer. Again, just like the Handbook itself, the bibliography offers a sound but basic set of tools. For non-lawyers, the glossary of legal terms is a non-exhaustive list of terms that may or may not need explanation. It includes Latin phrases (e.g., caveat emptor and lex loci), substantive terms (e.g., subpoena and contract), relationships (e.g., fiduciary and agency), causes of action and rights. The concept of due diligence is explained here but good faith purchase is not.

The writer of this review would argue that the subtitle “ Handbook for Professionals” is a confusing description of the text contained within. Perhaps it is the formula imposed by the publisher, however, unlike the guide for collectors, investors, dealers and artists co-authored by Judith Bresler and Ralph E. Lerner, a two-volume $200+ opus akin to Nimmer on Copyright, or Law, Ethics and the Visual Arts volume by John Henry Merryman et all, Prowda’s textbook is a general introduction/a primer for newcomers. It does not bore those lacking the technical training or stamina to work through legal analysis and exhaustively shepardized citations, rather it is a carefully composed teaching tool that ushers its reader at a comfortable pace through fascinating and varied legal history. Professionals would need to dig deeper into each subject; however, given the paucity of affordable basic textbooks for students learning about art law, this volume is an excellent option for any art law professor seeking to introduce countless areas for study and further exploration. Perhaps it should have been titled “A Handbook for Future Professionals.” The Handbook may be coupled with select case decisions and legislative material for an effective introduction to the fascinating field that concerns art, art history and law.

Prowda’s Handbook is a tool designed to further adoption and acceptance of art law, and given its modest price in comparison with other art law publications, it is a worthy addition to any mentor or art law instructor’s reference library. It is a solid stepping-stone to further popularizing the art law discipline.

Cited Cases:

  • Bakalar v. Vavra, 619 F.3d 136 (2d Cir. 2010).
  • Brancusi v. United States, 54 Treas. Dec. 428 (1928).
  • Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S. Ct. 279, 28 L. Ed. 349 (1884).
  • Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).
  • Cristallina v. Christie’s, 117 A.D.2d 284, 502 N.Y.S.2d 165 (App. Div. 1986).
  • Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623, 569 N.E.2d 426 (1991).
  • Hahn v. Duveen, 234 N.Y.S. 185, 133 Misc. 871, 133 Misc. Rep. 871 (1929).
  • Lagrange et al v. Knoedler Gallery, LLC et al, 1:2011cv08757 (S.D.N.Y. Dec. 1, 2011).
  • MA MUSEUM, CONTEMP. ART FOUN. v. Buchel, 593 F.3d 38 (1st Cir. 2010).
  • Ravenna v. Christie’s Inc., 289 A.D.2d 15, 734 N.Y.S.2d 21 (App. Div. 2001).
  • Serra v. US General Services Admin., 847 F.2d 1045 (2d Cir. 1988).
  • Simon-Whelan v. Andy Warhol Found. for the Visual Arts, Inc., 2009 W.L. 1457177 (2009).
  • US v. Portrait of Wally, 105 F. Supp. 2d 288 (S.D.N.Y. 2000).

About the Author: Irina Tarsis, Esq., specializes in art law, provenance research and cultural heritage law. She may be reached at

Disclaimer: This article presents general information and is not intended as legal advice.

Reprinted with permission from: Entertainment, Arts and Sports Law Journal, Spring 2015, Vol. 26, No. 1, published by the New York State Bar Association, Albany, NY.

Let’s do it again but better? Pros and Cons of Renewing the US-Italy Cultural Property MOU

by Tess Bonoli*

CPAC collage

Since January 19, 2001, the Memorandum of Understanding (MOU) between the United States and Italy has offered an added layer of protection to Italy’s cultural heritage. It was designed to regulate imports of  pre-Classical, Classical, and Imperial Roman period cultural artifacts in the United States. The MOU is in response to a request from the Italian government, pursuant to Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (the Convention). The Convention’s implementing legislation, the Convention on Cultural Property Implementation Act (CPIA), came into effect in 1983. Article 9 of the Convention empowers any State Party whose cultural patrimony is in jeopardy to call upon other State Parties who are affected to assist with curbing the illicit traffic. These bilateral agreements last five years, and may be renewed an indefinite number of times, following a petition and a review of the bilateral commitments. On February 26, 2015, the U.S. State Department announced that Italy had requested a third renewal of the MOU; this request is currently under review – with competing interests advocating for and against another term.

“Italy is blessed with a rich cultural legacy and therefore cursed to suffer the pillaging of important cultural artifacts,” stated John R. Phillips, American ambassador to Italy. The current MOU requires that the U.S. and Italy both contribute their resources to work toward the shared goal of preserving invaluable objects of cultural and historical importance. The U.S. is responsible for restricting importation of materials on the Designated List (including categories of stone, metal, ceramic and glass artifacts, and wall paintings); upon the recovery of such materials, returning them to Italy; and providing public notice of the items on the Designated List. In turn, the Italian government is obligated to increase scientific research; guard archaeological sites that are known to be at risk from looters; develop Italian tax incentives for private support of legitimate excavations; institute more severe penalties for looters; regulate the use of metal detectors; provide ongoing training for the Italy’s national military police, the Caribinieri, etc. In 2010, Italy also agreed to facilitate U.S. access to its art and artifacts through long-term loans, permitting scientific analysis of those materials, by encouraging American museums and universities to participate in Italian excavations, and by promoting exchange and study abroad programs. Both countries further agreed to launch joint efforts to strengthen cooperation from other Mediterranean nations, publicize the terms of the MOU, and examine more ways to facilitate the legitimate export of items sold within Italy.

Since its inception, the MOU has guided the successful recovery and return of statues, sculptures, architectural fragments, weapons and armor, vessels, coins, wall paintings, and inscriptions. In May 2015, U.S. Ambassador Phillips generalized that the joint efforts of American agents and Italian investigators had “borne fruit in returning some important artifacts to their rightful home in Italy.”

Noteworthy returns that occurred in 2014 and 2015 have included objects recovered from American museums, auction houses, galleries, private collections and universities. For example, Giovanni Battista Tiepolo’s painting, “The Holy Trinity Appearing to Saint Clement,” was stolen from a private home in Turin in 1982 and discovered in a Christie’s online catalogue in January 2014. An Etruscan bronze statuette of Hercules, stolen from a museum in Pesaro in 1964 was recovered from a New York City gallery in October 2014. Pompeian frescos and a dog-shaped askos, looted from Pompeii in 1957, were recovered from a San Diego warehouse in February 2015. An Etruscan black figure vase with dolphins was seized from the Toledo Museum of Art, after it was revealed that antiquities dealer Giacomo Medici presented false provenance documentation to the museum. The Minneapolis Institute of Arts acquired an Attic red-figure vase from Medici, which was recovered after U.S. authorities learned of its falsified provenance. Three rare 17th century books, which were stolen from the National Historical Library of Agriculture in Rome and distributed among a private collector and Johns Hopkins University, were seized and returned to Italy. A second century sarcophagus lid depicting a sleeping Ariadne was recovered from a New York gallery and returned in 2015. Interpol, the International Criminal Police Organization,“estimates that the stolen art and cultural property market produces more than $9 billion in profits each year, and it’s the fourth most profitable black market trade after human trafficking, narcotics and weapons.”

Despite the undeniable success achieved by the MOU’s joint efforts, another five-year renewal is not guaranteed. On April 8, 2015, the U.S. State Department Cultural Property Advisory Committee (CPAC) met in open session (full list of attendees and CPAC members is available here) to discuss the renewal of the Italian MOU, with Patty Gerstenblith presiding. Peter Tompa, one of the presenters before the CPAC, speaking on behalf of the International Association of Professional Numismatists and the Professional Numismatists Guild argued against the renewal; he explained “import restrictions were never meant to be permanent. Rather, they were aimed at cutting market demand to allow time for a source country to get its own house in order.” Moreover, others doubted the practicality of returning such artifacts to Italy. Sue McGovern-Huffman, of the Association of Dealers and Collectors of Ancient and Ethnographic Art, asserted that “restrictions have been detrimental to collecting.  Over time, this will negatively impact museums that benefit from donations from collectors.  Import restrictions disadvantage American collectors versus those in the EU.” While McGovern-Huffman fully supports the MOU’s goal of preventing the illegal removal of cultural objects from Italy, addressing the CPAC she emphasized the vital role that U.S. art collectors and museums have played in the preservation and study of artifacts. She also cautioned that the current MOU severely inhibits the ability of private collectors in the U.S. to aid in such preservation and suggests that less restrictive means can be employed to achieve the goal of protecting Italian artifacts, without leaving U.S. collectors and museums at a disadvantage. Others echoes McGovern-Huffman’s concerns, and warned that the MOU’s rigid restrictions would “destroy the historically close relationship between advanced collectors and museums and inevitably impact donations of coins to numismatic institutions…likely to result in a drastic reduction in numismatic scholarship.” The Designated List, as McGovern-Huffman noted, includes common archaeological objects that “possess no special or rare features” and, because such items are so prevalent, they “cannot be realistically deemed of specific cultural, historical or scientific importance to the republic of Italy.”

In addition, concerns have been raised about whether the Italian government has been fulfilling its responsibilities under the MOU. According to Tompa, “in prior MOUs, Italy pledged to consider ways to make it easier to secure export certificates for archaeological objects legitimately sold within Italy itself. Unfortunately, nothing has been done to keep this promise, and, if anything it has become more difficult to procure them.” Attorney, Stephen Knerly, representing the Association of Art Museum Directors, stated “Italy has not lived up to its promises in the MOU to provide long-term loans. The only museums to get long-term loans are those that receive them as a quid pro quo for repatriation of artifacts.” Knerly emphasized that, even when U.S. museums do receive artifact loans, they are personally responsible for the expensive courier and insurance fees, as “Italy will not accept US State Department guarantees of indemnity and requires American museums to purchase insurance from Italian companies.”

Despite these concerns, supporters of the renewal, including Ann Stock, the U.S. Assistant Secretary for Educational and Cultural Affairs, explained that the MOU was necessary to combat an ongoing struggle and that “[t]he cultural heritage of Italy continues to be in jeopardy from pillage of archaeological material.” Professors Jane DeRose Evans, Alex Barker and Carla Antonaccio, all give the MOU unqualified support. Barker, whose university collaborates with programs at Rome’s Capitoline Museum, insisted that all legal requirements on Italy’s behalf have been met for a renewal of the MOU. Antonaccio explained that Italy was doing the best it can, despite a severe budgetary crisis. Finally, addressing the arguments raised by the numismatic collectors, Evans indicate that “locals and collectors and dealers should be educated to discourage looting. Even common coins have value.”

As the U.S. and Italy plan to decide on the fate of the renewal of the MOU by January 2016, these two nations will need to balance their individual concerns, regarding the conservation of their resources and their own access to the artifacts, with the overarching need to find the most effective means to facilitate the preservation of cultural objects and dissemination of knowledge. The U.S. and Italy may find that their solution is to amend the MOU prior to renewing it, as the parties did with first renewal in 2006 and the second renewal in 2011. Reducing import restrictions on coins, mandating a certain volume of annual artifact loans to U.S. museums and educational institutions, and removing particularly prevalent, nondescript items from the Designated List are all amendments that would quell U.S. concerns while continuing to aid the Italian government in protecting its cultural objects.

Since the adoption of the CPIA 32 years ago, 15 nations have reached MOUs with the United States, including Belize, Bolivia, Bulgaria, Cambodia, China, Colombia, Cyprus, El Salvador, Greece, Guatemala, Honduras, Italy, Mali, Nicaragua, and Peru. Consequently, collectors of antiquities in the U.S. have felt their opportunities shrinking as protections increase and restrictions mount; however, these MOUs has proven themselves to be a meaningful mechanism for safeguarding the world’s cultural patrimony.

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About the Author: Tess Bonoli is a rising third-year law student at Brooklyn Law School. She received a B.A. in Classics, Latin, and Italian from Tufts University. She may be reached at

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice readers are not meant to act or rely on the information in this article without attorney consultation.

Hold your Horses: Art Authenticators Not Protected Yet

By Irina Tarsis, Esq.*

Screen Shot 2015-06-01 at 3.01.42 PMOn June 15, 2015, New York State Senate passed a revised version of the Bill S01229A intended to amend the New York Arts and Cultural Affairs Law  by adding a provision intended to encourage art historians to offer their opinions concerning authenticity, attribution and authorship of works of fine art.

The proposed amendment is intended to protect art authenticators in the visual arts community from the risk of civil action suits. Why is this group in need of special protection? It is because the risk is real: those who opine on authenticity of artworks are increasingly threatened with legal action by the outraged/indignant collectors whose dreams of owning (and selling a masterwork) are dashed by the professional and expert opinions of authenticators.

Screen shot 2015-07-01 at 10.19.32 AMWe and others have reported on the plight of art authentication committees previously and together we are waiting to see our Google Alerts announce the passage of the New York State proposed law that would grant protection to the authenticators. This Bill has been in the works for years, a more robust version having been introduced without success back in 2013. Despite all the anticipation, as of July 1, 2015 the law has not passed yet, though some headlines have been suggesting or hinting otherwise. See for example “Art Authenticators Harassed by Lawsuits and Death Threats Get New Legal Protection” and “New York Senate Passes Bill to Protect Art Authenticators.”

Having some version of the Bill pass the New York Senate is a promising first step, but the battle is far from over. The New York Assembly has to vote in favor of the Bill as well. As of June 26, 2015, the first half of the 2015-2016 Session of the New York State Legislature is in recess. It is unclear at this time why the amendment was not brought up for a vote in the Assembly between the 15th of June and the 26th of June last month. However, unless the Speaker of the New York State Assembly, Carl E. Heastie, calls for a special session, the New York Assembly members will not return to vote on any of the pending bills until sometime in 2016. While the Assembly version of the Bill, A01018A, will not need to be reintroduced at that time (the Bill number remains unchanged for the entire two-year cycle), the Bill sponsors will have to bring it for a vote. If and when the Bill passes both houses, it will be presented to the Governor, Andrew Mark Cuomo, to either sign or reject. In the case of latter, sponsors of the Bill would need to go through yet another round of edits, introductions, lobbying, etc., etc.

The earliest the current Bill could be enacted in New York, if it is approved in the 2015-2016 Session and promptly endorsed by the Governor, is “the sixtieth day after it shall have become a law.” Then and only then, will “all [good faith] opinions as to the authenticity, attribution or authorship of a work of fine art provided to someone other than the authenticator” will be afforded protections “to ensure that only valid, verifiable claims against authenticators are allowed to proceed in civil court.” (See the full text of the proposed bill for details.)

Indeed, the law is anticipated to have an extraterritorial reach for art authenticators. For example, individuals outside of New York State would be able to contract for New York State law to govern any disputes arising from the agreement to review authenticity of an artwork. However, for now, and until January 2016, there is no change in circumstances and art authenticators remain exposed to litigation and to the ire of art holders seeking affirmation that they struck gold and not pyrite.

* * *

The full text of the proposed bill is available here. Following are some of the sections from the Bill (with our editorial underlining) and excerpts from the Legislative Memo justifying the passage of the law:

Act to Amend New York Arts & Cultural Affairs Law:




In general, artwork is authenticated by a trained person through documentation, stylistic inquiry, and/or scientific verification. No one method is perfect as oftentimes authenticity is difficult to determine. While each authentication method has its own drawbacks, the role of authenticators as drivers of the art market cannot be overstated. Art authenticators reduce the risk of counterfeits and imitations flooding the art market that could potentially devalue the work of millions of artists.

In recent years, the work of authenticators has come under pressure from meritless lawsuits against those who render opinions in good faith. Such defense of expensive and frivolous lawsuits have left many in the industry reluctant to lend their expertise in authenticating art works.

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About the Author: This editorial is by Irina Tarsis, art lawyer and Founder and Director of Center for Art Law.

The Eaton Collection: Off the Block at Rago

By Rebecca Krishnan-Ayer*Screen Shot 2015-06-10 at 12.26.01 AM

The Contested Sale

The New Jersey-based auction house Rago Arts and Auction Center (est. 1988) stirred controversy with the April 2015 projected sale of 450 works of art and artifacts from the Japanese-American internment camps established during World War II. In the wake of the New York Times article announcing the auction, activists and community leaders alike banded together to ignite a social media campaign against the auction house, whose annual sales total approximately $30 million. Rago initially stood behind their decision to proceed with the sale, citing a lack of alternate options available to the client for relinquishing the items. As the New York Times reported, “A spokeswoman for Rago wrote in an email that the unnamed auction consignor, who knew the Eaton family, is ‘not in a financial position’ to donate the material to institutions and ‘did not feel qualified to choose one institution over another.’ The consignor has described the protests as a ‘social media attack’ meant to ‘bully us into compliance with their demands.’”

Meanwhile, protest groups established a Facebook page, “Japanese American History: NOT for Sale,” assembling over 6,700 followers. Critics also launched a petition, lambasting “the betrayal of those imprisoned people who thought their gifts would be used to educate, not to be sold to the highest bidder in a national auction, pitting families against museums against private collectors.” Among those issuing a rallying call for action was Japanese American actor George Takei, who helped catapult the controversy to the forefront of Japanese American cultural groups’ and foundations’ agendas–he himself was interned in one of these camps at the age of five. Eric L. Muller, Dan K. Moore Distinguished Professor in Jurisprudence and Ethics at University of North Carolina School of Law, assisted with preparing the sale catalog for Rago, and declined to proceed with a lecture planned at the auction house after learning that the consignor had refused to transfer or donate the property to Japanese-American cultural institutions. “I did not feel that I could deliver a public lecture connected to the sale in good conscience,” Muller told the ArtsBeat blog of the New York Times of the ethical quandary he faced. As the social media campaign opposing the sale gained traction and an injunction was issued from one former internment camp site, the Heart Mountain Wyoming Foundation, Rago announced their agreement to cancel the auction on April 15, 2015. The auction house’s decision and underlying motivations still draw criticism from activists such as Shirley Higuchi, chairwoman of the Heart Mountain Wyoming Foundation, who stresses that only after the immediate threat of legal action did Rago agree to withdraw the items from the auction block.

The Objects

The ownership of the collection, comprising 23 lots, can be traced back to the 1950s. Following World War II, a number of former internees and Japanese American families donated works of art and furniture to Allen Hendershott Eaton, a historian conducting research for his 1952 book, Beauty Behind Barbed Wire: The Arts of the Japanese in Our War Relocation Camps. The objects were then handed down to an unnamed family friend of Eaton’s heirs based in Connecticut. Among the items bestowed to Eaton were unique “handmade cigarette boxes, delicate bird brooches carved of wood, intricate family nameplates, a cat figurine shaped from tree roots, and watercolors of life inside the camps, including children playing in dirt lanes and outdoor assemblies,” the LA Times reports. In an interview with NPR, Delphine Hirasuna, a scholar specializing in art created in the internment camps observes: “Here is something that gives them pride about what the[ir] grandparents created under really bad circumstances.” The emotional value of the collection far exceeds its monetary value (Rago appraised the lots for a collective estimate of around $26,000) and includes oil paintings and rare black and white photographs depicting families, internees creating works of art, and the rarely seen environs of camps in the West. Individuals born in internment camps or whose relatives experienced the tragic imprisonment of 120,000 Japanese Americans following the U.S. bombing of Pearl Harbor stand by the injustice in selling and monetizing such seminal memories and facets of history.

The Outcome

Screen Shot 2015-06-10 at 12.23.26 AMOn May 2, 2015, the Japanese American National Museum in Los Angeles announced plans to acquire the hotly contested collection as a result of Takei’s efforts to halt the public sale and with the cooperation of the would-be consignor. The museum recently honored Takei, a board trustee, for his contributions with the Japanese American National Museum’s Medal of Honor for Lifetime Achievement. According to Takei, “To put [the Eaton collection] up on the auction block to the highest bidder, where it would just disappear into someone’s collection, was insensitive. The most appropriate and obvious place for the collection was the Japanese American National Museum.” Rago Arts and Auction Center presumably played a role in the amicable settlement and urged the arts community to engage in a broader discussion on related legal and ethical dilemmas facing other institutions. Its managing partner, Miriam Tucker, affirms, “The issue extends beyond what is legal. It is something auction houses, galleries and dealers are faced with regularly.”

The Rago case recalls the efforts and ethics involved in recovering other culturally significant property such as Nazi-era looted works or Native American artifacts. Marc Masurovsky, co-founder of the Holocaust Art Restitution Project, describes a certain “sensibility and sensitivity” that must be acknowledged when dealing with such works. The attempted sale of the Eaton collection also raises interesting issues regarding precedent and discretion when it comes to auction houses accepting consignments, institutions acquiring objects, or galleries purchasing works. Legality aside, ethics and public good seem to challenge the notion of a “pure transaction” involving works of art and objects of cultural heritage.

Note from the editors: On the footsteps of the positive outcome for the Eaton collection, Center for Art Law is acutely interested in the auctions of Hopi artifacts that have taken place and continue to occur in France despite the communal and legal efforts to halt those contested sales. While Rago decided, with some backing from the court, to withdraw the Eaton items from auction, Hôtel Drouot, the largest auction house in Paris, has been proceeding with the sales of Hopi relics despite public outcry.

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About the Author: Rebecca Krishnan-Ayer received a B.A. in Art History and French Literature from Johns Hopkins University.


More than Just “Street Cred”: Why Intellectual Property Rights Matter to Street Artists

By Christine E. Weller*

Perhaps to the dismay of artists executing works in public spaces or on private property, street art and graffiti art has financial value and can be sold at auction without the artist’s consent. This commercialization does not sit well with some artists who engage in street art (illegally at times) as part of a political act, social commentary, or even just  for exposure.  Increasingly, graffiti and street artists who fight the involuntary commercialization of their work are achieving some success.


Street art near Center for Art Law’s Headquarters in DUMBO. The DUMBO Improvement District commissioned this work with studio Sagmeister & Walsh, in partnership with Two Trees Management Co and the NYCDOT Urban Art Program, who collaborated with renowned Japanese illustrator Yuko Shimizu, and hand painted by Coby Kennedy.

While the terminology is unclear and used interchangeably, graffiti and street art are distinct.  The two disciplines can inform each other and are interrelated, but they differ in terms of style, method, and theme. Graffiti generally refers to stylized writing such as graffiti tags and visual work placed on buildings without permission.  Street art can take the form of murals or installations incorporated into property, more often with permission (tacit or explicit) of the property owner. Labels aside, street art lawsuits are garnering attention, and have enough merit to have caused several major commercial brands, including American Eagle Outfitters and Sony Music to settle infringement claims.

Since July 2014, there has been a rise in intellectual property (IP) lawsuits filed by street artists. However, a tension in the legal framework exists.  Many still view street art as an illegal act without artistic merit, to which no rights should attach. Notwithstanding the Visual Artists Rights Act (VARA), U.S. Copyright legislation that protects “moral” rights of artists in their work, there is legal precedent that street art may be destroyed by the property owner or painted over. Cohen v. G&M Realty LP, 988 F. Supp. 2d 212, 214, 109 U.S.P.Q.2d 1869 (E.D.N.Y. 2013)(Five Pointz). Nevertheless, the right to reproduce the street art may be protected by copyright or trademark law as evidenced by the successes in recent copyright cases brought by street artists.  The tension between the street artists’ intellectual property rights and the arrests and vandalism charges they may face is illustrated by the arrest of graffiti artist Cost (Adam Cole) and the recent false arrest lawsuit filed by Richard Pfeiffer, who police allegedly thought was Banksy. Richard Pfeiffer vs. The City of New York et al, No. 152797/2015 (N.Y. Sup Ct. Mar. 21, 2015).

However, with this new wave of successful suits and several forthcoming street art exhibitions, such as Coney Art Walls presented by Jeffrey Deitch in New York and Open Source: Engaging Audiences in Public Spaces presented by the Philadelphia Mural Arts Program, there is an increased need for both artists and brand owners to appreciate that intellectual property rights can attach to artworks installed or executed in public spaces.

A Legal Primer


“Trust Your Vision” By gilf! Street art near our headquarters in DUMBO. Plaque next to art states: “As the world becomes more and more competitive it’s easy to lose sight of one’s goals and aspirations. This maze-inspired piece references the difficulty of navigating life, especially in a city like New York.”

Under U.S. Copyright law, legal protection attaches when an original work is “fixed in a tangible medium of expression.” 17 U.S. Code § 102. Originality is a fairly low bar. The holder of the copyright has several exclusive rights in the work for the duration of the copyright (the general rule today is the life of the author plus 70 years for most works), including: reproducing the work, preparing derivative works, distributing copies of the work and displaying the work publicly. Id. § 106.  Authors need not own the physical copy of the original, nor register their works in order for rights to attach.  However, registering the works with the U.S. Copyright Office is a prerequisite to bringing a lawsuit and allows for statutory damages. Id. § 411. In cases where actual damages are hard to prove, registration is a cheap and added benefit to the copyright owner.

Under U.S. Trademark law, protection attaches to words or symbols used to distinguish a good or service in commerce. 15 U.S. Code § 1051 et. seq. Trademark law is used to protect consumers against confusion. A trademark has the potential to last indefinitely provided that it is being used in commerce.  While the use in commerce requirement for trademarks may make it more challenging for an artist to obtain a trademark registration than a copyright registration, a trademark registration with the Patent and Trademark Office may be another source of artists’ rights in their work. Trademark protection may be especially relevant where an artist uses a graffiti or street art tag in commerce.

The Cases

Anasagasti v. American Eagle Outfitters, Inc., No. 1:14-cv-05618 (S.D.N.Y. Jul 23, 2014)

The recent wave of street art infringement cases began in 2014 with the copyright case filed by Cuban-American street artist Ahol Sniffs Glue (David Anasagasti).  In July, Anasagasti filed a copyright infringement action against American Eagle Outfitters for their use of his mural Ocean Grown (Fl) in an advertising campaign. The original mural, located in Miami’s Wynwood neighborhood, known for its abundance of street art, was commissioned by Ocean Grown Glass Gallery. Wynwood has a vibrant collection of murals, and according to the Miami Times, photographers often seek licenses from the artists before shooting the work. In his complaint, the artist alleges that no permission was sought, and the photography included models posing as if they were painting the murals. American Eagle and Anasagasti privately settled in December.

Hayuk v. Sony Music Entertainment et al, No. 1:14-cv-06659 (S.D.N.Y. Aug 19, 2014)

Well known and successful artist Maya Hayuk also brought and settled a copyright infringement case against musician Sara Bareilles and Sony Music for the unauthorized use of her mural, Chem Trails NYC, in promotional materials for Bareilles’ new album and tour. Previously, Hayuk has sued Urban Outfitters, Target, Coach, and Elle Warner, for the unauthorized use of her artwork.

Miller v. Toll Brothers, Inc., No. 1:15-cv-00322 (E.D.N.Y. Jan 21, 2015)

Luxury  real estate developers Toll Brothers settled with CAM (Craig Anthony Miller) for copyright infringement of his famous Elephant Mural (NYC). The mural was featured prominently in advertisements for luxury condos in Brooklyn that Toll Brothers were developing in the neighborhood where the artwork was originally located. CAM had painted the mural with permission of the property owner in 2009, but it was later painted over in 2013.

Franco Fasoli et al v. Voltage Pictures LLC et al., No. 2:15-cv-00889 (C.D. Cal. Feb 06, 2015)

In February, director Terry Gilliam also found himself at the center of a lawsuit over his film, The Zero Theorem (2013), when he  allegedly infringed a mural by Argentinian street artists Jaz (Franco Fasoli) and Ever (Nicolas Santiago Romero Escalada), along with Canadian artist, Other (Derek Shamus Mehaffey).  In Fasoli, the defendant filed a motion to dismiss.  The Court vacated the hearing date of May 4, 2015 and the parties await a finding on the papers.

Jason Williams et al v. Roberto Cavalli, S.p.A. et al, No. 2:14-cv-06659 (C.D. Cal. Aug 25, 2014)

Finally, in a case involving both copyright and trademark infringement claims, Revok, Reyes, and Steel (Jason Williams, Victor Chapa, and Jeffrey Rubin respectively) filed suit against fashion designer Cavalli for the use of the Plaintiffs’ mural in Cavalli clothing designs. In Williams, the Plaintiffs alleged that pieces of their work were reproduced on Cavalli clothing with their signatures obliterated, and the Cavalli trademark superimposed instead. Plaintiffs argued that this creates a false impression to the consumer as to the origin of the product. In February the court denied a motion to dismiss filed by another named defendant in the suit, Staff USA. Williams v. Cavalli, 113 U.S.P.Q.2d 1944 (C.D. Cal. 2015). This suit is currently pending in the District Court of the Central District of California (Western Division).  It will be interesting to see how the court will treat the trademark argument if the case does not settle.  Many of the artists that have brought suit engage in their own commercial transactions and have carefully policed their brands to control how their work is used and sold to ensure that they are being compensated. The disposition of Williams could establish a new legal tool for street artists.

Going Forward

Defendants in many of these cases, recognized brand owners such as Sony, Cavalli and American Eagle usually find themselves on the other side of IP infringement lawsuits. However, these graffiti and street art cases illustrate that savvy business people and corporations exploring new marketing strategies do not always appreciate that art appearing in “public” spaces is not necessarily in the “public domain.” Copying and distributing street art without permission may constitute infringement and may expose the copier or distributor to significant legal risks.


“The Owls, Revealing Flight” by Craig Anthony Miller (CAM). Street art near our headquarters in DUMBO.

With the preceding examples in mind, street artists should consider their IP rights when installing work in public spaces, and the public and brand owners should be aware that artwork appearing in public spaces may be protected. Before using street art or graffiti art in marketing or product campaigns, brand owners should consider investigating who holds the rights to those works and seek appropriate permissions.  Going forward, street artists who install work in a public space may consider registering that work with the Copyright Office.  Where an artist uses a specific tag or name for commercial purposes, the artist could consider filing for a trademark.  While the notion of “use in commerce” in the context of street art is still untested, bringing a trademark claim in addition to a copyright infringement claim as in Williams might be an additional remedy for a recognized artist.

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*About the Author: Christine E. Weller is an Associate at Griesing Law, LLC where she focuses her practice on new media, intellectual property, nonprofit, and employment law  matters. She can be reached at (215) 732-3923 or

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers are not meant to act or rely on the information in this article without attorney consultation.