Case Preview: Meyer v. Bd. of Regents of the U. of Oklahoma, or How long will Oklahoma herd Pissarro “Sheep”?
On Nov. 22, 2013, New York Country Lawyers’ Association held its 6th Annual Art Litigation and Dispute Resolution Practice Institute. Raymond Dowd, partner with Dunnington, Bartholow & Miller LLP presented an impassioned keynote address entitled “Ethics and Nazi Looted Art, which he began by decrying the headline of a recent The New York Times article apparently legitimizing Nazi property laws (See Enduring Nazi Law Impedes Recovery of Art). Dowd appealed to the practitioners, art historians and reporters in the room to speak up against the film of legitimacy that seemingly condones the status quo of keeping Nazi-era looted artworks where they ended up years and decades after the World War II, and to question “the toxic sludge,” or the artworks that were donated to the American institutions despite their apparent Nazi looted provenance and unlawful taking from the original rightful owners. In addition to shaming the collectors and auction houses, Dowd spoke fervently against the American museums that have used technical defenses — statute of limitations and laches — to hold on to artworks that were clearly stolen during the war. While his arguments for reviewing the acquisitions of artworks sold from the German museums under the ‘degenerate’ guise is more difficult to support, Dowd’s belief that works from private collections must be returned to the rightful owners is absolutely right.
Yet, despite the evidence of the American goodwill and dedication to effectuating the return of looted property, including various declarations and guidelines promulgated in the United States and abroad (see for example Pragmatic not Sympathetic US rejects ADR forum for Nazi looted Art), including the American Association of Museums and the Association of the Art Museum Directors in support of provenance research and cooperation with claimants, cases contesting ownership continue appearing on judicial dockets.
On May 9, 2013, Leone Meyer brought a Complaint against the Board of Regents of the University of Oklahoma, David Findlay Galleries, Inc, and other related Defendants in her efforts to recover an 1886 Camille Pissaro oil painting “Shepherdess Bringing in Sheep” (the “Painting”), which was stolen from her father in the 1940s. Leone Meyer is a daughter and heir of Raoul Meyer, a Jewish French businessman who owned this and other impressionist paintings prior to World War II. According to the Complaint, the Painting in dispute was looted and seized by Nazi Occupational forces. It was imported into the United States in 1956, via the David Findlay Galleries, which sold the Painting to Aaron and Clara Weitzenhoffer, who in turn bequest it and other works to the University of Oklahoma’s Fred Jones Jr. Museum of Art in 2000.
Plaintiff is seeking full and complete restitution of the Painting on the theory of unjust enrichment. She alleges that Defendants failed to conduct provenance research of the work and investigate ownership, which would lead the trail to Raoul Meyer’s heirs. According to the Complaint, Meyer’s collection was deposited with “Credit Commercial de France” in 1940 but the property was seized and transferred to a German collecting point at the Louvre Museum. After the War, artworks missing from the Meyer’s collection were listed among French cultural losses in “Repertoire des Biens Spolies en France Pendant la Guerre de 1939-1945/Registry of Assets Looted in France During the War of 1939-1945. The Pissaro Painting is listed in the “Registry.” Furthermore, the Painting was sited by Raoul Meyer in 1953 but it disappeared before the family could negotiate its return.
The claims for relief include Replevin, Conversion, Constructive Trust, Declaratory Relief and Restitution. The case has been assigned to District Judge McMahon.
Attorney for Plaintiff is Pierre Ciric, of The Ciric Law Firm.
Source: Complaint, Meyer v. Bd. of Regents of the U. of Oklahoma, et al, 13-CIV-3128 (S.D.N.Y. filed May 9, 2013); The New York Times.
By Richard A. Altman, Esq., Law Office of Richard A. Altman*
Whether the Center for Art Law hosts its next dinner and a movie evening dedicated to the new Martin Scorsese film “The Wolf of Wall Street” remains to be seen. However, a suit arising from this film, recently filed in the Eastern District of New York, illuminates a curious area of defamation law known as libel by fiction. It arises when someone claims that a fictional work which portrays a character in a negative light, usually as a criminal or an unchaste woman, is based upon personality or physical characteristics or qualities which the plaintiff possesses, such that people who know the plaintiff will think that he or she is the basis for the person portrayed. It is rarely successful, but if a plaintiff can show that people reasonably assume that the fictional character is based upon him or her, and that the portrayal is sufficiently negative, it is possible to maintain a defamation claim.
What makes the claim so odd is that it is counter-intuitive and even illogical, because “a plaintiff claims that something that is fictional is not factually accurate.”1 In New York, every libel plaintiff must show that the complained-of portrayal or statement is “of and concerning” him. This is not an issue in the usual situation, where a plaintiff is actually named in a publication and there is no doubt regarding who he or she is. But if the plaintiff is only verbally (or visually) described in the fictional work as someone else, it is then the part of the plaintiff’s burden to show that persons who know the plaintiff will necessarily recognize him in the fictional portrayal. The burden is a heavy one, but, as will be shown, the plaintiff in the new case may have met that burden, and could survive a motion to dismiss. And perversely, his less-than-spotless reputation may make him more, rather than less, likely to succeed.
In Greene v. Paramount Pictures Corporation et al., 14-cv-1044 (E.D.N.Y, Feb. 18, 2014), the plaintiff, Andrew Greene, alleges that he is a lawyer, an inactive member of the California bar, and was formerly the head of the Corporate Finance Department of Stratton Oakmont, Inc., from 1993 until his resignation in 1996. Stratton Oakmont was a large over-the-counter securities brokerage firm in the 1990’s, and its head, Jordan Belfort, was indicted in 1998 for securities fraud and money laundering, which led to the firm’s demise. Mr. Greene further alleges that the recently released Martin Scorsese film, “Wolf of Wall Street,” contains a fictional character named Nicky “Rugrat” Koskoff, who is “portrayed as a criminal, drug user, degenerate, depraved, and/or devoid of any morality or ethics,”2 and that the character of Koskoff is based upon him. In the film, Koskoff is played by Leonardo DiCaprio.
Mr. Greene further alleges that in 2007, Belfort wrote a memoir about the firm with the same name as the film, that the book refers to him (Greene) by his correct name, and that the film is based upon the book. He references similarities between himself and the portrayal of Koskoff, including that they both were close friends with Belfort, that they both went to law school, that they both wore toupées, that the film mocks Koskoff’s toupée, calling it a “piece of shit hairpiece,”3 and that they both had significant leadership roles at Stratton Oakmont.
However, what the complaint omits is that Mr. Greene was one of four former officers of that firm who were collectively fined $10 million in damages by a National Association of Securities Dealers arbitration panel, allegedly for defrauding an investor. Apparently Mr. Greene’s share was $1.5 million.4 It is not known whether the arbitration was ultimately enforced, or whether the fines were paid, but the findings of the NASD panel, and the assessment of a substantial punitive damage fine, would seem to affect Mr. Greene’s reputation negatively. Since, by definition, a libel plaintiff claims damage to a good reputation, the likelihood of ultimate recovery here would thus appear slim. But libel-by-fiction cases have their own rules.
Mr. Greene sets forth five causes of action based upon these facts. It seems however, that only one has a chance of success.
The first and second causes of action are based upon New York Civil Rights Law §§ 50 and 51, which provide a cause of action for an injunction and damages against anyone who “uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person.” But this statute is not a general protection of the right of privacy; there is no such right in New York other than that provided by libel laws.5 A claim under these statutes requires the unconsented-to use of the actual name or likeness of the plaintiff, usually in a photograph. Portrayal of the plaintiff in fiction under a different name is not sufficient.6 Here, plaintiff does not allege that his actual name or likeness appears anywhere in the film. Thus, since neither plaintiff’s actual name nor likeness were used, it would seem that he has no claim under Civil Rights Law §§ 50 and 51 for either an injunction or damages.
The third cause of action alleges that the defendants “have consciously and deliberately disregarded and violated Plaintiff’s common law propriety [sic] right to exclusive control of the commercial use of his image, likeness, and characterization,”7 and he seeks an injunction and damages. But as just stated, there is no such common law right in New York. The right to control one’s image, likeness and characterization is purely statutory. Hence the third cause of action is likely to be dismissed.
The fourth and fifth causes of action are in the nature of claims for libel per se. They allege that the statements and portrayal in the film show him “as a criminal and drug user with misogynistic tendencies.”8 The fourth alleges that the statements and portrayals were made “with malice or [that defendants] acted with reckless disregard as to the truth or falsity of the statements.”9 The fifth alleges that the statements were made “negligently as to the truth or falsity of the statements.”10 Nowhere in the complaint are the actual statements in the film set out verbatim. There is only one exception, where a character in the film named Donnie Azoff is alleged to say, “Fucking Rugrat that wig-wearing faggot I can’t believe that fucking guy. I want to kill him.” Belfort’s character then says, “Swear to God, I want to choke him to death. Irresponsible little prick.”11
The failure to set out verbatim in a defamation complaint the exact words complained of is fatal to a claim in New York State courts.12 However, it is not necessarily fatal in federal courts, because pleadings there are governed by F.R.Civ.P. 8. “While the federal rules do not require the particularized pleading requirements set forth in New York’s C.P.L.R. section 3016, Rule 8 still requires that each pleading be specific enough to afford defendant sufficient notice of the communications complained of to enable him to defend himself.”13 Thus plaintiff still must point to specific language or imagery in the film which states facts to support his claim that he is portrayed as a criminal. He has not done so. Obviously the film is far more than just a portrayal of Mr. Greene, and it would seem necessary to identify those portions of the film specifically alleged to be defamatory.
In any event, the only words actually quoted in the complaint are not defamatory. They are obviously not statements of fact about “Rugrat,” capable of being true or false, but are merely opinions in the form of invective and abusive language, which is not actionable. Only statements of fact can be libelous, and calling someone a “wig-wearing faggot” and an “irresponsible little prick,” while certainly nasty and insulting, would not be considered libelous.14
Thus, even leaving aside these significant and possibly fatal omissions, we are left only with a claim for libel by fiction. This is where it gets interesting. As noted above, the claim is counter-intuitive, in that it is based on the assertion that a work of fiction is false. But it does exist: “In the fiction context, the plaintiff must also show that the viewer was totally convinced that the episode in all aspects as far as the plaintiff is concerned is not fiction at all.”15
In Batra v Wolf,16 the Court refused to dismiss a complaint against the television show “Law and Order,” brought by a lawyer who claimed that a character in an episode of the show was based on him, and portrayed him as corrupt. The episode was based on a true and widely reported event involving judicial corruption in Brooklyn, and a judge who served time in prison. The plaintiff, a lawyer named Ravi Batra, had been involved in judicial politics, but was never charged with any crime in connection with the event. He had however been linked to the corrupt judge in the press. The lawyer in the episode had the same first name, Ravi, and both the plaintiff and the fictional lawyer were of Indian descent. In the episode, the surname Batra was changed to Patel. The court said that the similarities were close enough to entitle the plaintiff to proceed, and did not dismiss the action:
In the context in which Floater was presented, extensive media coverage linking Batra to the Garson/Siminovsky scandal, there is a reasonable likelihood that the ordinary viewer, unacquainted with Batra personally, could understand Patel’s corruption to be the truth about Batra. While the accusations against Batra were for graft rather than for bribery, it cannot be said that this distinction is sufficiently “far-fetched” that Patel’s corruption could never be understood as describing actual facts.17
In Geisler v. Petrocelli,18 the plaintiff had appeared in a work of fiction under her real name, which allegedly portrayed her as participating in a fraud involving a tennis match, and in which she was “lured into untoward sexual conduct which is graphically portrayed.”19 The Court then said:
Rather, it is required that the reasonable reader must rationally suspect that the protagonist is in fact the plaintiff, notwithstanding the author’s and publisher’s assurances that the work is fictional. This points up the disturbing irony inherent in the scheme: the more virtuous the victim of the libel, the less likely it will be that she will be able to establish this essential confusion in the mind of the third party. Thus, the more deserving the plaintiff of recompense for the tarnishing of a spotless reputation, the less likely will be any actual recovery. Such a seeming contradiction is best resolved by the trier of fact since adjudication of the issue as a matter of law will seldom satisfy the expectation that legal holdings be consistent and logical. Id. at 639.
What makes Mr. Greene’s case unusual is that it is the opposite of Giesler. If a plaintiff with a spotless reputation is less likely to recover, is a plaintiff with a tarnished one more likely to recover? It seems no less illogical than a libel-by-fiction claim itself.20
Based on the case law and commentary, it appears that Mr. Greene can legitimately assert that he and “Rugrat” Koskoff are one and the same, at least as a threshold issue. Maybe the toupée is the clincher. Moreover, considering the dictum in Geisler, the fact that Mr. Greene’s reputation is not spotless ironically might make his likelihood of ultimate recovery greater than if the NASD had never penalized him and if the firm had never crashed and burned. But then, if that had not happened, there would have been no movie.
1 Batra v. Wolf, 2008 N.Y. Misc. LEXIS 1933 at *5 (Supreme Ct. N.Y.Co. Mar. 14, 2008).
2 Complaint, ¶ 30 at 6.
3 Id., ¶ 28 at 6.
4 See http://www.securitiesarbitration.com/news/1997/04/18/former-stratton-execs-fined-10m/ (accessed March 5, 2014).
5 Arrington v. New York Times Co., 55 N.Y.2d 433 (1982).
6 Allen v. Gordon, 86 App.Div.2d 514 (1st Dept.1982), aff’d 56 N.Y.2d 780 (1982).
7 Complaint, ¶ 55 at 10.
8 Id., ¶ 62 at 11.
9 Id., ¶ 60 at 11.
10 Id., ¶ 65 at 12.
11 Id., ¶ 29 at 6.
12 CPLR 3016(a); Buffolino v. Long Island Sav. Bank, FSB, 126 A.D.2d 508 (2d Dept.1987).
13 Gristede’s Foods, Inc. v. Poospatuck (Unkechauge) Nation, 2009 U.S. Dist. LEXIS 111675, 2009 WL 4547792, at *8-9 (E.D.N.Y. Dec. 1, 2009)(citations omitted).
14 Steinhilber v. Alphonse, 68 N.Y.2d 283 (1986).
15 Batra, supra n. 1 at *5 (citing Welch v. Penguin Books USA, Inc., 1991 N.Y. Misc. LEXIS 225 (Sup.Ct.Kings Co.1991)(quotation marks omitted).
16 2008 N.Y. Misc. LEXIS 1933 (Supreme Ct. N.Y.Co. Mar. 14, 2008).
17 Batra, supra, n. 1 at *10.
18 616 F.2d 636 (2d Cir.1980).
19 616 F.33 at 638 (footnote omitted).
20 The subject of libel by fiction is explored in two recent law review articles: “When ‘Ripped from the Headlines’ Means ‘See You in Court’: Libel by Fiction and the Tort-Law Twist on a Controversial Defamation Concept,” 13 Texas Rev. Ent. & Sports L. 117 (2012) and “When Is Fiction Just Fiction? Applying Heightened Threshold Tests to Defamation in Fiction,” 76 Fordham L.Rev. 1853 (2007).
Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.
By Irina Tarsis, Esq.
In truth… in art, there are few, if any, things , which in an abstract sense, are strictly new and original through out.” Emerson v. Davies (CCD Mass 1845). J. Story
Remember Cariou v. Prince?
Cariou v. Prince, 11-1197-cv (2d Cir. Apr. 25, 2013) rev’ing 784 F.Supp.2d 337 (S.D.N.Y. Mar. 18, 2011) offers many teachable moments. Starting with the harsh decision by Judge Deborah Batts of Southern District of New York, which ordered the infringing works to be handed over to the Plaintiff for destruction, and ended with the tweet Richard Prince posted when he received twenty-five of his thirty paintings following the Second Circuit Court of Appeals partial reversal of J. Batt’s decision, finding that only five of the works Prince made were not ‘transformative’ as a matter of law. When the twenty-five works were ultimately returned to Prince, he observed that after half a decade of not seeing them he was of the opinion that he should have been sued for “making shitty paintings”.
Copyright in a Nutshell
U.S. 1976 Copyright Law identifies art and photographs as copyright protected works and lists preparation of derivative works as an exclusive right of the copyright owner. 17 U.S. 101, 106. The fair use defense limits the exclusive rights of copyright holders in certain circumstances when the work is used for valid purposes such as but not limited to criticism, comment, teaching or research. There is a famous four-factor test to decide whether “the use made of a work in any particular case is a fair use,” 17 U.S. 107. Unfortunately, there is no way to predict how judges will apply and weigh the four factors due to the high level of discretion afforded to the judges. A couple examples of this occurred recently when the Cariou appeal was pending and California courts ruled in two fair use cases categorically differently – both citing Cariou but one using J. Batts’ decision and the other using the 2nd Circuit decision (see Morris v. Guetta 2013 WL 440127 (Feb. 4, 2013) and Seltzer v. Green Day, 725 F.3d 1170 (C.A. 9th Cir. 2013).
On 16 December 2013, nine organizations and individuals arguing for the rights of photographers to benefit from the derivative use of their copyright protected works submitted an amicus brief in support of Patrick Cariou in his case against Richard Prince for the appropriation of the images from “Yes, Rasta” book for creation of the “Canal Zone” art works. (For background on Cariou v. Prince, read Appropriate Standard in Appropriation Art). Now, the New York Times’ Patricia Cohen reports that photographers are considering turning to Congress for assistance in protecting their works. She quotes Victor Perlman, general counsel for the American Society of Media Photographers, as saying “The courts have taken an approach to fair use that we do not believe was originally intended… A lot of what’s going to have to happen in fair use is going to have to happen on Capitol Hill.”
While it is hard to imagine that this Congress is capable of assisting anybody, one possible avenue to run interference is to modify the Copyright Act to include compulsory licensing for artists who incorporate copyright protected works of others into their work. The idea of having such a licensing scheme is not new; it was raised at least as early as 2002 by co-author of the Art Law treatise, Judith Bresler, Esq., in an article entitled ”Begged, Borrowed or Stolen: Whose Art is It, Anyway-An Alternative Solution of Fine Art Licensing.” J. Copyright Soc’y USA 50 (2002): 15.
Richard Prince, whose appropriation of Cariou’s works rekindled the fair use debate, responded to the announcement about photographers appealing to Congress by posting two black and white images on his Twitter account. Entitled “Untitled (protest) Thanks to the National Press Association & The Professional Photographers of America, the pictures include the 2012 Shia Muslims protest condemning killings in north-western Pakistan and a pornographic image of a woman scantily-dressed grasping at her breast and throwing her head back in protest or ecstasy.
The origin of the second image is not easily ascertained; while the credit line for the Pakistan protests indicates that it belongs to Agence France-Press.
Sources: The New York Times; Cariou v. Prince, 11-1197-cv (2d Cir. Apr. 25, 2013); Amicus Brief, Cariou v. Prince, 08 CIV 11327 (DAB) (Dec. 16, 2013).
After a 13-year legal battle that seemed to have ended in 2011, Egon Schiele’s 1912 Portrait of Wally remains embroiled in disputes. By way of re-introduction: the painting was taken from the owner, the Bondi family, in 1939 by another dealer and Nazi party member; it was later acquired under questionable circumstances by an Austrian Schiele collector Rudolf Leopold. After a famous and protracted litigation, the case was settled in favor of the Bondi heirs in the amount of $19 million. (See “Schiele — still stolen? Ruling on Portrait of Wally (110 pages)” and “$19 million settlement frees “Portrait of Wally” after 13 year of legal disputes”).
However, it appears that barely any of the $19 million settlement has been dispersed to the heirs due to yet another legal claim. Robert Roistacher, the boyfriend of one of the heirs, filed a compensation claim seeking $2.75 million as a finders fee. Roistacher argued pro se that he was entitled to compensation alleging that his efforts to contact the Manhattan District Attorney’s Office led to the painting’s seizure by authorities and eventually the settlement.
On February 10, 2014, US District Judge Katherine Forrest in New York dismissed Roistacher’s claim for compensation on jurisdictional grounds, noting that his grievance with Bondi’s estate was a moral rather than a legal one. Roistacher may appeal, given his unwavering position that he was not acting as a volunteer in the restitution efforts.
Sources: U.S. v. Portrait of Wally, 105 F. Supp. 2d 288 (S.D.N.Y. 2000); Roistacher v. Bondi, et. al., No. 11 Civ. 8200 (S.D.N.Y. 2014); The Art Newspaper.
Center for Art Law presents “Portrait of Wally Evening” on March 3, 2014. Those in NYC and interested in sharing Portrait of Wally thoughts and stories over a casual dinner followed by the screening of the documentary narrating the history of recovering the painting should RSVP by March 2, 2014. The screening is co-sponsored with Holocaust Restitution Practicum (Benjamin N. Cardozo School of Law). Details Here.
*About the Author
Lesley Sotolongo is a third-year law student at Benjamin N. Cardozo School of Law and may be reached at Lesley.Sotolongo@law.cardozo.yu.edu.
by Irina Tarsis, Esq.
You know you are in need of a reputation management when the entire world knows your name and your address and nobody is thinking of sending you greeting cards. Also, reputation management might be a good idea when 1) your father was an art dealer connected to the Nazis, 2) you are caught hoarding hundreds of valuable artworks of questionable provenance, and 3) you may or may not have been hiding Nazi-era looted art as well as avoiding paying income taxes.
Regardless of whether the Monuments Men-mania is dying down or not, Cornelius Gurlitt saga continues to unfold. With the German government contemplating changing its statute of limitations laws to allow for the recovery of looted art, and the international community is antsy to jump into the game of reviewing Gurlitt’s trove. Countless headlines, tweets and posts have embarrassed the Bavarian authorities and prompted the creation of a special international task force to review provenance of paintings and works on paper taken from Gurlitt’s apartment in Munich in 2012 and from his house in Salzburg in February 2014.
Initially taciturn and reticent to speak in his own defense, Gurlitt had made asked for his art back, alleging that he did nothing wrong and wondered why he had been separated from his property. Since then the tone has evolved, and now there is a bilingual website dedicated to explaining Gurlitt’s position and soliciting claims for works that he originally had no plans to relinquish. The website went live on 18 February 2014 — see: http://www.gurlitt.info. On the homepage, there is an image of a gentile and approachable man, not in his early 80s – not Gurlitt – used to epitomize him and invites website visitors to engage in “[d]iscussions about the Gurlitt case.”
The website names four individuals working for Gurlitt: Dr. Hannes Hartung (Private Law), Prof. Dr. Tido Park (Criminal), Derek Setting (Criminal), Christoph Edel (maintainer) as well as Stephen Holziger of Holziger Associates (the spokesperson for Gulritt, who registered the Gurlitt.info domain name). According to Holzinger, the Gurlitt.info website, “reiterates our willingness to engage in a dialog with both the general public and any claimants.” As Holzinger’s own website states, the services his ‘highly specialized communications consulting form’ provides include development and implementation of “purposeful communication and reputation management strategies for entrepreneurs, wealthy families, executive and advisory board members, corporations, SMEs, investors, institutions and associations in crisis situations, in case of disputes and during civil and criminal court proceedings,” otherwise, a public relations company for the wealthy with big problems. Perhaps the recent revelation of the Salzburg stash was a public relations move prompted by Holzinger in an effort to build up goodwill and to preemptively ward off another wave of press coverage. Indeed, it was Holzinger, who revealed on 11 February 2014, “that Mr Gurlitt has more works at his house in Salzburg, Austria, on top of the 1,400 pieces found at his Munich home in 2012.” Just imagine the firestorm, had the news of the Salzburg stash been scooped by the media instead…
Gurlitt.info states that only four families have come forward so far to claim works in the Gurlitt trove and that at most, only 3% of the entire collection may constitute Nazi-era looted art, the rest being rightfully owned by Gurlitt. As the German authorities continue to make heads and tails of the story, provenance researchers must be able access to the collection in order to assist in the investigation. It is more probable than not that more families will step forward and offer proof of ownership in other works taken from Gurlitt.
In the meantime, at least according to the Gurlitt.info:
“the Gurlitt case is by no means unique. Nazi plunder in German museums has long been known to be a problem. And there is definitely still a lot of looted art in private and public collections. Quantitatively speaking private and public collections may well contain considerably more instances of suspected looted art than in the case of Cornelius Gurlitt.”
About the Author:
Irina Tarsis, Esq. is the Founder of Center for Art Law; in addition to provenance research and teaching, she focuses her practice on business and art law. She may be reached at email@example.com
Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.
By Hanoch Sheps, J.D.
Authenticity: a trait that seems increasingly hard to establish. Some entities are even burning fake artworks to ensure lasting integrity in the art market. Does the presence of ‘fakes’ warrant such drastic action, and is it legal to seize and destroy someone’s property?
Picture this – a collector purchases a particular artwork that is represented as a work by Marc Chagall. A red-letter day, right? Seeking to authenticate the work, the collector submits it to an expert committee or board specializing in the artist’s work. To the collector’s chagrin, not only does the committee deem the work to be a fake, but intends to burn it instead of returning it. This is a story British collector Martin Lang would say is all too familiar, “[I]t’s basically my property. I just couldn’t understand why the committee would be so draconian,” he told the BBC.
Lang bought what he thought, and was represented to him as a 1909 Chagall watercolor for £100,000 (US$170,000) in 1992. He then submitted the work to the Chagall Committee, an entity in France known for authenticating works by the artist, but was told that the work was a fake. As a matter of course, contracts with authenticating entities often include provisions that permit them to destroy the work if deemed a forgery (making it unlikely for him to recoup his expenses). According to a London-based art lawyer, Pierre Valentin, however, Lang’s contract was rather opaque on this point, “[s]ome contracts are more explicit. I haven’t seen this contract, but the paragraph was read to me and it’s not at all explicit… It should be absolutely clear.” (The Destruction Of Fakes, Pierre Valentin).
What is clear is that France is a staunch enforcer of artists’ rights and its courts have upheld decisions to destroy works deemed fakes in the past. For example, in two separate instances in 2013, a French court ordered the destruction of works formerly attributed to Joan Miró in cases involving an established Miró committee that declared them forgeries. (The Destruction Of Fakes). Artists in countries like France enjoy moral rights or droit moral that include the Right of Authorship (Droit à la Paternité). One aspect of that right enables the artist to prevent the use of his name on works that he did not, in fact, create. (See Ralph E. Lerner & Judith Bresler, Art Law: The Guide for Collectors, Investors, Dealers, & Artists 4th Edition. New York: Practicing Law Institute, 2012). It is therefore no surprise that the French legal system would support the decisions of entities that seek to protect an artist’s legacy. In fact, a 2004 EU directive also permits courts to order the destruction of goods as a measure of enforcing intellectual property rights. Note, in such an order courts must balance those rights against the severity of the infringement. Perhaps more interesting is that legislators conceive intellectual property rights as limited rights with distinct termination points, whereas artists conceive artwork that can last indefinitely. What then has greater value, temporal rights or a perpetual artistic legacy?
When reconciling the intellectual, moral and ownership rights involved in a case like the Chagall forgery, does it make practical sense to allow the court to pass judgment on an artwork’s authenticity? It would not be the first or last time a court has done so, but the experts courts rely on in such cases may not always be the best resource.
Legal or not, participants in the art market need to weigh some policy considerations. Without rehashing our recent article regarding fakes (A Plethora Of Fakes and a Series of Thoughts: Where Has All The Real “Art” Gone?, Center for Art Law), the detrimental effects of fakes in the market and on good faith purchasers is readily apparent. However, committees are not infallible, new evidence emerges, opinions conflict and change – not to mention the opinions of other experts in the industry.
Even those entrusted with the legacy of an artist have strayed from that path. Before the 1984 death of Italian painter and sculptor Amedeo Modigliani’s daughter, she entrusted her father’s archives and a reproduction right to Christian Parisot. In 2010, Italian police raided a Modigliani retrospective organized by Parisot, twenty-two of the works ultimately deemed fakes. Italian authorities later charged Parisot with receiving counterfeit goods and falsely authenticating them, though he still awaits trial. (A Modigliani? Who Says So?, NYT). If we call into question the integrity of those we trust to ensure market integrity and protect an artist’s legacy, can we justify the seizure and destruction of works on their part?
As deplorable as fakes are, certainly there are better uses for them as tools to teach future authenticators, curators, auctioneers, appraisers. At least the committee can declare a work a forgery, take measures to prevent it from entering the market, and return it to the owner. After all, the owner sought the committee for an authentication service; if they deny authenticity, should the owner not have the ability to decide what to do with it next – or are the collectors not to be trusted either? The famous case of “double denied” did not result in destruction of the physical object, just the market value of it (a meaningless distinction for some) (Term of Art: Authenticity, 2010) and there are museums that collect fakes for study purposes – see for example the Fogg Museum at Harvard.
In a rather timely fashion The Authentication in Art Foundation (AiA) is organizing an interactive working conference on May Wednesday 7 to Friday 9 2014 in The Hague entirely dedicated to painting authentication. (Visit the conference program page for more information). As collectors and the art market increasingly rely on art experts to ensure commercial value of artworks, art experts, at least in the United States, find themselves on the wrong end of a lawsuit. In order to protect academic scholarship and ensure that authentication committees persist, members of the New York City Bar proposed new expert liability legislation on which we previously reported in its initial unveiling in November (A Plethora of Fakes and a Series of Thoughts: Where Has All The Real “Art” Gone?). The art world is increasingly more litigious and while physical destruction may go a long way to preserve the purity of the provenance, there is always a risk that an entity may erroneously order the destruction of an authentic work.
*About the Author
Hanoch Sheps, J.D. is a recent graduate of New York Law School. He may be reached at Hanoch.firstname.lastname@example.org.
This and all articles are intended as general information, not legal advice, and offer no substitute for seeking representation.
A Flag by other Name: Are there Traditional Ownership Protections Available to Iconic Cultural Symbols?
By J. Bruce Richardson*
A physical flag, in and of itself, is a piece of fabric. However, once a cultural symbol is put on a piece of fabric, the cloth transforms and carries with it whatever cultural significance is found in the original symbol. The flag then becomes as much a part of cultural property as the symbol adorned on it. The flag allows the cultural symbol to become portable and more visible. Some flags, such as those for nations, generally identify with a specific geographic area. For example, flying the Canadian flag on a naval vessel signifies that it is subject to Canadian jurisdiction. The Canadian flags flown in embassies around the world tell visitors that they are “amongst Canadians” (embassies are not considered to be foreign soil). However, many Canadian expats or tourists put up the Canadian flag in their homes, not to identify that they live on “Canadian soil”, but that they have some connection to Canada, as a concept. This concept is not limited to national flags, and can apply to other affiliations. Thus, the flag adopted by the descendants of the Acadians flies prominently in areas of the Canadian Maritimes, Louisiana and even in France, even though there is no political entity or government claiming ownership.
There are a number of flags that are recognized internationally and enjoy some level of international protection even though they are not national flags, such as the Red Cross flag or the Olympic Games flag. Should this list also include the Pride Flag, a.k.a. the rainbow flag, which currently does not enjoy protections accorded to other culturally significant flags? No country or organization has stood up to claim ownership of the Pride Flag. Yet there are arguably few other cultural symbols steeped in as much significance for the LGBTQ (Lesbian, Gay, Bisexual, Transgender, and Queer) community it represents. This symbol is so entrenched with the LGBTQ community, that its prohibition in some schools, as well as in some countries is seen as a direct affront to the LGBTQ community members, inasmuch the flag’s raising is seen as both giving support to the LGBTQ community and protesting other countries’ anti-LGBTQ laws.
Having a symbol so ingrained with a community begs the question on how people can ensure that such symbols are used appropriately and with the community’s authorization. How can current law be used to protect such cultural flags against unauthorized use or misappropriation? There could be three possible ways, 1) international, 2) trademark law, or 3) copyright law.
The Paris Convention for the Protection of Industrial Property provides protection for various official insignia of countries. Paragraph 1(a) of Article 6ter states:
The countries of the Union agree to refuse or to invalidate the registration, and to prohibit by appropriate measures the use, without authorization by the competent authorities, either as trademarks or as elements of trademarks, of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view. [Emphasis added]
For the application of this provision, paragraph 3(a) states that countries have agreed to communicate “the list of State emblems” and “official signs and hallmarks” reciprocally through the International Bureau at the World Intellectual Property Organization (WIPO) (which maintains a database of signs given Article 6ter protection). Interestingly, this requirement is absent for state flags, which in essence have automatic protection (although communication through WIPO of state flags is not technically required to obtain protection, many member States have chosen to do so, including Iceland, Cuba, and Norway). Paragraph 1(b) extends this protection for the symbols of International Intergovernmental Organization (IGOs). Some examples of IGO flags are the flag of the World Health Organization and of the Commonwealth of Nations. Unlike the case for State flags, IGOs are required to notify WIPO of the adoption of their flags in order to benefit from Article 6ter protection.
Why are state flags treated differently? Some say that the colors and symbols of flags “convey the ideas/ambitions/values of the country or organization.” Others suggest that flags will gradually become a part of a country’s heritage. But not all flags are considered to be “country flags”. Some flags represent a certain culture or identity that can be found entirely within a certain nation or may spread across the globe. The answer may be as simple that a country is geographically identifiable, as would be its government, so its “owner” is readily identifiable.
In order to receive international protection under Article 6ter for the Pride Flag, one of the Member States would have to either claim it as its State flag or as an official symbol. Given the divergent level of LGBTQ rights around the world, this does not seem likely or soon in coming. Alternatively, an international convention could be held to protect this flag, such as the case with the Red Cross and Olympic flags. However, this would require several countries to agree to hold a diplomatic conference. Given that there are over 76 countries with criminal provisions against homosexuality, this, too, is unlikely.
In Canada, and in most common-law countries, rights in a trademark are acquired through use in association with goods or services. Although there is some controversy surrounding when and how the rainbow colors began being associated with the LGBTQ community, it is well settled that the first time a rainbow flag was used as such was during the San Francisco Pride march in 1978. Of note, the original pride flag consisted of eight different coloured stripes. The creator of that first flag, Gilbert Baker, a San Francisco artist, asked a company to mass-produce his flag, but was told that one of the colored stripes (the “hot pink” one) was unavailable for mass production, so that color stripe was dropped from the flag. Upon the assassination of the gay rights activist Harvey Milk, the community in San Francisco looked to the flag to help show strength and solidarity. The indigo stripe was eliminated so that the colors “could be divided evenly along the parade route”, resulting in the current six-colored flag. The date of first use of this (six striped) flag is thought to be 1978. However, it is unclear with what goods and services the flag has been associated. Using a flag in a way to express “strength in solidarity” is not a “use” of a trademark (as found in section 4 of the Canadian (Trade-marks Act) as required to obtain rights. Because many companies now incorporate the rainbow flag or symbol within logos to sell goods or advertise services, it cannot be determined that the rainbow symbol comes from one source. Other companies have incorporated the rainbow colours within existing logos in order to cater to the LGBTQ community, or to give some level of support to them. This over-use of the rainbow symbol in commerce renders it non-distinctive and therefore not eligible for trademark protection.
Another possibility for a more defensive protection of the rainbow flag in Canada would be to view it as an official mark. Official marks are available only to public authorities, which are entities whose activities 1) benefit the public, and 2) are under a significant degree of control by a Canadian government. Like the situation for Article 6ter marks, it would require a Canadian public authority to make a public notice (by sending a request to the Canadian Intellectual Property Office) that it has used and adopted the rainbow flag. Prohibition against the use of an official marks includes the mark itself, or a mark “so nearly resembling” the official mark “as to be likely to be mistaken for” it without authorization. The rainbow flag has not been subject of a public notice to date.
Is there copyright in the rainbow flag? Although there are arguments for and against protection, for the purpose of this paper, it is assumed that the requisite originality and fixture are there so that copyright exists. As the author of this artistic work, Gilbert Baker owns the copyright. This gives him the exclusive right to reproduce the flag in the U.S. and Canada, and in many other countries around the world, and this gives him moral rights as well (particularly in Canada and in the EU). In a 2007 article, Baker claimed that this flag “has no rules” or protocol governing its display. This could be evidence that Baker has waived his rights. Although the copyright to the flag could have been sold (although there is no evidence of this), Baker’s moral rights in Canada always remain. This could mean that he would be able to stop the rainbow flag from being used in association with a product, service, cause or institution that is to the prejudice of its author’s honor or reputation, or prevent the flag from being “distorted, mutilated or otherwise modified”. There was a recent incident in Alberta where rainbow flags were burned. Although police investigated the case, Baker did not show up in court seeking to enforce his moral rights. The straightforward authorship of the rainbow flag is in stark contrast to the controversy surrounding the creation of the bear pride flag, and who was the actual author of the work. One of the supposed designers has claimed copyright in the work, although in 2002 he finally waived any rights to the flag (much like Gilbert Baker did with the rainbow flag).
National flags and flags of international IGOs such as the International Olympic Committee and the Red Cross are protected by international agreements, while culturally important flags such as the Pride flag are not. Such cultural flags could be subject matter of copyright or trademark protection, but that would bestow ownership of these flags to an individual, or a private entity. In the case of the Pride flag, the LGBTQ community would have to trust that the copyright or trademark owner would enforce the use of the flag in such a way that it is beneficial to the community. In this case, the best answer may be the “blanket license” that the copyright owner has given to the use of the flag. Although it may be possible to grant ownership of a cultural flag to an individual or private entity, this may not be in the best interest of the culture/community the flag is intended to represent.
About the Author:
J. Bruce Richardson, B.Sc., M.Sc., LL.B, works for the Government of Canada. This article is entirely his own initiative and the content here does not necessarily reflect the views of his employer, office, or position.
By Nora Choueiri*
When people think of Italy, they think of Leonardo da Vinci and Michelangelo, the country with the dozens of UNESCO heritage sites (49 at last count), and a nation with very strict art and cultural heritage laws. One does not generally think of art and cultural heritage sites falling apart because of lack of funding. But that has become the harsh reality in a country suffering from the European economic crisis. With the current recession, the Italian government has significantly cut its cultural budget in order to fight down Italy’s $2.5 trillion (yes, with a ‘T’) public debt. The heavy financial burden has left the country without the funds necessary to restore, let alone maintain, its national heritage. Even more traditional forms of fundraising, such as through ticket sales, are not enough to keep up with the demand for restoration and preservation. As a result, Italy has had to come up with other solutions.
One unique and very contemporary solution to the problem: use social media and let the people decide. Under a program called “L’Arte Aiuta l’Arte” or “Art Helping Art,” the Italian government selected eight works of art that it deemed ‘important’ to Italy’s cultural heritage and in need of restoration. Using Facebook as a tool, the government posted pictures of the pieces online and asked its citizens to vote to determine which one of the eight should be restored first. The painting titled “Madonna con il Bambino/Madonna and child” by Pietro Perugino emerged as the winner, with the government promising to restore the remaining seven paintings in the future.
Even architectural bastions like Italy’s iconic Colosseum are not immune from the scarcity of funding, and private funding is one of the other solutions that has surfaced to fill the void left by the government. The Colosseum had been in need of restoration for years—chunks of marble had literally been falling off the structure— when work finally began in December 2013. However it is not the Italian government footing the $33 million bill, but rather Diego Della Valle, CEO and founder of the Italian luxury fashion brand Tod’s. The Colosseum is far from the only important Italian site in need of restoration, and many others throughout Italy are suffering from lack of funding, including the ancient city of Pompeii, where it is increasingly commonplace for beams and walls of historical buildings to collapse.
The Italian government’s financial woes have led them through emergency decree to sell off around 350 properties that include historic buildings in Rome, Milan and Venice. Included among the properties is Orsini Castle, a medieval fort built for Pope Nicholas III in the thirteenth century (it could be yours for a cool 15 million euros!). This raises the question of how, despite Italy’s rigorous cultural heritage laws, these properties could legally be sold to private owners?
The question is especially pertinent when considering the recent case of contemporary Italian artist Francesco Vezzoli who found himself in a great deal of legal trouble when he tried to export a dilapidated and deconsecrated old Italian church as part of an art exhibit at MOMA PS1, to be titled “The Church of Vezzoli.” Vezzoli had contracted to buy nineteenth century church ruins from the owner for around $100,000 after he found the roofless structure for sale online in the southern Italian town of Montegiordano.
The church was to be reconstructed in the courtyard of the MOMA’s PS1 exhibition space in Queens and repurposed to house a series of Vezzoli’s video artworks as the third and final phase of the artist’s international retrospective called “The Trinity.” However as the church was being dismantled, a passerby complained to the Ministry of Culture, effectively stopping the dismantling and export of the church. Vezzoli then found himself being investigated for criminal conduct, with prosecutors examining whether to charge him with trying to export items of artistic and cultural value without the proper authorization, a serious crime in Italy that carries a fine or jail sentence of up to four years.
Vezzoli, represented by Jacobacci Associates attorney Massimo Sterpi, alleges he acquired the church with the blessing of the town’s mayor, and that in an examination of the estate in 1988, the regional superintendent had not found the church to have any cultural value as a monument. Further, Vezzoli contends that the roofless church was falling downhill, and that “[w]e almost felt we were doing some good” by re-erecting and repurposing the church at MOMA PS1. No matter the outcome of the investigation, it is too late for the MOMA PS1 exhibit, which had to be canceled. Though Vezzoli’s project was certainly unconventional (not only for national heritage reasons but religious ones as well), one cannot help but ask what would’ve been better, leaving the forgotten structure in its state of decay until it almost inevitably collapsed or allowing a renowned albeit provocative Italian artist tour it in some of the most notorious museums in the world?
It is undeniable that today Italy is suffering from a lack of funds, and neither government funding nor private donors are able to keep up with demands of restoring and preserving Italy’s rich art and cultural heritage. Yet despite the budget crunch, Italy still appears to be monitoring the international trafficking of its cultural heritage. Most recently, Italy demanded the immediate return of about 700 ancient objects, ranging from jewelry to sculptures that were part of the private collection of now bankrupt British antiquities dealer Robin Symes. The Italian government believes that these items were taken from Italy illegally. The accounting firm BDO was planning on selling off Symes’s collection in order to pay taxes owed by Robin Symes Ltd., but Italy has warned that if it does not receive detailed information about the status of each of the 700 items, that it may sue BDO in the United Kingdom under the Dealing in Cultural Offenses Act. Though the importance of a nation monitoring the illegal trade of its antiquities cannot be denied, one cannot help but wonder how much a potential international lawsuit would cost the already cash-strapped Italian government, and given the examples of “L’Arte Aiuta l’Arte,” the Colosseum, and Pompeii, whether Italy would even have the funds necessary to ensure the antiquities were properly cared for were they to eventually acquire them.
*About the Author
Nora Choueiri, is a third year law student at Fordham University School of Law interested in art, cultural heritage, IP and international law, and is currently a legal intern at the Samuelson-Glushko Intellectual Property and Information Law Clinic. She may be reached at email@example.com.