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Peter Paul Biro’s Libel Case Against Conde Nast Dismissed

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Peter Paul Biro

This Thursday, on August 8, 2013, New York Federal Court Judge J. Paul Oetken dismissed Peter Paul Biro’s libel case against Conde Nast and several other media parties.  Biro brought a $2 million claim against Conde Nast after they published a 16,000 word article in The New Yorker about Biro, titled “The Mark of a Masterpiece: The Man Who Keeps Finding Famous Fingerprints on Uncelebrated Works of Art.”

Judge Oetken discharged Biro’s claim on the grounds that he failed to prove “actual malice,” which according to his interpretation “does not simply connote ill will or spite” like one would hear in a schoolyard.  Yet, must imply “deliberate or reckless falsification.”

Oetken wrote in his opinion: “Not only has Biro failed to provide factual allegations rendering it plausible that the New Yorker Defendants acted with actual malice, but there is evidence in the record suggesting that it is implausible that they acted with the requisite intent — most notably, the Grann Article itself.”

The New Yorker issued a statement noting: “We are delighted that the judge dismissed this meritless lawsuit against David Grann and Conde Nast. We have always maintained complete confidence in David’s meticulous reporting for his July 2010 piece, ‘The Mark of a Masterpiece.’ It is a brilliant piece of journalism and, as the Judge noted in his opinion, the article ‘appears to be the product of an enormous amount of careful and diligent research.'”

For our previous coverage visit and a more detailed analysis visit: “What’s in a Name?” Peter Paul Biro v. Conde Nast for Defamation

Sources: “Judge Rejects Art Expert’s New Yorker Lawsuit,” ArtINFO, August 2, 2013; “Forensic Art Expert’s Libel Case Against New Yorker Magazine Dismissed,” The New York Times, August 2, 2013.

What’s in a name ‘Borghe$e’?

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Coat of arms of the House of Borghese

Depending on one’s background and taste, ‘Borghese’ is associated with different things: Italian papal history, art collection in Rome, Napoleon’s sister, cosmetics, reality show “The Bachelor” and, now, an expensive legal suit Borghese Trademarks Inc. et al v. Borghese et al, 1:10-cv-05552-JPO over who has the right to be associated with this old Italian surname.

The dispute can be traced back to Princess Marcella Borghese, mother and grandmother of the Defendants and the founder of a cosmetics line now-owned by the Plaintiffs. The issue in dispute is who may use the name and the family history for marketing purposes.

In the 1950s, Princess Marcella co-founded a Borghese, Inc. As reported in the New York Times, “For decades, the Borghese family and the Borghese cosmetics business coexisted with little dispute.” In 1976, the rights, title and interest in the Borghese cosmetics brand, including the use of the words and phrases ‘Borghese’ were purchased by Revlon. Princess Marcella died in 2002. Her heirs, namely her son Francesco and her grandson Lorenzo, started their own beauty product lines for humans and their pets, under unrelated names, including ‘Orlane,’ ‘Elariia,’ ‘La Dolce Vita by Prince Lorenzo Borghese.’ They were however trying to capitalize on their lineage Current owners of the Borghese’ trademark warned Lorenzo that he should stop “causing any false impression in the marketplace that there is a connection or relationship between yourself and Borghese Inc. and our cosmetics products.”


Borghese Defendants.

Trademark law is intended to prevent consumer confusion, thus infringers of valid trademarks may be prohibited from using them. There are ample cases finding in favor of trademark holders, particularly those who’s personal names are trademarked, for example Donna Karan New York or Disney Style. However, this case is of particular interest because the purported infringers are descendants of the noble family and they do bear the actual name of Borghese.

The question is which connection would be sooner presumed Lorenzo’s with the cosmetics company founded by his grandmother, or the company’s connection to the Marcella’s family. Reportedly Marcella’s heirs have already spent about $4 million in legal fees on the case that was filled in 2010 and has yet to come to trial. Are the consumers to think that a perfume line marketing for any other name would give off a different odor?

Source: The New York Times.

Lift on Ban for Posthumous Dan Flavin Sculptures Raises Questions As To The Artist’s True Wishes And The Effect On The Present Market For His Works

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The estate of Dan Flavin, contemporary artist known for his florescent light sculptures, has reversed its position on the production of posthumous versions of the artist’s fluorescent light sculptures. Until 2007, the estate did not manufacture unrealized editions.

Flavin’s process for creating works has directly impacted the way the market functions for them. He generally conceived his sculptures in editions of three or five, but would wait to create individual works until they had been sold to avoid unnecessary production and storage costs. As a result, his sculptures existed as drawings or exhibition copies until they were sold. The artist left behind more than 1,000 unrealized sculptures when he died in 1996. If produced, these could be worth tens (if not hundreds) of millions of dollars.

Stephen Flavin, the artist’s son and executor of the estate, explained the shift: “At the time, I thought that limiting the number of works in the world to what Dan sold during his lifetime, and had certificates for, actually simplified matters.” According to Stephen and reported by The Art Newspaper, two major factors contributed to the decision to lift the restriction. First, a 2004 retrospective of the artist’s work at the National Gallery of Art in Washington, DC created renewed interest in public interest. Second, the estate’s plan of opening a museum dedicated to the artist fell short due to funding shortages.

Since lifting the ban, the estate has sold more than twenty works, including the Hirshhorn Museum and Sculpture Garden, the Stedelijk in Amsterdam, and Glenstone, the private museum in Maryland.

This case raises interesting questions of whether the artist’s wishes are truly being honored and what effects this shift will have for the artist’s market.

It is unclear whether the new policy is in keeping with the artist’s wishes. During the 1980s, Flavin indicated that he was not interested in posthumous production. “I would like to leave a will and testament to declare everything void in my death, and it’s not unrealistic,” Flavin said in a 1982
interview. On the other hand, others say the artist was not clear. “As far as I know… he refused to discuss what would happen [after his death],” Michael Govan explained, director of the Los Angeles County Museum of Art, who co-authored Flavin’s catalogue raisonne. Further, Stephen explained, that his father did not address posthumous editions of his works in his will.

Also still up for debate is what effect the estate’s decision will have on the existing market for the artist’s work. This is reminiscent of an issue raised at the end of 2012, when the Andy Warhol Foundation decided to sell its collection of Warhol’s works, releasing many new pieces into the market and making dealers, auction houses, and collectors alike uneasy as to the effects this decision would have on the value of their works. In Flavin’s case, Govan believes that a split will develop between the posthumous pieces and the ones made when Flavin was alive. He guesses that “if you own a 1960s mercury Flavin fixture, which is an artifact of the time with a perfect certificate, the market is going to decide it is more valuable.” On the other hand, institutional buyers are less likely to be concerned with a work’s resale value. Evelyn Hankins, a curator at the Hirshhorn explained that for conceptual artists like Flavin “the object itself isn’t what you are acquiring… the concept is what matters.”

Source: The Art Newspaper

Dinosaur Skeleton Returns to Mongolia

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By Peninah Petruck

This May, a Tyrannosaurus Bataar skeleton, nearly complete, arrived home in Mongolia. This first ever cultural repatriation to Mongolia is the stuff of a film caper, including an arrest for international smuggling, possession of stolen property, and making false statements. See our original coverage in “Fossils Dealer Wants his Dinosaur Skeleton Back.”

The good guys are: Preet Bharara, the Southern District’s US Attorney, John Morton, the US Immigration and Custom Enforcement’s (ICE) as well as Tsakhia Elbegdorfj, Mongloian President; the villain is Eric Prokopi, a Florida collector-dealer, now facing up to seventeen years in prison and a $250,000 fine. As part of a plea agreement, he consented to the forfeiture of the Bataar skeleton as well as other fossils (two other Bataars, and Sauroluphus and Ovriaptor skeletons). The Bataar is 70 million years old, but its recent travels began when paleontologists discovered it in the western Gobi Desert, somewhere between 1995 and 2005.

In March, 2010, Prokopi and his co-conspirators arranged for the skeleton to be imported to the US from Great Britain. Its import documentation contained several false statements as to its actual description, place of origin, and value. Before its scheduled sale by a Texas based auction house, a Texas district court granted the Mongolian government a Temporary Restraining Order, which prohibited the Bataar’s auction, sale or transfer. But the sale went through, (for over $1,000,000), contingent on the outcome of any court proceeding filed on behalf of the Mongolian government. 

In May, 2012, President Elbegdorfj requested that the Southern District’s US Attorney, file for a forfeiture of the Bataar, a “rare national treasure.” And in June, in response to the Attorney’s civil forfeiture action, the court issued a warrant to ICE to seize the skeleton. Finally, this February, Judge Kevin Castel entered a judgment for forfeiture of the skeleton and its return to Mongolia. And during a special ceremony (held near the United Nations in New York City) the US handed over the Bataar to the Monglian government, which plans to establish a museum to showcase the Bataar and other recently recovered fossils.

The original verified complaint seeking the Bataar’s forfeiture was filed under 18 U.S.C. § 45 and 981(a)(1)(c); and 19 U.S.C. §1595. 18 U.S.C. §545 states: “merchandise introduced into the United States in violation of this section…. shall be forfeited.” That complaint alleged claims for forfeiture, not only against Prokopi’s Bataar, but also for an Hadrosaur skeleton, offered for sale at the Chait Gallery; an Oviraptor matrix, recovered from a home in Gainesville, Florida; another Hadrosaur skeleton, recovered from a barn in O’Brien, Florida and; an Oviraptor, recovered from a residential dwelling in Archer, Florida. Included in the allegations were references to Mongolian law, its cultural heritage and its criminal laws, which prohibit personal ownership of items of cultural significance. Also the allegations established probable cause for issuing the warrant, stating that the Gobi desert is a “fertile source of dinosaur relics,” and that the fossils were stolen from Mongolia. The amended complaint cited paleontological reports which found unequivocally that the Bataar was from Mongolia. Prokopi and his fellow defendants chose not to answer the complaint.

Apparently, the investigative work of the ICE as well as the forfeiture unit of the US Attorney’s office was irrefutable. No wonder, President Elbegdorfj stated: “Our two countries are separated by many miles, but share a passion for justice and a commitment to putting an end to illegal smuggling.”

Sources: Press Release, May 6, 2013 S.D.N.Y.; Verified Complaint, 13 CV 0857; Verified Complaint, 12 CV 4760; “US Gives Dinosaur Back to Mongolia,” May 6, 2013, phys.org.

Order of Business At Auction, Red Flag or Paddle?

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Steven Brooks, a collector of Old Masters, says that a painting he bought from Sotheby’s for £57,600 in 2004 (about $90,000 today) is worthless because it was once owned by the war criminal Hermann Goering, and might have been looted by the Nazis.  The painting, Allegorical Portrait of a Lady as Diana Wounded by Cupid, is by the 18th-century French artist, Louis-Michel van Loo. The Goering connection came to light in 2010, when Brooks sought to sell the painting at Christie’s. When Christie’s specialists discovered that Goering had bought the work in 1939, Christie’s refused to accept it for auction, citing concerns about being able to convey good title.

In a complaint filed against Sotheby’s in California on March 21, Brooks alleges that Sotheby’s should have researched the provenance and informed potential buyers that the work had been owned by Goering; that the Goering connection creates “a cloud on title” that renders the painting unsalable and without value; and that Sotheby’s refuses either to put it up for auction or refund his money.

The case is unusual in many respects.  First, it is standard practice for auction catalogues to contain Conditions of Sale, Terms of Guarantee, and Glossaries of Terms.  A typical* Sotheby’s catalogue from 2001 states, under Conditions of Sale:
The following Conditions of Sale and Terms of Guarantee are Sotheby’s, Inc. and the Consignor’s entire agreement with the purchaser relative to the property listed in this catalogue…

By participating in any sale, you acknowledge that you are bound by these terms and conditions.
      1.     [A]ll property is sold “AS IS” without any representations or warranties by us or the Consignor as to merchantability, fitness for a particular purpose, the correctness of the catalogue or other description of the…provenance…of any property…and no statement anywhere, whether oral or written,…shall be deemed such a warranty, representation or assumption of liability.

Thousands of Artifacts Recovered in Canadian Home

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On January 25, 2013 the Royal Canadian Mounted Police in Halifax Region (RCMP) posted an article on their website seeking help from the public to identify a number of items that were seized from a residential home in Fall River, Nova Scotia.

Also in January, in an interview with Michael Moosberger, Manager at the Archives and Special Collections at Dalhousie University Library and accompanying article, CTV News reported that the items were seized after RCMP Officers had stopped John Mark Tillman, in order to ensure that he was “complying with court-imposed conditions” stemming from a previous unrelated incident. It was this stop that led to the discovery of a rare letter, dating back to 1758, written by the British General James Peter Wolfe (1727-1759). The letter, addressed to Wolfe’s uncle, is dated just days before the siege of Louisbourg and describes plans for this important military offensive.

After discovering the Wolfe letter, police then searched Tillman’s house in Fall River, where, as described by reporter Kayla Hounsell, they discovered over a thousand historically important and valuable items including “rare books, documents, paintings and antiques” which had been stolen from various institutions including “libraries, museums and personal collections.” The estimated value of the stolen items at that time was about $1 million.

In the interview, Moosberger confirmed that Tillman spent much of his time in the Archives of the University (as well as at other institutions), posing as a researcher. He was well known to many, including Moosberger himself.

In March 2013, CBC News reported that another individual had been arrested in the Tillman case. What led police to the second man was a stolen letter written by the first President of the United States, George Washington, dating prior to the American revolution. It was confirmed that this letter, like the one written by General Wolfe, also came from the Archives collection at Dalhousie University.

So far, pursuant to the Canadian Criminal Code RSC 1985, c C-46, Tillman has been charged with numerous counts including possession of stolen property, theft and trafficking in stolen property.

Theft is defined in section 322(1) of the Code and its punishment determined based on whether or not the amount stolen exceeds five thousand dollars pursuant to section 334. If the theft is over five thousand dollars, the penalty is a maximum of ten years imprisonment, while the penalty for theft under five thousand dollars is either a maximum of two years imprisonment based on subparagraph 334(b)(i) or (ii) a summary conviction. The same sanctions apply to those convicted for the section 354 offence, namely, possession of property obtained by a crime based on section 355 of the Code. In the case of trafficking property obtained by crime (sections 355.2 and 355.4), the maximum imprisonment for subject value exceeding five thousand dollars is fourteen years based on paragraph 355.5(a), and a maximum of five years or summary conviction based on subparagraphs 355.5(b)(i) and (ii) respectively, if the value is under five thousand dollars.

Unfortunately, Tillman’s case is not unique. Canada has become infamous for being a “dumping ground” for the international black market of stolen art and cultural heritage.

In 2011, Joshua Knelman, journalist and author of Hot Art: Chasing Thieves and Detectives through the Secret World of Stolen Art wrote an article for the Globe and Mail that highlighted the evolution of the only art theft investigation unit in Canada, located in Quebec. In the article, Knelman estimated that in Quebec alone, the “crimes related to the black market are worth about $20-million annually;” and interestingly, “statistics” were not available for the other provinces. Further, he reported that between the years of 2004-2007, the Quebec unit (comprising of three investigators at the time that the book was written) opened 300 new cases.

Art theft is not what most of us fantasize it to be, à la Thomas Crown Affair, as per an interview with Knelman. Rather, there is dense criminal activity related to art theft including organized crime groups – such as the Hells Angels biker gang – using art as a “criminal currency” and for the purpose of money laundering.

Knelman noted that the largest art theft in Canadian history remains the 1972 museum heist in Montreal at the La Musée Des Beaux Arts. That incident saw the disappearance of eighteen paintings, taken by three masked individuals. That taking resulted in a roughly $2 million loss; seventeen of the paintings remain missing. One of the stolen works entitled Landscape with Cottages, was painted by Rembrandt Harmensz Van Rijn (1606-1669), and valued at one million at the time of the theft. It estimated to be worth over twenty times that amount today.

In the past few years, there have been several high profile art thefts across the country including the taking of three works from an art gallery in Toronto’s Yorkville neighborhood in 2012, painted by the Group of Seven artists Frank Johnston (1888-1949) and Arthur Lismer (1885-1969) and Montreal artist Sylvia Lefkovitz (1924-1987). This incident follows a 2011 theft of eleven paintings from a Toronto area gallery (five of them painted by Group of Seven artists).

* * *

In April 2013, CBC News confirmed that Tillman was denied bail and would have to remain in jail until his trial. Further, they reported that the total number of recovered artifacts had reached about 3,000 and that Tillman had already been charged with forty offences. The Crown Prosecutor in the case mentioned that it would be “likely that additional charges will be laid in the future” based on ongoing investigations.

*****

Canadian Criminal Code RSC 1985, c C-46; Dan Phelan, “1972: Art heist at the Montreal Museum of Fine Arts” CBC Digital Archives (4 September 1972), http://www.cbc.ca/archives/categories/arts-entertainment/visual-arts/visual-arts-general/art-heist-at-the-montreal-museum-of-fine-arts.html; Police Seek Public Help in Identifying Stolen Items, Halifax Regional Municipality, N.S. (25 January 2013) Royal Canadian Mounted Police, http://www.rcmp-grc.gc.ca/ns/news-nouvelles/releases-communiques/13-01-25-112503-eng.htm; Kayla Hounsell & Rick Grant “Police Recover Artifacts Stolen from N.S. archives, Province House” CTV News (22 January, 2013), http://atlantic.ctvnews.ca/police-recover-artifacts-stolen-from-n-s-archives-province-house-1.1125074; “Stolen George Washington Letter Leads to Halifax Arrest” CBC News (4 March 2013), http://www.cbc.ca/news/canada/nova-scotia/story/2013/03/04/ns-stolen-artifacts-second-arrest.html; Joshua Knelman, “Police Cracking Down on a Hotbed of Hot Art in Quebec” Globe and Mail (20 September 2011), http://www.theglobeandmail.com/news/national/police-cracking-down-on-a-hotbed-of-hot-art-in-quebec/article594976/?page=all; Anna Maria Tremonti, “The World of Stolen Art” (23 September 2011) CBC The Current,  http://www.cbc.ca/thecurrent/episode/2011/09/23/the-world-of-stolen-art/; Jacques Gallant, “Group of Seven Paintings Stolen from Yorkville Art Gallery” Toronto Star (31 August 2012) http://www.thestar.com/news/gta/2012/08/31/group_of_seven_paintings_stolen_from_yorkville_art_gallery.html; “Man Denied Bail in Stolen Artifacts Case” CBC News (11 April 2013) http://www.cbc.ca/news/canada/nova-scotia/story/2013/04/11/ns-tillman-denied-bail.html; Greg Quill, “Canada Dumping Ground for Stolen Art” Toronto Star (26 March 2010), http://www.thestar.com/entertainment/2010/03/26/canada_dumping_ground_for_stolen_art.html; McMichael Canadian Art Collection, The Collection – The Group of Seven http://www.mcmichael.com/collection/seven/; Galit Rodan, “Group of Seven Paintings Nabbed in Toronto Art Gallery Heist” Toronto Star (11 July 2011) http://www.thestar.com/news/crime/2011/07/11/group_of_seven_paintings_nabbed_in_toronto_art_gallery_heist.html;  Douglas & McIntyre “Joshua Knelman” http://www.dmpibooks.com/author/joshua-knelman; Sylvia Lefkovitz http://sylvialefkovitz.com/index.php.

Attorney’s Appeal for Intervention Against Museums Addicted to Nazi Looted Art

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In an article with a cheeky title and a noble purpose, Raymond J. Dowd, Partner with Dunnington Bartholow & Miller LLP argues that the procedural or “technical” defenses, such as the statute of limitation or laches, should not be available in disputes involving art looted during World War II. He specifically targets art works of European provenance that entered the United States after 1932 and were created before 1946.

Statute of limitations imposes a term limit to bring a claim for a specific cause of action, here replevin or conversion (money for the stolen object or recovery of the object itself). Laches is a defense for defendants who may be prejudiced by plaintiff’s efforts to recover, in this instance stolen or lost art. Over the last decade, museums and collectors have been turning to technical defenses to avoid reviewing facts surrounding ownership of art displaced during World War II.

A PDF of Dowd’s “Nazi Looted Art and Cocaine: When Museum Directors Take it, Call the Cops is available from Rutgers J. Law & Religion.