The following are legal cases involving art that were first published in our newsletter. If you would like to subscribe to receive these updates occurring in the art law world, please click here. [As of 12/22/16, IT]
From Newsletter December 2017
- Halperin v. Gfoeller, 657184/2017 (Sup. Ct. NY Cnty. Dec. 3, 2017) After defendant refused to refund the sale price, a complaint was filed on behalf of an Israeli resident alleging breaches of contract and express warranty based on a 2008 sale of a painted wooden mask attributed to Juan Gris. (IT)
- Catlin, The Estate of Thomas Lopresti and William Beauty v. Hogan and Christie’s, Inc., 160370/2017 (Sup. Ct. NY Cnty. Nov. 21, 2017) Plaintiffs allege tortious activities on behalf of the defendants in relation to a unique numbered Andy Warhol screen print “Electric Chair.” While Hogan was a co-owner of the artwork, he consigned the work to Christie’s without notifying the other owners. The work was sold in May of 2006. According to the complaint, the other joint owners of the work learned of the sale in 2016. (IT)
- Tobin v. The Rector, Church Wardens, and Vestrymen of Trinity Church, in the City of New York, 17 Civ. 2622 (LGS) (S.D.N.Y. Nov. 14, 2017) Judge Schofield dismissed the Visual Arts Rights Act (VARA) violation complaint brought by an artist against the Trinity Church and others because, in 2004, the artist transferred all of his rights, including copyright in the contested work, to Trinity. Additionally, Judge Schofield found that “simply relocating The Trinity Root does not by itself constitute distortion, mutilation or modification under VARA.” As to the site-specific nature of the art, the court applied the Seventh Circuit decision in Kelly v. Chicago Park Dist., 635 F.3d 290 (2011), to find that unless gross negligence can be established, site-specific work is not protected under VARA. Order is available here. (IT)
From Newsletter November 2017
- Chowaika & Co. Fine Arts Ltd., Case No. 17-13228 (MKV) [Carpenter Fine Violins and Collectibles, LLC v. Ezra Chowaiki and David E.R. Danger, 65929/2017 (Sup. Ct. NY Cnty. Nov. 15, 2017), RH9 Group, LLC et al v. Chowaiki, 656930/2017 (Sup. Ct. NY Cnty. Nov. 15, 2017), Leser v. Chowaiki & Co. Fine Art Ltd. et al, 656870/2017 (Sup. Ct. NY Cnty Nov. 12, 2017)]
Three lawsuits filed agains Chowaiki & Co. Fine Art corporation have precipitated the filing for bankruptcy by the private gallery and art advisory service founded in 2004 by Ezra Chowaiki, now accused of defrauding clients. The cases are stayed pending the US Bankruptcy Court for S.D.N.Y. decision.
- Joshua Liner Gallery v. Kagan, 656849/2017 (Sup. Ct. N.Y. Cnty. Nov. 9, 2017) Plaintiff, a New York gallery, alleges fraudulent concealment of sales of paintings directly through Defendant’s studio in violation of the artist-gallery agreement, as well as a failure to create and deliver a painting to the Gallery in consideration of certain sail goals, and other grievances. The complaint reveals that the Gallery has been acting as the Artist’s exclusive agent for the sale of artworks produced since 2014, and was entitled to a commission of 50% on any artwork Kagan sold. Kagan’s art is slated for exhibit on at the Virginia Museum of Contemporary Art in 2019.
- Berkshire Museum Lawsuits: Two groups of plaintiffs — members of the Berkshire Museum and heirs of Norman Rockwell — filed two lawsuits in an attempt to enjoin the deaccessioning of 50 artworks in a planned November 13th Sotheby’s auction. The heirs of Norman Rockwell filed a complaint arguing that the deaccession “violates the museum’s establishing statute, promises made to donors and the fiduciary obligations of its trustees.” The Massachusetts Attorney General, Maura Healey, supported the Rockwell plaintiffs in a filing. The second complaint, brought by members of the Museum, argues that the museum has reneged on its obligations to its supporters by putting the works up for auction. The theory is that because, under Massachusetts law, members of a nonprofit are treated like shareholders in a corporation, the relationship between the corporation and its governing charters and bylaws must be treated like a contract. A hearing was held on November 1, 2017, and the papers in support can be found here. The Court denied the request for an injunction, allowing the planned November 13th sale to proceed. (JB)
- Schmitt v. Artforum International Magazine Inc. et al, 159464-2017 (Sup. Ct. NY Cnty. Oct. 25, 2017) — Curator and Art Fair Director Amanda Schmitt, along with eight other women, sued Artforum and Knight Landesman over his alleged sexual harassment. The complaint accuses the publication of allowing Landesman’s sexually abusive behavior toward multiple women to occur without consequence. It also claims that Defendant slandered Schmitt and threatened retaliation against current and former employees who might speak out against the harassment to the authorities or the press. The plaintiff seeks compensatory damages of $500,000 plus attorneys’ fees and punitive damages. (JB)
- Mugrabi v. Mana Contemporary, 159407/2017 (Sup. Ct. NY Cnty. Oct 23, 2017) The Mugrabi family sued Mana Contemporary, which stores works for the dealer family, for preventing the removal of art works from its facility due to unpaid fees. Since the filing of the complaint, the court ordered Mana to release some of the works in exchange for a $1 million payment by the Mugrabis. (JB)
- Bauer v. Toll, TGI Paris (7 nov. 2017, n° 17/58735) A High Court in Paris ruled to restitute a Pissarro painting, “Picking Peas,” to the heirs of a Jewish art collector whose art was looted by the French Vichy government. According to the holding, an American couple, Bruce and Robbi Toll, who lent “Picking Peas” to an exhibition at the Musée Marmottan Monet in Paris did not act in bad faith when they bought the painting from Christie’s auction house; the court also did not award the Toll’s any compensation for their loss. The painting will continue to be held in escrow in the D’Orsay pending appeal. Insurance values the painting at over a million dollars. (JB)
From Newsletter October 2017
- Apperson v. City of St. Louis, Case No. 17-cv-2461, (E.D. Mo. Sep. 22, 2017) This fall, MacArthur Justice Center filed a lawsuit alleging that St. Louis officials are improperly arresting, jailing, and prosecuting protesters. The suit claims that the arrests violate First Amendment rights of free speech, that the detentions violate the Fourth and Eighth Amendments, and a general due process violation. The suit also brings analogous state-law claims. The suit seeks monetary damages and an injunction against the continuance of these alleged practices. The ACLU filed a parallel lawsuit against alleged police misconduct: using chemical weapons, interfering with video of police activity and violating due process. (JB)
- Sotheby’s v. Nature Morte LLC and Anatole Shagalov, 655636/2017 (Sup. Ct. N.Y. Cty. Aug. 31, 2017) Sotheby’s filed a complaint in New York State Court seeking to recover $6 million dollars from the winning bidder of an artwork at a recent Sotheby’s auction. Anatole Shagalov signed a personal guarantee obligating him to an immediate payment for any piece of artwork that Nature Morte LLC placed the highest bid on at Sotheby’s auction. Nature Morte placed the winning bid of $6 million dollars, but allegedly failed to pay for the artwork. Sotheby’s seeks to recover the $6 million dollars plus interest and fees from Nature Morte LLC and Anatole Shagalov arising out of the breach of the personal guarantee. The Answer was filed on October 11th. (JB)
- Bouvier v. Adelson, cv 16-3655, (2d Cir., Aug. 28, 2017) – On August, 28, 2017, a panel for the Second Circuit held that Section 1782 discovery is available for use in a proceeding in a foreign or international tribunal even when the applicant is not making a claim for damages. The court also held that once an applicant has obtained discovery under Section 1782 for one foreign proceeding, the applicant may use that discovery in other foreign proceedings. The case arose out of the ongoing dispute between Russian Oligarch, Dmitry Rybolovlev and Swiss art dealer, Yves Bouvier. (JB)
- Thome v. The Alexander & Louisa Calder Found’n, 152721/2017 (Sup. Ct. N.Y. Cty. Aug. 22, 2017) – Joel Thome, owner of a theatrical stage set that is allegedly the last artwork by Alexander Calder, filed a new lawsuit against the Calder Foundation, seeking $2 million dollars in damages based on three causes of action: (1) tortious interference; (2) interference with prospective advantage; and (3) product disparagement. (JB)
- Aboutaam v. Dow Jones & Co., (Supreme Court of the State of New York) On July 17, 2017, Hicham Aboutaam filed a libel suit against the Wall Street Journal for an article that reported that countries were investigating him for allegedly trafficking in artifacts looted by ISIS. (JB)
- Moi v. Chihuly Studio, Inc., 17-2-14150-0 SEA, (Sup. Ct. WA, King County, Jun. 17, 2017) While Chihuly’s glass sculptures are on display at the New York Botanical Garden, Michael Moi sued his former employer, Chihuly Studio, seeking a declaratory judgment of co-authorship and co-ownership of some of the paintings produced by Dale Chihuly. Other causes of action are accounting of revenue and imposition of constructive trust, as well as an injunctive relief under Visual Artists Rights Act. (JB)
- Weber v. Haerle, (Switzerland, 2017) Heidi Weber, long-time friend and collaborator of Le Corbusier, is suing Peter Haerle, the Culture Director of Zurich, for defamation. In 1964, Weber assisted Le Corbusier in the co-founding of his lakefront museum in Zurich. The construction permit the two obtained required that 50 years later, the property must be turned over to the city of Zurich. Just two years past the expiration of the original building permit, the city changed the name of the institution from the Centre Le Corbusier Heidi Weber Museum to Pavillon Le Corbusier. Weber and her son have spoken out on the grave injustice they believe is being perpetuated by the local government. Weber is so enraged that she removed her collection of Le Corbusier artifacts that she had loaned to the city. On July 5th, the Court authorized the case to proceed. (WR) (updated w/ cases JB)
- Simon de Pury v. Ruedi Staechlin, High Court (UK, Eng. 2017) Recorded as the most expensive work of art ever sold, Paul Gauguin’s “Nafea Faa Ipoipo (When Will You Marry?)” (1892) was sold for $210 million, placing it behind de Kooning’s “Interchanged” (1955) and Cezanne’s “The Card Players” (1890-5) as the third most expensive artwork ever known to be sold. This revelation came to light on June 29th, at the United Kingdom High Court when Simon de Pury sued to collect a hefty commission — $10 million — he argues is owed to him and his wife Michaela under a “gentleman’s agreement.” De Pury claims he and Michaela acted as middlemen in negotiating the sale of the painting from childhood friend Ruedi Staechlin to the Emir of Qatar. The de Purys and Staechlin argue conflicting accounts of the nature of Simon and Michaela’s involvement in this transaction. Staechlin’s attorney alleges that the de Purys engaged in a breach of fiduciary duty by misrepresenting prices and “pestering” Mr. Staechlin, which de Pury denies. (WR/JB)
- T. v. T., v. 6 Ob 145/16s (Austria, 2017) On June 27th, the Regional Court for Civil Law in Vienna found the 2012 contracts establishing the Franz West Private Foundation—initiated by those non-family members with a financial stake in West’s sales and signed by West on his deathbed—to be improperly executed and incapable of being upheld. The Foundation alleged that it was the rightful owner of West’s assets and royalties, rather than his now-deceased wife and their two children. The Court’s argument turned on the finding that the Foundation’s paperwork was so sloppily drafted that material elements of the agreement—including a formal acceptance—were absent. In line with the Court’s ruling, the remaining unsold artwork will now be given to West’s children and their guardian… so long as the Foundation does not appeal the Court’s decision. (WR/JB)
From Newsletter July 2017
- Pape v. LG Electronics USA Inc., 17-cv-04925 (S.D.N.Y. July 18, 2017) Paula Pape, daughter of late Brazilian artist Lygia Pape, brought suit against LG Electronics, Inc. on the premise that the Seoul-based electronics company is using images of her mother’s 2003 sculpture “Tteia 1, C” in the packaging and promotion of its new product, the K20 V mobile phone. The cultural institution responsible for managing the reproduction rights of Lygia Pape’s artwork has denied LG’s request to use images of the artist’s work multiple times. Paula Pape alleges that, despite these rejections, LG went forth with its original advertising campaign plan and used the images without permission. This case comes at an interesting time: a retrospective spanning five decades of the artist’s career at the forefront of Brazilian modernism just closed at the Met Breuer. (WR)
- Noland v. Michael Janssen Gallery Pte., Ltd et al, 1:17-cv-05452 (S.D.N.Y. July 18, 2017) Artist Cady Noland filed suit for copyright infringement and violation of the Visual Artists’ Rights Act against a group of dealers, collectors, and galleries. Noland claims that the defendants were involved in the decision to hire a conservator to refurbish her work “Log Cabin” (1990), without consulting her. She alleges that the refurbishment carried out by the defendants exceeded that which is considered a normal restoration. Her legal counsel argues that because the conservator severely altered “Log Cabin” –by replacing the original wood that had rotted with new, protected wood–the work now stands as a copy of the original work. In recent years, Noland has received much attention for her sensitivity with regard to restoration and has gone as far as to disavow artworks. In the current suit, Noland is seeking both the destruction of “Log Cabin,” as she believes it no longer represents a genuine product of her creation, and that the defendants cease circulating images of the work. (WR)
- Tierney et al v. Camuto Consulting, Inc. et al., 2:17-cv-04936 (C.D. Cal. July 5, 2017) Street artists Joseph Tierney, Cary Patraglia, Spencer Valdez, and Keith Rowland have brought suit against fashion designer Vince Camuto for using their work in his Spring/Summer 2017 ad campaign without seeking the artists’ permission. This copyright infringement suit was fueled by the fact that, beginning in February 2017, Camuto’s ad campaign featuring the artwork was displayed on a variety of platforms–social media, news media, both Vince Camuto and department store websites, and within Vince Camuto stores. Tierney, Patraglia, Valdez, and Rowland seek reputational, future, and punitive damages. This case is one of several others centering around retailers’ improper usage of graffiti artists’ public murals. (WR)
- Berkowitz, et al., v. Christie’s, 652549/2017 (Sup. N.Y. May 11, 2017) Co-trustees of the Southern Trust brought action against Christie’s alleging that the auction house, entrusted with the sale of Elizabeth Taylor’s jewelry, violated terms of the consignment agreement as well as breached fiduciary duty when it rescinded the sale of the so-called Taj Mahal diamond. Complaint available here. (IT)
From Newsletter June 2017
- Sotheby’s Inc. v. R.W. Chandler, LLC et al., 1:16-cv-09043 (S.D.N.Y. 2016) In 2013, three New York art dealers arranged through Sotheby’s an $80 million private sale of “Salvator Mundi,” a rediscovered painting by Leonardo da Vinci. Shortly thereafter, they learned that the buyer, Swiss art dealer Yves Bouvier, resold the painting for $127.5 million to Russian art collector Dmitry Rybolovlev. The dealers, hoping to recover the difference, sought legal action against Sotheby’s on the basis of fraud. Rybolovlev, represented by Daniel J. Kornstein, also reportedly questioned the role of Sotheby’s in the valuation of the painting. The question at hand revolves around whether Sotheby’s representative Samuel Valette knew about Rybolovlev’s interest in the artwork. The complaint alleged that weeks before the Sotheby’s sale, a meeting was organized by Samuel Valette for inspection of the painting at a Central Park apartment owned by a Rybolovlev family trust.
Sotheby’s (represented by Marcus Asner and Arnold & Porter) filed a preemptive lawsuit explaining that the discrepancy in prices represents a distinction between fair market values and retail replacement values for insurance purposes, which are typically higher. The case was dismissed with prejudice in February 2017.
Complaint is available here.
- McKenzie et al v. Fishko et al, No. 1:12-cv-07297 (S.D.N.Y. 2015) Defendants’ motions for summary judgment were granted in the case between Plaintiff, an art collector who alleged fraud and breach of contract, among other causes of action, against Defendants, Forum Gallery and its owners. According to the complaint, Forum Gallery was employed to represent Plaintiff and make purchases on his behalf. McKenzie “allege[d] that Defendants breached their obligations by manipulating or otherwise falsifying the prices to which the discounts were applied, thereby increasing Defendant’s’ profits”. However, McKenzie failed to allege sufficient facts in support of these claims. After the court granted Defendants’ motion for summary judgment on most claims, the case was voluntarily dismissed in 2015. Read Memorandum and Opinion and order here.
- The State of Georgia v. William Lowe, d/b/a Lowe Galleries, Inc., The Lowe Gallery, or Bill Lowe Gallery, 123031191 (Ga. April 2017) Gallery owner Bill Lowe plead guilty to using money he should have paid to artists for his own needs. Lowe used the proceeds from consigned art sales for personal uses, such as making mortgage and property payments. The stolen funds amounted to over $500,000. In court, Lowe stated: “I acknowledge that artists relied upon me to receive payment from the proceeds of sales from the artwork.” He went on to say that he was “glad” to make the artists “whole again.” His sentence includes a ten-year probation to one count of felony theft by conversion, 750 hours of community service, and restitution to the amount of $256,514.92, which was placed in an escrow account to be paid out to the artists. Read Indictment here.
- MCH Swiss Exhibition Basel Ltd. et al v. Adidas America, Inc. et al, 1:17-cv-22002 (S.D. Fla. May 2017) Plaintiff Art Basel has filed suit against Adidas for trademark infringement concerning the use of their mark ART BASEL® on at least 1,000 pairs of sneakers. Adidas produced and distributed a high volume of the infringing sneakers during the annual art fair organized and marketed by plaintiff without asking for or receiving permission. Art Basel claims the infringement has damaged them by diminishing the value of their licensing partnerships as well as the value of their incontestable trademark, and that Adidas’ actions were intentional, committed with full knowledge of Art Basel’s rights. Plaintiff looks to recover injunctive relief, defendant’s profits, damages, and reasonable attorney’s fees. Complaint available here.
- Crile v. Commissioner of Internal Revenue, 9713-10, 29044-11 (US Tax Court Oct. 2 2014) The United States Tax Court ruled that art-related expenses such as relevant travel, materials, and equipment are tax-deductible as professional expenses. The IRS claimed that the artist and Hunter College professor Susan Crile owed $81,000 in unpaid taxes, arguing her art was “an activity not engaged in for profit.” This Tax Court’s ruling reaffirmed the artist’s victory over the IRS by finding that she was in “the trade or business” of being an artist. Read Memorandum of Fact and Opinion here.
From Newsletter May 2017
- Republic of Turkey v. Christie’s, Inc., 1:2017cv03086 (S.D.N.Y. Apr. 28, 2017) A U.S. Court has granted Turkey 60 days to verify that it is the lawful owner of Guennol Stargazer, a 5,000-year-old marble statue originally found in the Gallipoli Peninsula in the Eastern Thrace of Turkey. Upon discovering the statue, Turkey brought action against Christie’s for auctioning Guennol Stargazer in its April 28th “Exceptional Sale” for approximately $14,000,000.
- Thrasher v. Siegel, 2:cv-17-3047 (C.D. Cal. Apr. 24, 2017) Last month a street artist, Monte Thrasher, brought action against Marci Siegel, for ordering the destruction of his mural “Six Heads” without giving the artist the 90 day notice required by VARA. Thrasher claims that Siegel was operating a bar inside the building that “Six Heads” was painted on and that she planned to replace it with a mural promoting her business. The complaint notes that “Six Heads” achieved great renown in the Los Feliz area it occupied since the mid-1990s. Thrasher seeks punitive damages and the opportunity to restore “Six Heads.”
- US v. Erik Ian Hornak Spoutz a/k/a Robert Chad Smith, a/k/aJohn Goodman, and a/k/a James Sinclair (C.D.N.Y. Feb 16, 2017) Michigan art dealer, Erik Spoutz, was sentenced to 41 months in prison for wire fraud charges arising out of his sale of dozens of forged artworks purportedly by renowned postwar American artists such as Willem De Kooning, Robert Indiana, and Joan Mitchell. He allegedly started to sell forged works of art as early as 2005 under various aliases. Despite Spoutz attempt to provenance for the artworks, Assistant U.S. Attorney Andrew Adams declared: “Spoutz falsified a complex series of seemingly original documentation of each piece’s provenance: bills of sale, letters from art dealers, correspondence from prior owner’s estates, etc.” http://theartnewspaper.com/news/michigan-art-dealer-sentenced-to-41-months-for-running-modern-art-forgery-scheme/
- Pulphus v. Ayers, Civil Action No. 17-310 (U.S.D.C. Apr. 14, 2017) A high school student, David Pulphus, whose artwork (“Untitled #1”) won an art competition and was chosen to be displayed in the Congress halls, filed a federal lawsuit because his work was removed from the Cannon Tunnel in the U.S. Capitol Complex, after several Congress members complained about the paintings as being anti-police. The painting depicts a confrontation between police and protesters on the street in downtown St. Louis, and two officers in the forefront have the heads of pigs or warthogs. The lower court denied the plaintiffs’ request for preliminary injunction relating to the retroactive removal of Mr. Pulphus’ artwork. It was found that the painting’s removal from the halls of Congress did not violate the artist’s First Amendment rights. Appeal is anticipated.
- Naruto v. Slater 15-cv-04324, 2016 WL 342231, at *3 (N.D. Cal. Jan. 18, 2016) In January 2016, the U.S. District Court for the Northern District of California dismissed a copyright infringement suit brought by PETA on behalf of a selfie-taking, six-year-old macaque named Naruto. PETA alleged that defendants, a photographer and publisher, unlawfully claim ownership of the photographs that Naruto snapped of himself while playing with Slater’s camera. The Court held that the Copyright Act does not extend standing to non-humans and therefore the case was properly dismissed. On appeal, PETA stands by its original claim that Slater is not the rightful owner of the photographs. Oral arguments are scheduled for July 12, 2017.
From Newsletter April 2017
- The Andy Warhol Foundation for the Visual Arts, INC v. Lynn Goldsmith and Lynn Goldsmith LTD, 1:17-cv-02532 (S.D.N.Y., April 7, 2017) “[To] Protect the Work and Legacy” of Andy Warhol, his foundation brought action against a photographer claiming copyright in the photograph Warhol used to create a portrait of a late pop musician Prince on the theory of fair use. The complaint is available here.
- Anonymous v. Anonymous, 2017 NY Slip Op 02613 (N.Y., April 4, 2017) A husband commenced a matrimonial action on May 6, 2014, claiming separate ownership of tens of millions of dollars’ worth of art, while his wife claims the art was jointly owned and they own four specified works of art purportedly worth a total of approximately $22 million. The parties had a prenuptial agreement but it did not specifically address how the parties should divide their art collection upon dissolution of the marriage. The question presented was whether certain works of art purchased during the marriage were the husband’s separate property or were jointly held. The court held that the fact that the invoice was in the husband’s name alone was not the end of the inquiry: “We conclude that title to personalty cannot be determined by relying solely upon an invoice. In determining title to the artwork in question, all the facts and circumstances of the acquisition and indicia of ownership must also be considered.” More here. ML
- Cohen v. G&M Realty, 13-CV-05612 (FB) (RLM) (E.D.N.Y. Mar. 31, 2017) Earlier in the year, the court ruled that the plaintiff artists in the high profile 5Pointz graffiti art mural case may go to trial, finding that the artists demonstrated they were harmed by the building’s demolition under the Visual Artists Rights Act (VARA). In particular, Judge Block found that the question of “recognized stature” under VARA was clearly a factual one for the jury, which would assess the plaintiffs’ expert’s report and testimony at trial. Defendants’ counterclaim for abuse of process were dismissed. The plaintiffs’ separate claims for conversion, property damage, and intentional infliction of emotional distress were also dismissed. Opinion available here. ML
- Court d’appel [CA] [regional court of appeal] (Versailles, 1e ch., March 24, 2017) Judge Alain Palau ruled against Christie’s auction house, invalidating its 2008 decision to transfer the burden to pay the resale royalty cost from the seller of an art work to the accepting buyer. It is after the sale of the Yves Saint Laurent art collection in the Grand Palais, Paris, in 2009, that the Comité Professionnel des Galeries d’Art (CPGA) and Syndicat National des Antiquaires (SNA) brought a complaint against the Christie’s shifting obligations to the buyer, claiming among other things that Christie’s was gaining a competitive advantage by seeking to charge buyers rather than sellers. In March 2017, the Court d’Appel de Versailles ruled that according to the wording of article L 122-8 of the French Intellectual Property Code, the droit de suite should be paid by the vendor “without exception” and that the clause transferring the resale royalty cost to the buyer in the general condition of sales should be void and with no effect. Christie’s France intends to appeal before the French civil Supreme Court. Decision is available here. ML
- Foyt Jaglom v. Jaglom, 650580/2017 (N.Y., Feb. 2, 2017) An inheritance dispute involving heirs of the art of collector Simon M. Jaglom. His former daughter-in-law brought action seeing to affect title to artworks consigned by Jaglom’s executor. In her complaint, she alleged that the son of the collector consigned the artworks to the auction house in 1994, after the works were gifted to him and that the remaining 15 artworks passed on to his heirs when he died in 1992. In 1994, Michael Jaglom, as executor of the will of his father and co-owner of the gifted artworks, consigned the artworks to the custody of Sotheby’s in NY. The auction house supposedly kept the work in storage since that time without charging them. In 2015, Sotheby’s informed plaintiff that, because of her trustee position in the “Jaglom Family 2012 Art Trust,” it intended to transfer custody of the works to a third-party storage facility. ML
- Cipriani v. Kendrick Lamar Duckworth et al., 1:15-cv-04078 (S.D.N.Y Dec. 2016) This action for copyright infringement lawsuit and related claims brought by Cipriani, the sole author, owner, and exclusive holder of copyrights in a photograph titled “Twins” (“Photograph”), arising from Defendants’ unauthorized use of the Photograph in conjunction with the online video release and commercial promotion of a music recording titled “The Blacker the Berry” was voluntarily dismissed after the parties decided to enter mediation. ML
- Hayuk v. Starbucks Corporation, 1:15-cv-04887 (S.D.N.Y, Jan. 12, 2016) Hayuk, a Brooklyn muralist, was seeking an injunction against the ad campaign of Starbucks and its advertising agency 72andSunny Partners LLC, damages up to $150,000 per infringed-upon painting, and a share of the Mini Frappuccino profits. The suit arose after the advertising agency, despite the refusal of Hayuk, borrowed from her pieces to launch the Frappuccino campaign. It was ruled that the set of works were not substantially similar, even if they share the use of overlapping colored rays: “the elements fell into the unprotectible category of ‘raw materials’ or ideas in the public domain”. Memo and affirming order available here. ML
From Newsletter March 2017
- Reif v. Richard Nagy, 161799/15 (N.Y. App. Div. 2017) Leon Fisher and Milos Vavra, descendants of Holocaust victim Fritz Grünbaum, have sought the restitution of two watercolors, “Woman in a Black Pinafore” (1911) and “Woman Hiding Her Face” (1912) by Egon Schiele, for decades. Reportedly, they brought a new lawsuit in New York State Court in 2017, based on the newly enacted Holocaust Expropriated Art Recovery Act (HEAR). The descendants are claiming that the former case was settled only on “legal technicalities,” while the merits of the argument that the art was looted by the Nazis were not addressed. They now hope that the new Act will persuade the court that there is enough evidence to shows that Fritz Grunbaum was a victim of Nazi art looting. ML
- Estate of Lisa de Kooning v. COMMISSIONER OF INTERNAL REVENUE (Tax, Feb. 28, 2017) On February 28th, the estate of Lisa de Kooning, daughter of Willem de Kooning, the famous Dutch-American abstract expressionist, filed a petition in U.S. Tax Court after the value of the taxable estate was increased by $231 million in a notice of deficiency. In 2013, a statement of value for the artwork was requested by the estates from the IRS’ art appraisal division and the estate submitted an appraisal from Christie’s Appraisals pegging the value of the corpus at $231.4 million before any discounts. After consultations with economic professors, the estate proposed a blockage discount of nearly 60 percent for the paintings and 85 percent for most of the sculptures. The Internal Revenue Service (IRS) refused to apply “blockage discounts” to the value of the artwork. ML
- Estate of Eva Franzen Kollsman v. Commissioner of Internal Revenue, No. 26077-09 (US. Tax Court, Feb. 22, 2017) Decedent died in August 2005 leaving a will. Among the estate’s assets of the deceased there were two 17th-century paintings by Pieter Brueghel the Younger, though there were some questions concerning the attribution of one painting to Pieter Brueghel the Elder. George Wachter, Vice President of Sotheby’s North America and South America, sent the executor a fair market value estimate and a consignment of rights agreement. The estate filed a Form 706, United States Estate Tax Return, reporting the fair market values, as of the valuation date of respectively $500,000 for one work and $100,000 for the other. The Commissioner of Internal Revenue assigned a different value to the paintings and a notice of deficiency to determine the fair market values was issued. During redetermination, the Court rejected Wachter’s valuation and its related arguments: the bad condition of the paintings, the change in market demand, and the uncertainty of the attribution. Instead, the Court took into account the valuation of Respondent’s expert to fix the amount of the fair market values with some adjustments (respectively: $1,995,000 and $375,000) that now have to be declared and paid. ML
- Petrella v. MGM, 10–55834, 10–55853 (9th Circuit, 22 Aug. 2014) On remand from the Supreme Court, the Ninth Circuit rejected MGM’s argument that the license it obtained for the book based on the life of boxer Jake LaMotta and 1973 screenplay on the same subject entitled it to a grant of summary judgment of non-infringement and remanded the case back to the district court. Plaintiff Petrella sued MGM in 2009 for copyright infringement by the film Raging Bull of a 1963 screenplay written by her father. She renewed the copyright in the 1963 screenplay but not in a book or a 1973 screenplay. One of the issues the Ninth Circuit dealt with was whether the book MGM had licensed for Raging Bull was a derivative work of the 1963 screenplay or vice versa. The Ninth Circuit also directed the lower court to determine whether plaintiff was estopped from arguing that the book MGM licensed was a derivative work of the 1963 screenplay. ML
- Fertitta, III et al v. Knoedler Gallery, LLC et al, 1:2014cv02259 (S.D.N.Y, 29 Jan. 2015) In January 2017, District Court Judge Paul Oetken refused to dismiss allegations of an entrepreneur Frank Fertitta against art historian Oliver Wick, a Rothko expert, and two other defendants in a case tied to the December 2011 demise of the renowned Knoedler Gallery of serial allegations for forgeries. Plaintiff Fertitta bought one of alleged fake Rothko paintings at Knoedler Gallery. The Judge upheld the following causes of action: rescission, breach of warranty, and indemnification counts against the art historian Wick. Wick’s lawyer argued for his client’s favor, stating that the Rothko expert reasonably believed the work was genuine. Urs Kraft, whom Plaintiff alleges coordinated the sale on behalf of an nonexistent mysterious “Mr. X”, also faces breach of warranty, breach of contract, fraud, fraudulent concealment, aiding and abetting fraud in the ruling. Also from this ruling, ex-Knoedler employee Jaime Andrades faces the heaviest charges, including violating federal anti-racketeering law and a RICO conspiracy charges. Complaint available here. ML
- Allbritton et al. v. United States, 4:15-cv-00275 (S.D.Tex., 30 Jan. 2015, settled Sept. 2016) Here, the widow of a Texas Tycoon, Joe L. Allbritton, sued the United States for herself and the estate of her husband in Southern District Court of Texas for the IRS to tax the tycoon $40.6 million on the belief he had taken ownership of a treasure trove of art including works by Picasso, Monet, and van Gogh. In her Complaint, Allbritton asserts that her family’s holding company, that IRS’s math is based on a false belief that the corporation distributed artwork and antiquities worth $139 million to late Joe Allbritton in 2005 and that it also paid the Allbrittons $364,000 to insure the art from 2005 to 2008, payments that contribute “taxable dividends.” Ms. Allbritton asserts in her Complaint that the company never transferred ownership of the art to Joe in 2005 and sues the IRS for a full refund of $40.6 million. On Sept. 30, 2016, it was announced that Allbritton’s estates and the IRS reached a settlement. ML
- Green v. Nat’l Gallery of Art, London, 1:16-cv-06978 (S.D.N.Y. Sep. 7, 2016) The purported heirs to a Matisse painting, “Portrait of Greta Moll”(1908), are suing the National Gallery of Art, London, for its possession and $30 million in damages. Greta Moll’s relatives allege the painting was lost during the Allies’ occupation of Germany and, therefore, its acquisition violates international law. The defendants argue that: (1) they performed their due diligence in purchasing the painting in 1979; and (2) because the Allied occupation of Germany came after the fall of the Third Reich and end of World War II, the painting is not protected by the international laws on which the plaintiffs rely. ML
- Beck v. Christie’s, 141 A.D.3d 442 (N.Y. App. Div., July 7, 2016) This case is related to the Degas drawing “Danseuses.” Plaintiffs seek injunction and tremble damages against the auction house for allegedly violating the NY Gen. Bus. Law and engaging in “Deceptive Acts” during its November 3, 2009 sale on behalf of an undisclosed private seller. Nazis illegally confiscated the Kainers’ substantial art collection, and her heirs only obtained a French inheritance certificate only in May 2012. New York courts have applied CPLR 214 (2)’s three-year period of limitations for statutory causes of action. Christie’s asserted that the alleged injury occurred at the time of the sale, more than five years before the filing of the action by the heirs. Their action was dismissed based on the statute of limitations. ML
- Klinger v. Conan Doyle Estate Ltd., 14-1128 (7th Cir., 4 Aug. 2014) Plaintiff, who brought a declaratory judgment for anthologizing modern authors’ stories about Sherlock Holmes after the estate of Author Conan Doyle threatened to work with Amazon and other booksellers to block sales of the anthology unless a license was obtained, was awarded $30,000 in attorneys’ fees he spent on the appeal at the Seventh Circuit. The court called the estate’s approach to encourage payment of a license fee by employing booksellers to boycott the plaintiff’s anthology “a form of extortion” and stated it could be considered a violation of the antitrust laws. ML
From Newsletter 8/15/2016
- Highsmith v. Getty Images, Case No. 16 CV-05924-JSR (S.D.N.Y., Jul. 25, 2016) — Plaintiff, a photographer, filed a $1 billion suit against alleged infringers for the improper use of her images, which she donated to the Library of Congress’ open source library. Highsmith discovered the alleged improper use after Defendant sent her a request for payment, for featuring her images on her professional website. The case is pending, complaint is available here.
- U.S. v. “The Wolf of Wall Street” Motion Picture, Including Any Rights to Profits, Royalties and Distribution Proceeds Owed to Red Granite Pictures, Inc. or its Affiliates and/or Assigns, Case No. 16-16-5362, (U.S. District Court, C.D. Cal, Jul. 20, 2016) — According to the Justice Department, it has filed 16 complaints which would allows the “the government to forfeit the ill-gotten gains of foreign officials and in some cases allows the government to channel recovered funds back to people touched by the corruption.” The governments of Singapore, Switzerland and Malaysia are also investigating the fund. Kleptocracy Asset Recovery Initiative over $1 billion in assets laundered through a Malaysian government fund initially established to stimulate economic growth. According to U.S. Attorney General Loretta Lynch, these assets were used to buy Van Gogh and Monet paintings as well as a stake in “The Wolf of Wall Street” (2013). This specific forfeiture action was started in Los Angeles Federal Court and may become one of the largest civil forfeiture actions ever brought under the 18 U.S. Code § 981.
- Medina v. Dash Films, Inc., Case No. 15-CV-2551-KBF (S.D. N.Y. Jul. 14, 2016) — In 2015, Kanye West and Damon Dash released a music video titled “Loisaidas.” Subsequently, they were sued by Michael Medina, who has a Latin band also called “Loisaidas” for infringement of a registered trademark. The District Judge Katherina Forrest dismissed the complaint after applying the “Rogers test.” Forrest ruled that the title of the music video had artistic relevance and wrote that “[t]he complaint is devoid of concrete allegations that defendants attempted to suggest that plaintiff’s duo produced the work; to the contrary, as evidenced by Exhibit D to the operative complaint, materials promoting the film prominently informed the reader that it was ‘Executive Produced: Dame Dash & Kanye West.”
- Boone Associates, L.P., v Vanessa Buia LLC, Case No. 653902/2016 N.Y. Sup. Ct., Jul. 26, 2016; Vanessa Buia, LLC v. Boone Associates, L.P., Case No. 150921-2016 (N.Y. Sup. Ct., Jul. 26, 2016) — At 1:46 PM, Mary Boone Gallery, who represents graffiti artist KAWS, filed a complaint against art advisory Vanessa Buia and her business alleging that Defendants fraudulently induced Plaintiff to sell KAWS’s work. According to Plaintiff’s complaint, Defendants provided false information as to the identify of the buyers in order to purchase artworks for herself and to receive a $60,000 discount. Petitioners allege fraudulent inducement and seek $60,000 plus interests, costs and fees. On the same day, at 8:03 PM, Vanessa Buia countersued, alleging Boone’s “malice, hatred and jealousy” and seeking monetary relief, damages and fees.
From Newsletter 7/7/16
- Friends of the Parks; Sylvia Mann; and John Buenz v. Chicago Park District and City of Chicago, Case No. 14-cv-09096 (U.S. District Court for the Eastern District of Illinois, Mar. 12, 2015) — A non-profit park and environmental advocacy organization filed suit in federal court against the city of Chicago after Mayor Rahm Emanuel approved a coveted area as the site for the construction of the Lucas Museum of Narrative Art, associated with director and Star Wars creator George Lucas. Petitioners cite a violation of public trust for improper placement on reclaimed sections of Lake Michigan. Petitioners also accuse the city of Chicago of executing an improper ground lease agreement, which should have gained approval from the state legislature rather than city officials. Now, two years after the case’s first preliminary hearing, George Lucas has scrapped attempts to construct the museum in Chicago and instead has selected California as the new site of construction.
- Wilma Tisch v. Kenneth Hendel, Gallery Art Group, Inc., Gallart.com, Inc., Day & Meyer, Murray & Young Corp., and John Doe, Case No. 153319/2016 (Supreme Court of the State of N.Y., New York County, May 9, 2015) –In a case worthy of a detective novel, Plaintiff Wilma Tisch filed suit against various parties to recover possession of a 1928 Picasso, which she alleges was stolen from her home by her housekeeper sometime in late 2012 or early 2013. According to the complaint, Tisch learned of the theft three years after it occurred, after receiving information that upon stealing the painting her housekeeper’s daughter illegally shipped and sold the work to a shell company called the Miami Art Fund, LLC for $60,000. The work changed hands and eventually ended up back in New York City at Sotheby’s, and ultimately in the possession of Kenneth Hendel, a citizen of Florida and owner and operator of Gallery Art II, Inc. Tisch’s suit alleges conversion, aiding and abetting conversion and replevin, and seeks injunctive relief for return of the painting as well as attorneys fees and compensatory, nominal and punitive damages.
- Olivier Renaud-Clement and O.R.C. Inc., v. Cordula von Keller, Case no. 156320-2015, (N.Y. Supreme Court, County of New York, Dec. 11, 2015) — In a case that highlights the enormous role of authentication in the art market, Petitioners O.R.C. have sued Cordula von Keller alleging breach of contract, unjust enrichment, mutual mistake and negligent misrepresentation. Complaint alleges that von Keller should have known that a painting, for which she facilitated a sale with O.R.C., was inauthentic. Problems began when a third party buyer rescinded their purchase of the painting after expert testimony revealed the work to not be that of the attributed artist. Nevertheless, von Keller refused to forfeit her share of the purchase price. In addition to their contention that von Keller should have known about the work’s authenticity, or lack thereof, plaintiffs seek compensatory and punitive damages no less than $75, 854.65 in addition to attorney’s fees.
- Estate of Robert Graham, et al. v. Sotheby’s, Inc., (California Central District Court, April 13, 2016) — The U.S. District Court in Los Angeles has ruled the California Resale Royalty Act, Cal. Civ. Code § 986 (CRAA) as unconstitutional under the Dormant Commerce Clause, as preempted under copyright law. CRRA requires payment of a 5% royalty to artists for the sale of artwork if the transaction occurs in California. Plaintiffs in this case sued Christie’s, Sotheby’s and eBay in a class action, alleging they had not been paid royalties pursuant to the act.
- Dennis Morris, LLC v. Gagosian Gallery, Inc., and Richard Prince, (California Central District Court, June 3, 2016) — In the latest copyright infringement suit against the appropriation artist Richard Prince and his gallerist, a London-based photographer seeks unspecified damages for profits made from Prince’s use of three images of 1970s punk icon Sid Vicious.
- U.S. v. Casey Nocket, (U.S. District Court for the Eastern District of C.A., Jun. 13, 2016) — Following a media frenzy in which thousands expressed outrage at her actions, 23-year old Casey Nocket pled guilty to seven misdemeanor charges of injury and damage to government property. The charges come after Nocket provided evidence that she rendered illustrations on the face of ancient rock formations in seven western national parks. As part of her plea, Nocket was sentenced to 24 months probation, a ban from entering all National Parks, 200 hours of community service and was asked to prepare a written apology to the National Parks Service.
- Gala-Salvador Dalí Foundation v. Faber Gotic Society, (Supreme Court of Spain, Jun. 21, 2016) — In 2009, the Dalí foundation filed a lawsuit against defendant Faber Gotic for the unlawful use of the artist’s name and image, alleging that Faber Gotic infringed Dalí’s copyright rights when they used his work in an exhibition and on their website without permission. Last month, in a ruling against the foundation, the Spanish Supreme Court held the use was permissible because it was more educational than economic in nature.
From Newsletter Oct 2016:
- Zuckerman v. Metropolitan Museum of Art, 16-cv-7665 (S.D.N.Y. Sep 30, 2016) — The estate of Paul and Alice Leffman, who fled Europe in 1938 has sued the Met to recover Picasso’s “The Actor.” The estate alleges that the owner was forced to sell the painting at a low price in order to flee the country and that the Met, to whom the work was donated in 1952, should have known that the 1938 sale was made under duress. Complaint available here. DCA
- Berreau v. McDonald’s, 16-cv-07394 (C.D. Cal. Oct. 3, 2016) — The estate of late graffiti writer SACE is suing McDonald’s over its alleged use of his tag in its decor in graffiti-themed restaurants across the country. The suit alleges that the use of the tag clashes with SACE’s anti-consumerism and anti-corporate image, thereby diminishing the value of his artwork which has fetched high prices at auctions. DCA
- Mayor Gallery v. Agnes Martin Catalogue Raisonne LLC, 655489/2016 (Sup. Ct. N.Y. Cty. Oct. 17, 2016) — A British gallery has filed suit against the Agnes Martin Catalogue Raisonné LLC for their failure to authenticate paintings which it sold to collectors for millions of dollars. The gallery alleges that the defendant failed to exhibit an adequate level of care in reaching its conclusions and was responsible for the gallery having to refund the purchases prices of the paintings. DCA
- Craig v. Princeton Enter., 2:16-cv-10027 (E.D. Mich. 2016) — A Detroit artist has filed suit against a property owner and manager under the Visual Artist Rights Act, seeking to enjoin them from damaging or destructing a mural which she painted on a building in 2009. Allegedly, the defendants plan to redevelop the property and have offered Katherine Craig only token compensation for any effect on her artwork. DCA
- Edelman Arts v. Geoffrey Diner Gallery, 1:2016cv02157 (S.D.N.Y. 2016) — Art collector Asher Edelman has sued the Diner Gallery following severe damage done to a $600,000 Pier Paolo Calzolari work during its shipping. Both parties had their own insurance policies covering the work which Edelman had consigned to Diner. However, Edelman contends that the work must be repaired by Calzolari himself because, otherwise, the Visual Artist Rights Act would allow Calzolari to disavow the work, greatly devaluing it. DCA
- De Fontbrune v. Wofsy, D.C. No. 3:13-cv-05957-SC (9th Cir. Sept. 26, 20160) — The Ninth Circuit ruled that a $2.2 million copyright infringement judgment issued by a French court is enforceable in California. In 2001, Yves Sicre de Fontbrune, who owned the rights to nearly 16,000 photos of Picasso works taken between 1932 and 1970, won a judgment in a Parisian appeals court against American art editor Alan Wofsy who reproduced the photos in books which he sold in Paris. The court held that, although the French word used for the judgment translates directly to “penalty,” it is not an unenforceable penalty because it is the nature of the judgement, and not the dictionary definition, which prevails. DCA
From Newsletter 6/7/16
- Bennet Goldberg, et. al v. Stephens Institute., 16-cv-02613-JSC (U.S. District Court for Northern District of C.A. May 13, 2016) — Parents of decedent college student seek class action lawsuit against Stephens Institute (also known as the Academy of Art University) for violating rental ordinances by failing to maintain student housing and depriving students of their right to exercise tenant rights. Specifically, they allege violations of the California False Advertising Law and the California Unfair Competition Law.
- General Services Administration v. Matthew Schwartz., (U.S. District Court, N.J. May 23, 2016) — The federal government is suing New Jersey art dealer Matthew Schwartz to reclaim possession of the painting “1934 Farmer.” Schwartz claims he obtained the severely damaged painting from the Chrysler Museum, who disposed of it in 1990, and has since spent thousands of dollars restoring it. The federal government’s General Services Administration (GSA) has reportedly been pursuing the painting, which was previously believed to be lost or stolen. Because the painting was made during Franklin D. Roosevelt’s Works Progress Administration, the federal government allegedly holds full legal title to the artwork. In their complaint, GSA cites conversion, trespass to chattels and unjust enrichment and seeks a declaratory judgment and injunctive relief.
From Newsletter 3/7/16
- Toren v. Villa Grisebach Auctions, Inc., 651667/2016 (N.Y. Sup. Ct. March 29, 2016) — The 89-year old New Yorker, David Toren, claims the German art dealer Villa Grisebach Auctions has sold two artworks that were looted from his grandfather, David Friedman. In his efforts, Toren seeks to uncover names of people to whom the Max Lieberman painting, “Basket Weavers” and the Franz Skarbiner painting, “Nach House” were sold in 2000 and 1995, respectively.
- Miller v. The Robert Mapplethorpe Foundation, Inc., No.1:16-CV-2510 (S.D.N.Y. April 5, 2016) — Photographer Bobby Miller filed a $65 million suit for copyright infringement against the foundation and multiple galleries and museums that have previously shown the works at issue. Miller claims that while spending time with Mapplethorpe in the late seventies, he snapped a number of photos of the artist dressed in drag that have since been reproduced and publicly displayed.
- Maestrali v. Helly Nahmad Gallery Inc., 650646/2014, New York State Supreme Court (Manhattan)– Plaintiff, Philippe Maestracci, has filed suit against Helly Nahmad Gallery seeking declaration of title, conversion, and replevin or restitution of a painting, “Seated Man with a Cane, 1918” by Amedeo Modigliani, a renowned Italian Jewish artist. Defendants currently possess, control, and own the painting. The painting has been referenced widely in connection with the recently-publicized Panama Papers.
From Newsletter 10/8/2015 – Wild Issue:
- Simcor LLC v. Mahama, 2:15-cv-4539 (C.D. Cal. June 15, 2015) –After discovering unknown Ghanian artist Ibrahim Mahama, plaintiffs Stefan Simchowitz and Jonathan Ellis King helped to build the young artist a studio and reputation. Mahama then contracted to create works exclusively for plaintiffs to display and sell. According to plaintiffs, Mahama breached this agreement by selling 20 similar works to an unnamed collector and by disclaiming authorship of the 294 signed, commissioned works, reportedly because he was dissatisfied with the quality of the finished products. Plaintiffs have sued to recover $4.45M from Mahama, the estimated value of the 267 unsold works in their possession. DCA.
- Building Industry Association – Bay Area v. Oakland, 3:2015cv03392 (N.D. Cal. July 23, 2015) — A developers’ industry group has filed suit against the City of Oakland alleging that its Percentage for Art ordinance violates the U.S. Constitution. The ordinance, passed in February, requires that 1% of the budgets for non-residential construction projects and 0.5% of the budgets for residential projects be spent on art. Among other arguments, the plaintiffs claim that this amounts to unlawful compulsion of speech in violation of the Free Speech Clause of the First Amendment. DCA.
- Fontes v. Autocom Networks, Inc., C 15-02044 CRB (N.D. Cal. 2015) — Dan Fontes’ mural of Lake Merritt had been locally famous since it was painted on the side of an Oakland building in 1987. Fontes has filed suit against the building’s current and former owners after the current tenant, a Nissan dealership, whitewashed the mural, which had already been damaged by graffiti. Fontes is seeking $400,000, arguing that VARA requires building owners to give 90 days notice of their intent to remove an artist’s work from their property. DCA.
- Honolulu Art Museum v. Greene, Civil No. 15-1-1515-07 ECN (HI Cir. 1st, Aug. 28, 2015) — The Honolulu Art Museum has filed suit against eighty-year-old art collector Joel A. Greene for $880,000, alleging that Greene failed to provide adequate provenance for five Southeast Asian works of art that he donated in exchange for quarterly payments of $80,000 for the duration of his life. Suspicions about the works, worth $1.275 million, first arose in 2011 after the Department of Homeland Security seized seven works from the museum that had originated from Asian art smuggler Subhash Kapoor. DCA.
- Committee to Save Cooper Union v. Bd. of Trustees of the Cooper Union, No. 0155185-2014 (N.Y. Sup. 2015) — Cooper Union has agreed to settle a 2014 lawsuit filed by a group of faculty and alumni to restore the school’s 155-year-old tuition-free model. The settlement, pending review by the New York Supreme Court, would create a “Free Education Committee” tasked with developing a plan to return to the no-tuition system. The art, design and engineering college will also add alumni-elected members and two students to its board of trustees. DCA.
From Newsletter 7/16/2015 – The International Issue:
- Albrecht v. Achenbach, Landgericht Düsseldorf [LG Düsseldorf] [Regional Court of Düsseldorf], Jan. 20, 2015, Docket No. 6 O 280/14 (partial judgment in accordance with section 301 of the German Code of Civil Procedure) — One of Germany’s most influential art advisors, Helge Achenbach, was found guilty of 18 counts of fraud and sentenced to six years in prison. During the trial he confessed to marking up purchase invoices in order to lessen the risk imposed by the buy-back clause. Achenbach was also ordered to pay the Albrecht family €19.4 million, the sum of the additional charges. DSF
- Christie’s France SNC v Syndicat national des antiquaires, Case C-41/14: Judgment of the Court (Fourth Chamber) of 26 February 2015 (request for a preliminary ruling from the Cour de cassation – France) (OJ C 102, 7.4.2014), Celex No. 614CA0041– Syndicat National des Antiquaires (SNA) claimed that Christie’s France’s practice of having the buyer pay for the amount for the resale royalty constituted unfair competition. The judgment of the Court of Justice of the European Union states that member states can determine who should pay the royalties fees even though under EU law, the royalty is paid by the seller, not the buyer. The court claims that it is beneficial to allow the states this freedom because competition in the art market will be less distorted with few and indirect effects on the internal market. DSF
- Landgericht Wiesbaden [LG Wiesbaden] [Regional Court of Wiesbaden], Docket No. 1 KLs-4423 Js 39160/12. — In this currently ongoing case, the prosecutors accused the co-owners and manager of the SMZ Gallery, Itzhak H., Moey Ben H., and Adenande Ben H., of commercial and gang-fraud and forgery. Defendants insist that the paintings are authentic and come from archives in the former Soviet Union. Prosecutors claim damages of €11 million for sales of 19 forged Russian paintings. DSF
- Rechtbank Rotterdam, 24 Juni 2015, Kreuk v. Vō (Neth.). — The court ruled in favor of art collector Bert Kruek and ordered Danh Vō, a Danish-Vietnamese artist, to make and deliver the artwork promised within one year. Late delivery would have a penalty of €10,000 per day and capped at €350,000. Kruek will still pay the originally agreed upon price even though Vō’s works now sell at higher rates. The court further ordered that the artist can produce artwork that reflects his developments since the deal and cannot be forced to repeat past works. DSF
- Thwaytes v. Sotheby’s,  EWHC (Ch) 36, (appeal taken from Eng.) — On 16 January 2015, Mrs Justice Rose ruled in favor of Sotheby’s and held that the auction house had been entitled to rely on the expertise of their specialists when appraising a Caravaggio painting. The painting sold at £42,000 under their advice, but was later valued at £10 million. Sotheby’s experts stand by their lower valuation claiming that the work is not an authentic Caravaggio. DSF
From Newsletter 6/1/2015
- Overton v. Art Finance Partners LLC, 1:2015cv03927 (S.D.N.Y. May 21, 2015) — Kiwi art collector Stephanie Overton has filed suit in New York alleging that $10.8 million worth of her paintings were sold by a NYC art dealer without her permission. The paintings were allegedly bought by defendants, eight art companies, who should have known that they were being sold improperly by Timothy Sammons, Inc., a fine art agency which is not a party here. The suit asks for over $1 million in punitive damages for replevin, conversion and aiding and abetting TSI’s breach of fiduciary duty. DCA
- Ryan v. Editions Ltd. West, Inc., 5:06-CV-08412-PSG (9th Cir. May 19, 2015) — The 9th Circuit ruled that pastel artist Victoria Ryan was improperly denied the full amount of attorney’s fees stemming from her copyright battle against Editions Limited West, which had violated her 1995 publishing contract. Ryan sought $328,000 in attorney’s fees but was awarded roughly a quarter of that amount because she prevailed on only one of her four claims. The district court failed to adequately explain this decision and the 9th Circuit was therefore unable to sustain it. DCA
- Depew v. City of New York, 1:2015cv03821 (S.D.N.Y., May 18, 2015) — Members of the Illuminator Art Collective have sued New York City alleging false arrest and First Amendment retaliation stemming from an incident last summer. The artists were charged with illegal advertising for using a projector to display text onto the exterior walls of the Met protesting the dedication of David H. Koch Plaza. The charges were dropped but the NYPD did not return the projector for over two months. The plaintiffs argue that this constituted an illegal prior restraint on speech. DCA
- John Eskenazi, Ltd. v. Maitreya Inc., 1:2015cv03695 (S.D.N.Y. May 13, 2015) — British art dealer John Eskenazi has filed suit against NY-based Asian art dealer Nayef Homsi and his corporation, Maitreya Inc. alleging breach of warranty, fraud, civil conspiracy and unjust enrichment and demanding $80,000 in damages arising from Eskenazi’s 2013 purchase from Maitreya of a 9th-c. Indian statue of the god Bhairava which the Department of Homeland Security alleged was stolen from an Indian temple. The Manhattan DA filed a forfeiture action against Maitreya, alleging that it knew that the Bhairava and other statutes which it sold were stolen. MAT
From Newsletter 5/8/2015
- Cornell University v. Pei Cobb Freed & Partners Architects LLP (N.Y. Sup. Ct. May 2015) — University is suing the architecture firm Pei Cobb Freed & Partners LLP and its contractors for the faulty construction of the addition to the university’s Herbert F. Johnson Museum of Art. Cornell’s art museum was originally designed by I.M. Pei in 1968, and an addition was started in 2009 to accommodate its growing art collection. Cornell alleges that the architectural design and construction of the new addition were inconsistent with industry standards for temperature and humidity specifications to maintain the integrity of its artwork, that water leaks in the building’s roof were left unfixed by the contractors, among other problems. Cornell, represented by Nelson Roth, is suing for architectural malpractice, breach of contract and negligent construction and supervision, and alleges it has suffered at least $1.1 million in damages. MAT
- Peter Beard v. Hoerle-Guggenheim Gallery (N.Y. Sup. Ct. May 2015) — Judge Charles Ramos will decide the case brought by photographer Peter Beard over three photographs that went missing in 2013 and recently reappeared for sale at the Hoerle-Guggenheim gallery in Chelsea. The three photographs, depicting scenes of African elephants with Beard’s signature collage effects, were taken without his permission while at a friend’s Park Avenue apartment. Reports indicate that the works were sold by Beard’s former assistant, Natalie White. Whether she had permission to sell those works depends on a recent settlement reached between White and her former employer in a separate lawsuit. MAT
- Nungesser v. Columbia U., et al., 15-cv-03216 (SDNY, 23 Apr. 2015) — Judge Gregory Woods is assigned the case brought by the Columbia University student against the University, its president, and art professor for discrimination. Student alleges his professional and educational prospects have been ruined by the publicity brought by the university’s art student Emma Sulkowicz’s “Mattress Performance.” Sulkowicz, who says Nungesser raped her on campus, started the campaign in which she carries a mattress with her on campus in protest of the university’s handling of her accusation of Nungesser. The complaint accuses the university for letting Sulkowicz earn course credits for the “display of harassment and defamation” and alleges that Nungesser’s rights are being violated and his well-being and future prospects are suffering as a result of the campaign. MJK
- Britto Central, Inc. v. Craig & Karl, and Apple (United States District Court of Southern District of Florida, 6 April 2015) –– The Artist Romero Britto’s company filed a complaint against Apple and designers Craig Redman and Karl Maier in early April in District Court of Southern Florida for allegedly misusing his imagery as part of a marketing campaign showcasing artworks made using Apple products. The plaintiff sued the defendants for unfair competition, copyright infringement, trade dress infringement, and false designation of origin or sponsorship/endorsement, and demands an injunctive relief and damages. MJK
From Newsletter 2/13/2015
- Plumb v. Casey, 469 Mass. 593 (Sept. 8, 2014) — J. Duffly of the Supreme Judicial Court of Massachusetts answered a lingering question regarding consignments of artworks under M.G.L. Chapter 104A § 2b, stating that the delivery of an artwork by consignor and acceptance of the work by consignee is enough to create a consignment, and any lack of a separate written statement of delivery does not destroy the consignment relationship. The court reasoned that the law was established for the purpose of protecting artists rather than galleries. JC
- King v. Park West Galleries, Inc. (MI, 2014) (unpublished) — Reversal from trial court’s order granting summary judgment to defendants. While on a cruise in 1999, plaintiff Mattie King bought supposed Salvador Dali originals for $165,000 at defendant Park West Galleries’ auction. King received certificates of authenticity signed by Defendant CEO. She held on to the paintings for ten years before deciding to sell in 2009. King soon learned that defendant had been accused of forging artwork. An independent appraiser confirmed that her paintings were forgeries. On appeal, the court reversed lower court’s findings and ruled that King was entitled to a tolling of the limitations period for the fraudulent concealment and breach of warranty claims. A party in Michigan that has a viable claim of fraud owes no duty of diligence to discover the claim. Defendants fraudulently concealed the existence of a claim by certifying the authenticity of the paintings and inducing King to rely on their artistic expertise. In an action alleging breach of warranty, the claim accrues once the breach of warranty is or reasonably should be discovered. As an art merchant, defendant created an express warranty of authenticity when providing King, a non-merchant buyer, with a certificate of authenticity. In providing inauthentic art, defendants breached that warranty. DA
- Gordon v. Invisible Children, Inc. et al, 1:14-cv-04122, (SDNY, 6 June 2014) – The artist Janine Gordon sued a non-profit group for copyright infringement. Defendant allegedly copied Gordon’s photograph and used it in a video campaign on the fugitive Ugandan war criminal Joseph Kony. Gordon asserted that the image used copies the “composition, total concept, feel, tone, mood, props, settings, decors, wardrobe, and lighting” from her 2001 photograph “Plant Your Feet on the Ground.” MK
- Phillips v. Macy’s, Inc., 1:2015cv10059 (1st Cir. MA, Jan. 9, 2015) — Award winning sculptor, David Phillips, originally from Flint, MI, brought a copyright infringement claim against Macy’s for reproducing one of his iconic Frog’s that decorate the Frog Pond in Boston on the Commons. IT
- Aquino et al v. Zephyr Real Estate LLC, 5:15-cv-00060-NC (N.D. Cal., 6 Jan. 2015) – Amidst mounting tensions over soaring prices and gentrification in San Francisco, eight mural artists filed a complaint against the city’s largest independent real estate firm alleging copyright infringement by reproducing their work in a 2013 promotional calendar which advertised “luxury homes.” MK
- Cindy Garcia v. Google, Inc., et al., (9th Cir., Nov. 13, 2014) – J. Thomas presiding, a panel of non-recused judges voted in favor of rehearing the 9th Circuit case that previously held that actress and plaintiff Cindy Lee Garcia had a “copyright interest” in her performance in the film “Innocence of Muslims” which gives her the right to have the video taken offline. JC
- Polvent v. Global Fine Arts, Inc., 14-21569-CIV-MORENO (S.D. Fla., 18 Sept. 2014) – J. Federico A. Moreno granted a motion to compel arbitration filed by Defendant, American art dealer Global Fine Arts, Inc. in its copyright dispute with Plaintiff, French artist Jacqueline Polvent. The court ruled in favor of arbitration even though the licensing agreement between the parties, which stipulated for a compulsory arbitration in case of a legal dispute, had expired in 2013, an auto-renew provision provided for a successive and consecutive five-year period unless terminated in writing one-year prior to expiration. JC