Job Posting: Art Law Associate (NYC)

Cahill, Cossu, Noh & Robinson LLP (CCNR)  is seeking an Associate. CCNR is a boutique firm which provides a wide range of litigation and transactional services to its clients. The firm is best known for its focus on matters arising in the art world, in addition it represents variety of clients (including those in fashion and publishing) in diverse engagements that involve intellectual property, employment, nonprofit, as well as commercial litigation.

Responsibilities for a candidate with 2-5 years’ experience, including litigation, will include:

  • Legal research
  • Drafting legal briefs and other litigation documents
  • Documenting transactions and related due diligence
  • Pro Bono engagements
  • Professional activities in law and the art world

Contact: CAHILL PARTNERS llp 70 West 40th Street, New York, NY 10018 (T) 212-719-4400

“Legs”: Art Law Issues Stand Out in a New Documentary

By Adelaide Dunn*

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Film still from Legs: A Big Issue in a Small Town, showing Larry Rivers, “Legs”. Source: ReelGA.com

In Sag Harbor, NY, a fiery local debate over a prominent artwork, which started in 2008 and still rages on, has led residents to consider exactly what it means to live in a small town with a big personality. Legs: A Big Issue in a Small Town (2015) is a documentary by Sag Harbor-based filmmaking power couple Beatrice Alda and Jennifer Brooke, which tells the heartfelt and amusing story of a giant pair of legs and a multilayered community struggling to define its identity (See trailer: https://vimeo.com/162895102)

A haven for artists, intellectuals and freethinkers, Sag Harbor is situated at the center of New York’s Hamptons – where a long list of creatives, including Jackson Pollock and Willem de Kooning, have lived and worked. But, as the documentary reveals, the town also has a rich whaling history and toytown vibe that its self-described “natives” strive to preserve.

The sculpture at the heart of the issue is a large pair of legs, created by Larry Rivers (1923-2002). A known provocateur, Rivers “had the audacity to challenge abstract expressionism” by combining figuration with abstraction and parodying the old masters. (Jackson Pollock once tried to run over one of Rivers’ sculptures in East Hampton.) Visitors had to walk through the middle of the Legs to enter Rivers’ studio nearby in the town of Southampton. Some were amused and others annoyed, sowing the early seeds of discord surrounding the Legs.

Ruth Vered and Janet Lehr – a couple of eccentric gallerists – purchased a second iteration of the Legs in 2008 and mounted them to the side of their home, a converted, whitewashed Baptist church. At once quirky, racy and Pop, the sixteen-foot pair of fiberglass Legs are mysteriously androgynous, poised in a carefree prance, and adorned with garter-like stripes. Loved by some and loathed by others, the Legs quickly became an iconic local landmark and the subject of a protracted legal dispute, beginning in 2008 and continuing today.

The Case

Soon after the installation of the Legs, Vered and Lehr’s neighbors complained to the Sag Harbor Zoning Board. The Sag Harbor Village Building Inspector subsequently concluded that they needed a building permit, and the Sag Harbor Village Attorney issued an opinion stating that the Legs were an “accessory structure” in violation of the requirements of the Zoning Code of the Village of Sag Harbor (Applebome). Most notably, the Legs are located a foot from the property line where 35 feet is required (Sag Harbor Online).

After the Building Inspector denied Lehr and Vered’s application for a building permit in 2010, in 2011 they petitioned the Sag Harbor Zoning Board of Appeals to allow them to keep the Legs where they stand. The Board denied their application without prejudice. A string of public hearings followed from 2011 to 2012. Lehr and Vered were supported by dozens of Sag Harbor residents who argued that the Legs are a work of art that should remain, as well as the Larry Rivers Foundation, which produced a petition signed by 400 local residents arguing the same. Neighbors continued to call for the removal of the sculpture (Menu).

In 2012, Lehr and Vered’s attorney argued before the Board that this is a unique case that will not create a detrimental zoning precedent, because Larry Rivers has an important place in the locale’s artistic history, and because the amount of support Lehr and Vered have received indicates that there is serious value to the Legs remaining in their prominent position in the Village. Moreover, the Legs should not be dealt with under the Zoning Code because they are a form of expression protected under the First Amendment. He made the point that other forms of expression, like flag poles and bird baths, are not regulated by the Zoning Code. Further, public health, safety and welfare are not impeded by the sculpture (Sag Harbor Online).

The Board rejected those arguments, holding that the issue of art was a red herring, and that a work of sculpture can still be subject to zoning laws. But the Board nevertheless allowed aesthetics to affect its decisionmaking. It stated that the Legs are an undesirable change in the character of the neighborhood, and their location in the historic district of Sag Harbor is contrary to the Village’s goals of preserving its historic features. Vered called the Board a “bunch of chickens” and appealed the decision (Sag Harbor Online).

In 2015 the New York State Supreme Court in Riverhead upheld the Board’s ruling that the Legs are a structure that is subject to the Zoning Code. The Court dismissed the issue of the Legs’ status as a work of art, reasoning that “what is art?” is a “question philosophers from Plato to Arthur Danto have debated, [which] is best left to their province” (Steindecker). But for now, the Legs remain standing. With characteristic vigor, Lehr and Vered have appealed the New York Supreme Court’s decision and are not removing the Legs until they are forced to do so.

The Film

In preparation for the film, Brooke and Alda interviewed an impressive diversity of Sag Harbor residents and asked for their opinions regarding the Legs. Interviews with artists, musicians, critics, lawyers, sociologists, café owners, local politicians and other residents offer earnest perspectives. For some, the Legs are a reassuring symbol that Sag Harbor has a sense of humor and a creative spirit. Responses range between “live and let live” and “who cares?”. For others, the Legs are an unwelcome punctuation of the town’s quaint, historical aesthetic. Sag Harbor is a town facing significant change, due in part to its popularity as a vacation spot for New York City’s upper crust. To the “native clan”, the preservation of Sag Harbor’s look is a surrogate for the preservation of its “culture” – a concept that is also up for debate. Behind this seems to be an unspoken jibe against whom they see as foreign art snobs and pretentious Manhattanites invading their neat world.

The film’s conversation touches upon three themes common to art lawsuits (each analyzed below): (1) what constitutes art, and who is qualified to make that call? (2) the implications of a community rejecting an artist’s expression, and (3) the tendency of art lawsuits to provide platforms for broader social inquiries and new creative expression. Legs uncovers the universal complexity of social dynamics in small towns and queries how we tolerate our neighbors’ differences. This writer had the pleasure of seeing Legs “in situ”, at Sag Harbor’s Bay Street Theater, as part of the 2016 Hamptons International Film Festival. The colorful cast of talking heads could be seen – and heard – during the screening and the following Q&A with Alda and Brooke.

Art Law Theme #1: What is Art?

In its decision regarding the 2015 appeal, the New York State Supreme Court in Riverhead side-stepped the problematic conundrum of “what is art”, choosing not to behave like art critics. Indeed, this question has preoccupied the contemporary art world since the readymade movement, originating with Marcel Duchamp’s famous urinal and carrying through into noted contemporary oeuvres like those of Jeff Koons and Dan Flavin. Appropriating a readymade consumer object, placing it within an art gallery and elevating it to the sacred status of “art” causes the viewer to question the validity and sincerity of “art” as a concept. This interpretive tension lies beneath a great deal of contemporary art, readymade or other. It is no wonder contemporary art that creeps into courtrooms causes such anxiety. The law depends on stable categories and analogies that enable binary, adversarial approaches to problem solving. Contemporary art, at its very core, aims to resist the notion that there can be a right answer, and that “art” lends itself to a stable definition.

The classification of artworks as everyday objects – the reverse of the readymade – is an occasional conceptual defunct of the law. The decisions of international customs authorities provide two interesting examples that can be compared with the New York State Supreme Court’s decision regarding the Legs.

The first involves the late Dan Flavin. Flavin is celebrated for his vibrant and dramatic assemblages of fluorescent tubes of strip lighting, which have exhibited at noted galleries and museums worldwide. But the European Commission ruled in 2010 that Flavin’s works should be classified for tax purposes as “wall lighting fittings”. This means that any works of the American artist being imported into the EU are liable to full value-added tax, which is 20%. If his works were treated as sculpture, they would only be liable to 5% (Kennedy).

Constantin Brancusi, a key inspiration for Flavin, is coincidentally also a victim of philistine customs rhetoric. When none other than Marcel Duchamp brought a selection of Brancusi’s sculptures, including his iconic Bird in Space, from Paris to New York City in 1926, a customs official (himself an amateur sculptor) refused to call it art (Gayford). To qualify as “sculpture”, works had to be “reproductions by carving or casting, imitations of natural objects, chiefly the human form” (Cleary).

Because Bird in Space was an abstract rendition of the form and motion of a bird, missing representational signifiers like wings and a beak, the work was relegated to the category of “Kitchen Utensils and Hospital Supplies”. For that reason, 40% of the work’s value was levied against it, while qualifying sculptures were free from import taxes. But a thirteen-month appeal, which involved Brancusi testifying as to his painstaking production method, and supporting testimony from Jacob Epstein and Edward Steichen, led to a reversal (Brancusi v. United States). This was the first U.S. court decision recognizing that non-representational sculpture could be considered art (Martin).

As these examples and the case involving the Legs reveal, artists’ unique expressions can be undermined and injustices can occur when challenging artworks are categorized as mere objects.

Art Law Theme #2: the People v. the Artist

Furthermore, it seems democratically significant that the small community of Sag Harbor can advance such a critical voice regarding aesthetics and what is, in the words of one of the film’s interviewees, a “frontal challenge to private property”. It is also significant that those in favor of the Legs’ removal amassed such lobbying power. This is because there is a general assumption in the law that the public benefits from having free access to artworks. For example, according to moral rights rhetoric, artworks present references to history and the contemporary that influence present and future generations. Those references become part of a community’s shared vocabulary (Hansmann & Santilli, 106). And in copyright and First Amendment philosophy, society’s uncensored marketplace of ideas is fed by the public consumption of creative works, no matter the content. A diversity of expression in the marketplace of ideas strengthens democracy, since creative works have political and social implications (Netanel, 159).

But situations like that in Legs allow us to deconstruct these assumptions as out of step with the nature of contemporary art. The famous case involving the removal of Richard Serra’s sculpture Tilted Arc from the Federal Plaza in Manhattan provides a useful analogy. The federal employees and area residents that argued for the removal of the sculpture – a 120 feet long curved steel wall – mainly protested the imposition of an austere and challenging aesthetic on them (Duboff, Burr & Murray, 337). Despite testimony of numerous art world amici, including Keith Haring and Claes Oldenburg, arguing that dismantling a site-specific work is equal to destroying it, the Court ordered the removal of Tilted Arc. Like with the Legs, the Court justified its decision with practical considerations, such as Tilted Arc’s obstruction of police surveillance and attraction of rats (Serra v. United States General Services Admin). The removal was said not to be content-based and not a violation of Serra’s right to freedom of expression.

Both the Legs and Tilted Arc illustrate how, when sculptures with unstable meanings are superimposed onto the adversarial legal system, artificial binaries can shape trial narratives. For Tilted Arc, that binary manifested as the people versus the artist. Similarly, the Legs dispute pitched regular people against the art world.

Legs captures well the contrasting personalities driving the debate. The disgruntled neighbor who lodged the initial complaint with the Zoning Board receives considerable screen time. Poised within her plush heritage home, she labels herself the representative of “the neighbors who have to look at [the Legs] everyday”, calling them an “eyesore”. During the screening, her scathing remarks were met with laughter and lighthearted jeers from the audience.

Vered – unapologetically an art world archetype – makes outspoken and emotive comments about her Legs that anchor the conversational flow. She mentions a tacky blow-up angel decoration in a nearby yard that she and Lehr found “offensive” but managed to tolerate. Citing the U.S. Constitution in her convictions, she opines, “freedom of speech is becoming freedom of hate”. Being somewhat inflammatory by nature, Vered’s response to the dispute was to install floodlights around the Legs that lit them dramatically each night.

One of contemporary art’s virtues is, of course, its resistance to widespread understanding and approval. But some critics have argued that contemporary art has become a collection of abstruse messages accessible only to art world denizens (Meeker, 218). The critic Adam Gopnik writes that contemporary art’s popular audience has been “displaced by a professional constituency” (Gopnik, 141). It is this alienation of regular people from the contemporary art world – accentuated by the legal adversarial system’s narrative binaries – that appears to have exacerbated the disputes behind the Legs and Tilted Arc cases.

Art Law Theme #3: A Platform for Broader Social Inquiries and New Creative Expression

A positive ramification of arts conflicts is that they allow people to play out their anxieties without resorting to violence. This provides a democratic platform upon which to reconcile different values and identities within a community. Stephen Tepper, a sociologist appearing in the film, offered an interesting theory on how democracy enables communities to engage in these “symbolic conflicts”. This leads to “ontological security”, or mental stability resulting from the coherence of one’s social life. Tepper is the author of Not Here, Not Now, Not That! Protest Over Art and Culture in America, which examines some 300 examples of arts conflicts and reaches these conclusions.

Indeed, Brooke and Alda utilized the dispute as a platform for discussing wider social tensions. The implicit hostility felt by different racial groups is shared. The homophobia experienced by a couple of Sag Harbor dads – who until recently were prohibited from being Boy Scout leaders – is told with candidacy and intimacy. Power dynamics between native residents and recent arrivals are told of. Though Legs concludes before the case is fully litigated, the discussion, according to one interviewee, is just as important as the resolution.

The best arts conflicts are those that result in new creative works. Christoph Büchel’s response to the Massachusetts Museum of Contemporary Art’s lawsuit against him was to make new art out of thousands of pages of discovery documents. Mass MoCA was asking the Court for the right to open to the public Büchel’s immense yet unfinished installation, “Training Ground for Democracy”. Büchel and his attorney called the museum’s refusal to give them confidential documents “censorship” (Kennedy).

Brooke and Alda similarly found good documentary fodder in the dispute. They named their goal in the Q&A as giving a “voice to the village”. Based on the heartfelt comments and interjections of Bay Street Theater’s attendees, they clearly succeeded. The filming and screening of the documentary seems to have constituted a catharsis for the community. While legal institutions make attempts at dispute resolution, Legs offers a more therapeutic process, which might be called dispute relief.

Conclusion

In all, Legs is a rich, meandering conversation that stands as a celebration of the Sag Harbor community’s passions – despite how different those passions can be. Viewers shouldn’t expect the drama and sensationalism that often comes with coverage of artistic debates and free expression matters. Though localized, the themes explored are universal to small towns, such that Legs will strike a chord wherever it screens. It has, in fact, had a successful first run of over 25 festivals, and the next stages of distribution should be just around the corner.

Vered and Lehr’s appeal will be one to watch. Despite the unfavorable decisions from the Zoning Board of Appeals and Supreme Court of New York at Riverhead, an appeal court may well see the situation differently. New York’s courts have in recent years become more adept at importing into their decision-making techniques of artistic analysis, awareness of the art world’s unique business conditions, and acknowledgement of new production techniques in the realm of contemporary art. In such cases, which often involve debates over artistic meaning and merit, the roles of art critic and legal advocate can be intertwined. It is likely that a court will be sympathetic to Lehr and Vered’s position and make a finding that their freedom of expression and private property rights triumph over zoning requirements and neighborhood complaints about aesthetics. More on this as the Legs saga continues.

* * *

From the editors: A special screening of “Legs: A Big Issue in a Small Town” by the Center for Art Law as part of the 2017 “You’ve Been Served” series is planned for the Spring of 2017. Art law topics to be discussed in conjunction with the film will include VARA and NYS zoning laws.

 

 

References and Sources

*About the Author: Adelaide Dunn recently graduated with an LLM in Competition, Innovation and Information Law from the New York University School of Law. Before that, she completed a BA/LLB(Hons) in Art History and Law from The University of Auckland in New Zealand. Adelaide is particularly interested in the intersections of copyright, moral rights and the visual arts. She is currently doing intellectual property, entertainment and commercial law work as a law clerk for a solo practitioner in New York City. Adelaide can be reached at adelaide1dunn@gmail.com.

 

WYWH: Legal Primer for Artists: Leasing Commercial and Residential Space & Dealing with Tax Issues

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Preoccupied with their work, artists often neglect reaching out to accountants and attorneys for advice on how best to brace themselves for possible issues they may encounter. Among an artist’s various legal considerations, contracts are perhaps the most important. Contracts can be forged for consignment agreements with galleries and auction houses or for the rental of commercial and personal leases. Although contracts are invaluable for artists, a litany of complications accompany the process of facilitating, signing and executing them.

On Thursday, June 9, 2016, New York Foundation for the Arts (NYFA), in cooperation with the New York State Bar Association’s Entertainment, Arts, and Sports Law Section (EASL) and EASL’s Committee on Fine Art, gathered a panel of attorneys to offer basic legal information to artists. Attendees also included attorneys and students. The two-hour information session featured three speakers, all of whom shared valuable insights into issues pertaining to leasing commercial space, the rights of artists as residential tenants, and income and sales tax issues. The discussion was moderated by the co-chairs of EASL’s Committee on Fine Arts: Carol Steinberg, Esq. and Judith Prowda, Esq.

The first panelist to present was Jill A. Ellman, Esq. She is currently an Associate at M. Ross Associates, LLC, a law firm that handles all aspects of complex commercial litigations as well as transactional matters. Ellman focused on commercial leasing and how artists can ensure that they are protected from predatory practices such as exorbitant rent hikes, unauthorized changes to the lease and liability.

The second panelist to speak was David Frazer, Esq., Of Counsel to Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP. Having dedicated much of his career to advocating the rights of tenants, Frazer offered important advice concerning how artists can obtain the best leases while also protecting themselves. Frazer took great care to stress that artists “should not cut corners,” as record keeping is crucial to protecting one’s own personal interests. If a landlord or tenant requests any modifications to the lease, artists are encouraged to have the alterations signed by the landlord in writing and corroborated by all affected parties. Creating a paper trail of alterations to consignment agreements or real estate transactions helps protect the artist/tenant from possible abuses and in the event of future litigation.

Patricia Pernes, Esq., a Tax Consultant in the Business Tax Services sector and Art & Finance Group of a Big Four accounting firm, echoed Frazer’s sentiments regarding an artist’s responsibility to exercise due diligence in all formal transactions. Pernes, however, shifted the conversation from leasing issues to tax deductions applicable to artistic labor and the pieces themselves. Throughout her presentation, Pernes emphasized the distinction between a business and hobby, with the former classification being adequate for the deduction of materials and work-related expenses and the latter not receiving such protection. The principle element is whether the work is created in furtherance of a profit-driven business, in which case tax deductions can be used to incentivize growth. As with contracts, good record keeping is important for tax deductions as well.

The formal discussion was followed by a lively questions and answers session where attendees were able to ask the attorneys about legal provisions specific to their craft. Questions ranged from deductions that can be claimed by musicians for research to leasing for art nonprofit organizations. Ellman, Pernes and Frazer took the time to delve into each question’s nuance, applying their expertise to a motley of hypothetical situations and concluding what was, indeed, a priceless evening.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Instead, readers should seek an attorney.

Parting Is Such Sweet Sorrow: Covenants Not to Compete Between Auction Houses

*By Elizabeth Weber, Esq.

Covenants not to compete (CNCs), also called non-compete clauses or simply non-competes, are commonplace in employment contracts. Generally, CNCs seek to prevent an employee from leaving his or her current employer to work for a direct competitor. CNCs typically last for a set period of time and only pertain to a specific geographic area. In specialized fields like the art market, these restrictive covenants prevent employees from moving between similar companies with the ease they would prefer. Specifically, CNCs entered into by auction house employees present unique issues to those who work in the field and seek career developments due to the limited number of major auction houses, especially within a particular geographic area.

Covenants Not to Compete

A covenant not to compete is a contractual provision in which one party, the employee, affirms that he or she will not work for a market competitor within a specified geographic area for a particular period of time after the employment period ends. CNCs are a part of  contract law and, as such, are dictated by state law. In New York,

[t]he modern, prevailing common-law standard of reasonableness for employee agreements not to compete applies a three-pronged test. A restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public.

BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388-89 (1999) (emphasis omitted). A violation of any of the three prongs may invalidate the CNC completely unless the suit arises in a state that follows the blue pencil rule. When a particular CNC provision is overbroad, courts in blue pencil states may reform or strike the offending provisions from the contract while the rest of the CNC remains intact and partially enforceable. For example, New York allows courts to reform overbroad CNCs; Florida courts follow a mandatory CNC reformation regime; and California law does not permit the use of CNCs, although the use of CNCs to protect trade secrets in California is unsettled. Beck Reed Riven LLP’s extensive state-by-state chart provides a more in-depth view of CNC law by state.

Additionally, in Reed, Roberts Assocs. v. Strauman, a 1976 case involving the enforceability of CNCs, the New York State Court of Appeals specifically focused on the fact that “our economy is premised on the competition engendered by the uninhibited flow of services, talent and ideas. Therefore, no restrictions should fetter an employee’s right to apply to his own best advantage the skills and knowledge acquired by the overall experience of his previous employment.” Reed, Roberts Assocs. v. Strauman, 40 N.Y.2d 303, 307 (1976). Despite the Court of Appeals’ focus on an employee’s right to participate in the market economy, this right is not limitless. CNCs may be used to prevent a former employee from disclosing a company’s trade secrets or confidential client information or, alternatively, CNCs may be enforced if the former employee performed unique or extraordinary services for the former employer. Id. at 308.

Auction House CNC Case Study: Heritage Auctioneers v. Christie’s

Despite the prevalence of CNCs, few cases that involve breached covenants within the auction house world arise. One case in particular illustrates the importance of CNCs: the ongoing matter between Heritage Auctioneers & Galleries and Christie’s. Heritage Auctioneers & Galleries v. Christie’s, Sup Ct, New York County, 2014, Oing, J., index No. 651806/2014.

Heritage involves three former Heritage employees who specialized in the pre-owned luxury accessories sector (think vintage Hermès Birkin bags): Matthew Rubinger, Rachel Koffsky, and Caitlin Donovan, who worked in Heritage’s Luxury Accessories department with Rubinger serving as both Director and department head while Koffsky and Donovan held positions as Director of Operations and Director of Consignments, respectively.

According to Heritage’s complaint, Heritage hired Rubinger in 2010 to head the company’s Luxury Accessories business right out of college. The company alleges that it “invested in Rubinger’s identity” to elevate Rubinger within the auction world and brand him as the face of Heritage’s Luxury Accessories department worldwide. Complaint, Heritage Auctioneers & Galleries v. Christie’s, Sup Ct, New York County, 2014, Oing, J., index No. 651806/2014. As their Luxury Accessories business grew, Heritage hired Koffsky and Donovan in that department as well.

Four years later, in 2014, Rubinger renewed his written contract with Heritage through December 31, 2014. Rubinger’s employment contract included both CNC and non-solicitation clauses and an additional non-disclosure clause in which he affirmed that he would not disclose any of Heritage’s trade secrets. Specifically, the CNC provision in Rubinger’s contract stated that Rubinger would not work for a Heritage competitor anywhere in North America for twenty-four months after ending his employment with Heritage. Koffsky and Donovan’s employment contracts included a nondisclosure agreement only. The text of Rubinger’s CNC as shown in Heritage’s complaint is included below.

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Images found in Complaint, Heritage Auctioneers & Galleries v. Christie’s, Sup Ct, New York County, 2014, Oing, J., index No. 651806/2014.

During the week of May 12, 2014, Christie’s extended offers of employment to Rubinger, Koffsky, and Donovan. On May 16th, Rubinger accepted the offer from Christie’s Hong Kong, Ltd., which is based and conducts business in Hong Kong, China. Koffsky and Donovan accepted offers from Christie’s, Inc., which is based in the United States. The three resigned from Heritage the following Monday, May 19th.

Heritage subsequently filed suit against Christie’s, Rubinger, Koffsky, and Donovan on June 13, 2014. The complaint alleges that Christie’s engaged in unfair business practices; tortiously interfered with Heritage contracts; induced, aided, and abetted Heritage employees to violate their fiduciary duties; and misappropriated trade secrets and other proprietary information. The complaint further alleges that Rubinger, Koffsky, and Donovan all breached their fiduciary duty of loyalty to Heritage in addition to breaching their Heritage employment contracts.

In response, the defendants asserted that Christie’s Hong Kong and Rubinger specifically structured their employment arrangement to avoid breaching Rubinger’s CNC with Heritage. Defendants’ Memorandum of Law in Opposition to Plaintiff’s Motion for a Preliminary Injunction, Heritage Auctioneers & Galleries v. Christie’s, Sup Ct, New York County, 2014, Oing, J., index No. 651806/2014. By working in Hong Kong, not the United States, Christie’s and Rubinger argued that Rubinger complied with the territorial terms of his CNC. Christie’s further stated that Rubinger, Koffsky, and Donovan were instructed not to use or disclose to Christie’s or use for Christie’s benefit any information derived from their time with Heritage. The defendants also noted that Heritage failed to provide any evidence that Rubinger, Koffsky, or Donovan utilized any confidential information thus far during their employ with Christie’s.

Heritage is currently pending in the New York Supreme Court before Justice Jeffrey K. Oing, and updates regarding this case will follow.

What Does the Future Hold for Auction House CNCs?

In addition to Heritage, recent shakeups at Christie’s and Sotheby’s have reinforced how important CNCs are for auction houses. For example, after the former chairman of Christie’s Americas, Marc Porter, resigned his position with Christie’s in December 2015, The New York Times reported that “after a noncompete period of about a year, [Porter] will join Sotheby’s in a high-ranking position that has yet to be announced but is expected to involve international client development.” The fact that Porter must wait about a year before joining Sotheby’s puts both Sotheby’s and Porter at a distinct disadvantage: the company must hold Porter’s future position open during this time period while Porter awaits the expiration of the CNC period before joining Sotheby’s.

Interestingly, it appears that Sotheby’s attempted to renegotiate Porter’s CNC with Christie’s by offering to waive the CNC of a former Sotheby’s employee who planned to join Christie’s. The New York Times reported in February 2016 that Sotheby’s offered to release Guillaume Cerutti, former Sotheby’s deputy chairman in Europe and chief executive in France, from a CNC if Christie’s would respond in kind and release Marc Porter from his CNC obligation before the contracted duration of the CNC. Reportedly, Christie’s declined this offer.

CNCs in the auction house world may be an attempt by top houses to avoid any semblance of collusion. In 2000, both Christie’s and Sotheby’s settled a $512,000,000 price-fixing lawsuit “amid allegations that the two auction houses had colluded on fixing the commissions paid by buyers and sellers of art.” Accordingly, strong CNCs in auction house employment contracts may serve as preventative measures to demonstrate a complete lack of collusion on the part of either house. What is more likely, however, is that the competing businesses wish to avoid client poaching and using valuable insights learned at their former place of employment in unfair business practices that may result from well-informed individuals using the information for the benefit of a new employer.

Conclusion

While there are thousands of auction houses worldwide, the number of leading international houses is much smaller and, as such, employment opportunities at top-tier houses are limited. Either due to the corporate culture or the CNCs, changing allegiances between these top houses incite great interest in both clients and the media. The widespread use of CNCs in auction house employment contracts serves to encourage institutional loyalty and decrease lateral movement between the top houses, but the question remains–who really wins when CNCs are strictly enforced in the auction house world?

Sources:

 

*About the Author: Elizabeth Weber is a lawyer living in Brooklyn, NY. Elizabeth graduated from the University of Florida Levin College of Law where she received her certificate in Intellectual Property Law and served as an active member of the Art Law Society and the Journal of Technology Law and Policy. Elizabeth is the Spring/Summer 2016 Postgraduate Fellow with the Center for Art Law.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Instead, readers should seek an attorney with any legal questions.

 

Protect Your Face: Body Art and Copyright (Part II)

By Samantha Elie*

While some of us makeup challenged women consider it a feat of artistic brilliance when we achieve that perfect cat eye with our eyeliner, an individual’s makeup art is not protected under copyright law unless that cat eye is the final touch in a Cat’s stage makeup. In the landmark case Carell v. Shubert, 104 F.Supp.2d 236 (S.D.N.Y. 2000), the Southern District of New York held that the stage makeup featured in the Broadway musical Cats was protectable under copyright law. Even though the actors in the show changed, the court considered makeup to be sufficiently fixed in the same way they consider choreography (with its ever-changing dancers) to be fixed. The Cats makeup, which required up to eight layers of makeup and several hours of work each night, was found to be an original work of authorship that is fixed in a tangible medium, thereby satisfying the elements necessary for copyright protection under 17 U.S.C. § 102. Carell will

cats

One of the characters from Cats!

likely serve as an important precedent for Paramount Pictures and CBS, who filed a complaint in December 2015 claiming copyright infringement against Axanar, a Star Trek fan film. The complaint, Complaint, Paramount Pictures Co. v. Axanar Prod. Inc., No. 2:15-cv-09938-RGK-E (C.D.C.A. Dec. 29, 2015), alleges a wide variety of violations, ranging from copyright infringement of plot points to characters to cosmetic details. The complaint includes claims that Axanar infringed “Klingon’s spiky makeup and the Vulcans’ pointy ears and eyebrows.” Because each claim of infringement must be considered individually, the court should examine individual characters’ makeup separately not only from each other but also separate from the plot points and use of phrases such as “beam me up.”  According to Carell, this original makeup, fixed in countless movies and television episodes, may also receive copyright protection. It is now up to the court to determine whether Axanar infringed on these distinctive character features.

The creative use of makeup may also garner IP protection under Trademark Law. When stage makeup is distinctive enough and used to identify a source, such as the black and white geometric full face makeup of the band KISS, it may be trademarked under the Lanham Act. While copyright protects original works of authorship, trademark protects distinctive pictures, words, or symbols used by businesses to identify goods or services in commercial activity. Registering a makeup design with the Patent and Trademark Office is uncommon, with the band KISS being the first to register a makeup-related trademark and subsequently holding most of the makeup registrations according to IPelton. Initially, the USPTO denied KISS’s application. However, the band’s lawyer, Raymond E. Scott, was able to persuade the trademark office to allow protection for the band’s makeup by proving that the distinctive makeup was more recognizable than the actual band members. To accomplish this, Scott “actually had somebody sit in for Peter Criss, the drummer, and wear the same make-up and nobody knew” the difference.

While extremely unique and time/labor intensive stage makeup may be protected by both copyright and trademark law, everyday makeup cannot be a source identifier protected by trademark law and lacks sufficient originality for copyright law. Everyday makeup may even be considered scènes à faire — an element of a creative work that is not protected under copyright law because it is customary to the genre (for example, a spy movie is expected to contain secret gadgets hidden in watches). So where on the spectrum from everyday makeup to the unique character makeup does the blurry line of copyright protection lie? Like everyday makeup, high fashion or ‘special day’ makeup — i.e. wedding, prom, red carpet, or any time a limo is involved — will not receive copyright protection. While it is customary for wedding or fashion photographers to credit makeup artists in their portfolios or magazines, it is unnecessary in the eyes of the law. The photographer retains full copyright of the finished photograph and the makeup artist has no legal recourse nor inherent right to use the photograph in their own portfolio. One way to avoid any confusion is for makeup artists to have a contract with the photographer setting out what is expected of both parties. Expectations may include the specific rights of each party, who will be credited for what, and where and how each party will receive credit.

The most recent question to arise in the realm of makeup art is whether a makeup artist can copy an avant garde artist’s dramatic facial implants without plagiarizing the original artist’s work. On January 6, 2016, c

gaga-copy

Still from “Born This Way

ontemporary French artist Orlan requested subpoenas in Manhattan federal court intending to depose the creative team, including makeup artist Billy Brasfield, behind Lady Gaga’s video for “Born This Way.” The 2011 “Born This Way” video features Lady Gaga dancing around sporting what the media called “bizarre flesh-colored facial horns” accentuating her cheekbones and forehead. While Gaga’s face in the video seemed shocking to the American media, those in the French art scene familiar with Orlan saw the video and body modification as reminiscent of Orlan’s “Carnal Art” from a quarter century before. From 1990 to 1995, the French artist underwent nine plastic surgeries, altering her face and body with implants and documenting the process. Additionally, at one point during Gaga’s video, her head is placed on Plexiglas surrounded by equally made up plastic decapitated heads, an apparent  nod (or ripoff) of Orlan’s 1996 work “Woman With Head.” Orlan and her team waited two years to bring the plagiarism suit against Gaga and her creative team for $31.7 million, originally filing suit in 2013 in Paris. Now, after almost three additional years, Orlan transferred the case to New York.

With so many potentially infringing images in Lady Gaga’s video, it is unclear whether Gaga’s prosthetic makeup will be held as infringing upon Orlan’s plastic surgeries or whether that issue will ever even come to a head. Even though Carell held that makeup is protectable under copyright law, the landscape of makeup art and copyright law is still relatively undeveloped. If cases such as Orlan and  Axanar proceed to trial, they could help brighten the line and provide guidance in the future for the legal protection of makeup art.

Selected Sources:

*About the Author: Samantha Elie (J.D Candidate 2017) is a legal intern with Center for Art Law and a student at the Benjamin N. Cardozo School of Law. She may be reached at selie@law.cardozo.yu.edu.

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

Copyrights: To Register or Not to Register, That is the Question

By Elizabeth Weber, Esq.*

Copyright protection is a cornerstone of intellectual property law for those who create expressive works. However, a startling number of artists do not register their copyrights with the U.S. Copyright Office for one reason or another, ranging from a lack of knowledge on how to go about registering a copyright or the unwillingness to register because a work is, technically, protected under copyright law the moment it is created. Whatever the underlying reason, those who do not register their copyrights are at a stark disadvantage for one main reason: an unregistered copyright holder, meaning the individual who owns the unregistered copyright, is precluded from suing an individual who infringes upon the work’s copyright in court. In short, only registered copyright holders may bring actions of copyright infringement against alleged infringers.

With this in mind, Center for Art Law believes that providing some basic information on copyrights and copyright law to our readers would prove beneficial. Please note that this article does not, in any way, shape, or form, constitute legal advice. If our readers have any questions about copyright law, we strongly urge them to consult an attorney.

A Bit of Background Information on U.S. Copyright Law

Modern copyright law stems from the United States Constitution. The Constitution granted Congress the power to issue both patent and copyright protection “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art. I § 8, cl. 8.

Copyright law aims to achieve two distinct goals: first, to provide authors the exclusive right to benefit from their creative works for a limited duration and, second, to stimulate the creative atmosphere by protecting works from unfettered widespread use. Thus, Congress incentivized the creation of artistic works by imbuing authors with the exclusive right to use and benefit from such works for a set period of time.

What is Copyrightable Subject Matter?

Modern copyright law is codified in Title 17 of the United States Code. 17 U.S.C. § 102 (a) states that “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression” and includes categories like literary, pictorial, and audiovisual works. Both published and unpublished works may qualify for copyright protection. Thus, so long as an artistic work is original and fixed in a tangible medium of expression, it may garner federal copyright protection.

The Code specifically precludes ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries from garnering copyright protection. 17 U.S.C. § 102 (b). However, the expression of these precluded subject matters may be protected in some limited circumstances.

Why Register A Copyright?

Once a copyright is infringed, the copyright holder may act to stop the infringer from exploiting the infringed copyright. The damages for infringement depend on whether the work was registered with the Copyright Office before any of the exclusive rights were violated. The amount of possible recovery ranges from $0.00, as actual damages may be nominal, to $150,000.00 per willful infringement if the copyright holder elects to seek statutory damages.  More detail about actual and statutory damages will be provided in the Remedies for Infringement: Actual Damages and Profits versus Statutory Damages section below.

A Copyright Basics Circular provided by the U. S. Copyright Office indicates that copyright registration provides the copyright holder with a number of advantages, including establishing a public record of the claimed copyright, which may dissuade potential infringers from unlawfully using the work; allowing the copyright holder to file a copyright infringement claim in court; establishing prima facie evidence of the copyright’s validity and of the facts set forth in the copyright certificate; and, “[i]f registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.”

Accordingly, registering a copyrighted work not only allows a copyright holder to sue an alleged infringer, but it also allows the copyright holder to seek statutory damages and attorney’s fees if the copyright holder registered the copyright within a certain time frame as discussed in 17 U.S.C. § 412. This may lead to a substantially higher damages award, which will be discussed in the Remedies for Infringement: Actual Damages and Profits versus Statutory Damages section below.

How to Register a Copyright

An application to register a copyright must contain three essential elements: 1) a completed application form; 2) a nonrefundable filing fee; and 3) a non-returnable deposit, which is a copy of the work being registered and deposited (hence the name) with the U.S. Copyright Office. These forms are available on the U.S. Copyright Office website. For reference, a step-by-step copyright registration guide is available on pages 7-12 of the Circular mentioned above.

Additionally, an applicant does not need a lawyer to register his or her copyright, so the applicant may fill out the requisite paperwork, send in the filing fee, and deposit a copy of the work with the U.S. Copyright Office at his or her own volition.

Copyright Infringement

A valid copyright issued by the U.S. Copyright Office provides the copyright holder with the exclusive right to use, reproduce, prepare derivative works, and perform the work publicly. If a third party infringes upon these rights and the copyright holder registered his or her copyright, the copyright holder may file a copyright infringement suit against the alleged infringer. The copyright holder may sue for injunctive relief, for the court to impound the infringing articles, and/or for damages stemming from the infringement.

Remedies for Infringement: Injunctive Relief and Impounding Infringing Works

If granted by the court, an injunction forces the infringing party to cease the infringing activities. Also, a copyright holder may move for or the court may order sua sponte the impounding of infringing works as the court deems reasonable. Finally, the copyright holder may seek either actual damages and any additional profits from the infringement or statutory damages.

Remedies for Infringement: Actual Damages and Profits versus Statutory Damages

A copyright infringer is liable for either 1) actual damages and profits stemming from the infringement or 2) statutory damages. A registered copyright holder is entitled to recover the actual damages suffered as a result of the infringement along with any additional profits gained from the infringement.

Alternatively, a registered copyright holder may elect, at any time before a final judgment is rendered, to recover statutory damages in lieu of actual damages and profits. Basically, statutory damages are set forth in the statute itself as opposed to being calculated based upon the harm suffered by the victim. In terms of copyright infringement, amounts vary for statutory damages from no less than $750.00 to no more than $30,000.00 per infringement as the court deems just.

Additionally, if the registered copyright owner proves (and the court finds) that the opposing party willfully infringed upon the copyright, the court may increase a statutory damages award to no more than $150,000.00 per infringement. Statutory damages awards are not always big money, though; if a registered copyright holder elects statutory damages and fails to prove willful infringement, the court may reduce the statutory damages award to no less than $200.00 per infringement.

Accordingly, the election of either actual damages and profits or statutory damages should be considered a strategic litigation decision. Registered copyright holders should consult with their attorneys and carefully consider the pros and cons of electing either set of damage awards.

Conclusion

There are certainly benefits derived from registering a copyrighted work. To summarize, in addition to allowing a copyright holder to file an infringement suit against an alleged infringer, registered copyright holders may also seek statutory damages and attorney’s fees depending upon when the holder registers the copyright – potentially leading to significantly higher damages awards.

However, artists should remember that simply because their works may be copied without permission, they need not take action. There is no requirement to enforce one’s copyright and there may be quantifiable benefits in seeing one’s work appear in another’s creative expression. While it is a good idea to consult an attorney with intellectual property questions and to protect one’s exclusive rights, the ultimate decision regarding these rights is open-ended and subject to the copyright holder’s interpretation.

Sources:

*About the Author: Elizabeth Weber is a lawyer living in Brooklyn, NY.  She graduated from the University of Florida Levin College of Law where she received her certificate in Intellectual Property Law and served as an active member of the Art Law Society and the Journal of Technology Law and Policy. She is the Spring 2016 Postgraduate Fellow with the Center for Art Law.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Instead, readers should seek an attorney.

WYWH: Recap of “Art, Law and Crisis of Connoisseurship Conference”

By Marie H. Kramer*

Screen Shot 2015-12-10 at 5.28.08 PM.pngOn Tuesday, December 1, 2015, the conference titled, “Art, Law and Crises of Connoisseurship” took place at The Society of Antiquaries of London, Burlington House, London, UK. It was an international conference organized by ArtWatch UK, the Center for Art Law and the London School of Economics Cultural Heritage Law (UK). The program featured nineteen speakers, including artists, art historians, scientists and lawyers from Western and Central Europe as well as the United States, discussing how the ‘eye’ of the connoisseur interacts with art history and law. The conference was divided into three parts.

Part I: The Making of Art and the Power of Its Testimonies

Michael Daley, Director of ArtWatch UK and one of the program organizers, opened the conference with his essay “Like/Unlike; Interests/Disinterest,” which focused on the 1991 trial of Professor James Beck in Italy. Columbia U. Art History Professor Beck was accused of aggravated criminal slander (which carried a possible three year imprisonment) for his critical comments on a restoration of the sculpture, an effigy of Ilaria del Carretto in Lucca Cathedral. Beck had opined that the restorer ruined the sculpture by stripping its ancient patina to remove scratches and covering it with oil to create a new, shiny surface. Beck was ultimately acquitted of the charges setting precedent for the protection of future criticism of art restoration. After the trial, Beck and Daley joined forces to set up ArtWatch International, an organization dedicated to advocate for the protection of art against harmful restoration. The full story of the trials can be found in the book, Art Restoration: The Culture, the Business and the Scandal, co-written by Beck and Daley, which also includes criticism of the cleaning of Michelangelo’s Sistine Chapel frescoes. Daley showed examples of the restoration effects on the Sistine Chapel, where delicate layers of shadow that the master painted himself, were removed under the guise of ‘cleaning’ off dirt deposits.

Next, Euphrosyne Doxiadis, a Greek painter and scholar, spoke about her three decades of research and criticism of the Rubens attribution of Samson and Delilah in the National Gallery in London. Her research of the provenance and the work revealed engravings and other painted ‘eye witnesses’ (copies made of the original Samson and Delilah painting by Rubens) that she contends do not match the version currently hanging in the National Gallery. Additionally, using her artist’s eye and the availability of high-resolution digital photographs, she observed visible differences in brush strokes from known Rubens paintings, as well as the use of different pigments. This is especially important because Rubens only used different red pigments to shade and highlight his red areas, rather than the white pigment used to lighten the red dress of Delilah in the National Gallery version. Now, still, Doxiadis continues to struggle to get her opinions heard and recognized by the National Gallery.

Jacques Franck, a French art historian and painter trained in Old Master techniques, explained “[w]hy the Mona Lisa would not survive modern day conservation treatment.”  Franck, who is a recognized authority on Leonardo da Vinci, has conducted an extensive investigation of the techniques used by Leonardo, especially his ‘sfumato’ (‘smoky finish’) method, in which colors and shades melt into one. Franck, who believes he has discovered how Leonardo accomplished this technique based on his years of personal experimentation, explained to the conference attendees that Leonardo applied ultra-thin layers of glaze and pigment to make his transitions, each layer only a few micrometers thick. Franck suggests that, clearly, modern conservation techniques that ‘clean’ off any of these thin layers of glaze would destroy the Mona Lisa and other Leonardo masterpieces.

With a continued focus on Leonardo Da Vinci, Ann Pizzorusso discussed the master’s work from the perspective of a geologist. Pizzorusso is a US professional geologist and a Renaissance scholar. She explained how geology can be used as a tool for determining attribution. Specifically, she noted that Leonardo was renown, not only as an artist, but also as a scientist. Leonardo carefully studied geology and botany, making extensive drawings of the world around him. Comparing the Virgin of the Rocks compositions hanging in the Louvre and in the National Gallery of London, Pizzorusso noted some odd differences. She could plainly identify the various rock formations in the Louvre version, but not so with the National Gallery version. Additionally, she noted that the plants in the National Gallery version, according to a botanist she consulted, were imaginary – not the precise petals and foliage of actual plants – a mistake she doubts Leonardo would ever make. Thus, she questions the attribution of the painting in the National Gallery.

Robin Clark, Sir William Ramsay Professor Emeritus at University College London, an inorganic chemist and spectroscopist, gave a fascinating discussion of the use of Raman microscopy (RM) to identify pigments in the palette of artwork. He explained how every pigment has a distinct pattern of scattered photons that can be seen after focusing a laser beam through a microscope—collectively referred to as its Raman spectrum. This unique pigment identifier is invaluable in determining the composition of the pigments and can give tremendous insight for authenticating and dating artwork, as well as conservation and restoration.

Unfortunately Segolene Bergeon-Langle, France’s Honorary General Curator of Heritage and a member of the Louvre’s preservation and conservation committee, was unable to attend the conference, but she provided her remarks, and Daley presented her main points about the relationship between science and art. She contends that scientific analysis can cause restorers to overlook the original artists’ formulations. For example, during the restoration of Leonardo da Vinci’s The Virgin and Child with Saint Anne, in the Louvre, the Louvre’s international advisory committee on the restoration concluded that there was blanching (whitening) of a layer of varnish due to moisture or ageing that needed to be removed. Bergeon-Langle strongly disagreed, recognizing that the whitened area was not a later varnish to be removed, but was original to the painting – and perhaps a device used by the painter. She resigned from the restoration advisory committee in protest to the removal of the varnish and ‘over-cleaning,’ which left a visibly brighter composition. As an advocate for responsible stewardship, she contends that different fields of science and connoisseurship need to work together, so that the proper scientific questions are asked, and to permit art connoisseurs to work with scientists to collaboratively analyze and understand the true meaning of the results.

Michel Favre-Felix, a French painter and President of ARIPA (Association for the Respect of the Integrity of Artistic Heritage), discussed how some art restorers have dramatically changed certain works of art because they failed to look at the testimony of historical copies. One of the restorations he discussed was Veronese’s The Pilgrims of Emmaüs. The original, painted in 1560, had been changed more than once over the past 450 years; but there had been engravings made over the course of history, as well. Each restoration made changes that compounded prior mistakes. For example, a restoration in the 1950s deemed that the neckline on the cloak worn by the Pilgrim Luke was an overpaint from the 19th century, and removed it, notwithstanding an 18th century engraving showing that very neckline. These errors and others were compounded again in the Louvre’s more recent 2003-2004 restoration. The piece today makes a good example for the study of art restoration and perhaps, what not to do.

Kasia Pisarek, an independent art historian and research specialist on attribution in London, discussed modern attribution, specifically, the case of La Bella Principessa, a chalk and ink drawing on vellum depicting the profile of a girl appearing to be 15th century. It was recently attributed as a lost drawing by Leonardo da Vinci, but Pisarek proposed several arguments against such a finding. For example, she questioned the story that the vellum came from the Sforziad manuscript in Warsaw, noting that, among other problems, the hole punches that would have held the vellum sheet in place do not match the supposed original source of the drawing, the Sforza family album, which has five holes. Additionally, she discussed how the style and technique of the drawing are very different from Leonardo’s, but that several of his works and a sculptured bust by Cristoforo Romano might have been the sources for the drawing. The controversy will continue—indeed, convicted art forger Shaun Greenhalgh has recently claimed that he forged this “Leonardo” modeled after a girl he knew in 1975.

The first part of the conference was concluded with a brief discussion and a Q&A moderated by one of the conference organizers, Irina Tarsis, of Center for Art Law. A heated discussion ensued surrounding La Bella Principessa’s attribution that could only be categorized as a battle of experts.

IMG_20151201_145913

Part II: Righting the Record – Diverse Experts as Authority

Tatiana Flessas, professor of cultural heritage law at the London School of Economics and one of the conference organizers, introduced the early afternoon speakers, starting with Brian Allen, Chairman of the London Old Master dealers Hazlitt Ltd. Allen discussed what he termed ‘the new art history’—a change in the teaching of connoisseurship, especially in the UK, since the 1980s. He has noticed that universities are focusing on the social history of art, and not training art history students to differentiate artists by their stylistic traits. The effect is that fewer art historians will be able or willing to make attributions, and forgeries can be missed.

Peter Cannon-Brookes, former museum curator with strong interests in conservation and security, presented his essay, “Reconciling Connoisseurship with Different Means of Production of Works of Art.”  He follows Brian Allen’s discussion of the change in connoisseurship and how well modern art historians and connoisseurs really understand art from long ago. He questioned whether the more modern analysis of art—post-war era art to the present—could apply to art created in the past, and the processes used throughout the ages.   

Continuing with the theme of the changing nature of connoisseurship, Charles Hope, former Director of the Warburg Institute, discussed how modern connoisseurs have been unable or unwilling to support their basis for attributions. Often, two types of connoisseurship are at odds with one another: that based on expertise acquired over a long time and that based on using historical evidence and reason. In more distressing terms, Hope highlighted the fact that decisions about attribution are not based on the actual evidence to support the attribution, but left to a decision by vote.

Martin Eidelberg, Professor Emeritus of art history at Rutgers University, next discussed how science alone will not solve authentication issues, that there needs to be a collaboration among different disciplines in addition to extensive time for study. While creating a catalogue raisonné of the paintings of Watteau, he discovered how the provenance and scientific analysis of the paintings were not always a reliable means to determine accurate authorship and could lead to various misattributions.

Robin Simon, Editor of The British Art Journal and Honorary Professor of English, UCL, explained his discovery of multiple fake paintings, which were hanging in the MCC (Marylebone Cricket Club). Simon discovered that a single artist, between 1918 and 1948, painted over fifty paintings depicting cricket matches that purportedly dated from the 16th-20th centuries. After outing the pictures, they were removed from the MCC and quietly given to dealers, although a few fakes still remain in the MCC. Interestingly, Simon learned that the fake paintings were later sold to a wealthy collector who believed them to be authentic. So, the fakes have worked in two swindles.

A guest lecturer at the LSE and Director of the Art Law Foundation, Anne Laure Bandle, discussed her PhD paper on the sale of sleepers at auction and the liability of the auction house in such dealings. She focused on the notable Thwaytes suit against Sotheby’s for negligent advice regarding the value of The Cardsharps—allegedly missing the current expert attribution to Caravaggio. The High Court ruled in favor of Sotheby’s, finding that it had met its due diligence by using highly qualified experts who reasonably concluded that the quality was not sufficient to indicate a Caravaggio, rather than just a ‘follower.’

The next speaker, Elizabeth Simpson, Professor at the Bard Graduate Center in New York, departed from the field of fine arts to discuss the use of connoisseurship in the study of ancient art. Specifically, she explained how the ‘eye’ of the connoisseur has been used to identify the artists of ancient Greek artifacts. For example, by studying the stylistic traits of ancient Greek vases, scholars have been able to determine that two separate artists created works on two sides of the same vases – the Lysippides Painter (black-figure technique) and the Andokides Painter (red-figure). Connoisseurship also reunited disconnected ivory pieces stored in the Metropolitan Museum of Art into the ancient chair or throne from which they came. The ivory pieces had been excavated without any record of the source or context of the figures. An investigation of the pieces and comparison to similar ivories with known provenance revealed how they fit together and their source (Anatolia). 

Part III: Wishful Thinking, Scientific Evidence and Legal Precedent

During the final portion of the program, participants discussed the implications of expert connoisseurs and science in the courtroom.

Irina Tarsis, an art historian, New York attorney, Founder and Director of Center for Art Law, and one of the program organizers, contextualized the litigation involving the renown Knoedler Gallery. Although of impeccable reputation, the Knoedler closed after more than 160 years in business in the face of at least ten lawsuits against the Gallery for selling forgeries. The Gallery sold over fifty paintings, many of which were thought to be by well-known abstract expressionists. They had been consigned by Glafira Rosales, who has now admitted to the forgeries. Thus, the question is, what was the duty of the Gallery to ensure appropriate authentication?  Interestingly, Tarsis reported that none of the museum purchasers have brought suit yet. Several of the private collectors who have brought suit have settled. Thus, the issue of a gallery’s due diligence regarding authentication and attribution in these matters has not been decided by the courts. The question also remains whether there is insurance coverage for all of the remaining claims and potential claims. The usual insurance policy may cover theft or damage to works of art, but not necessarily for loss due to misattribution. Further, the Knoedler may have a policy covering errors and omissions by its staff, but unlikely covering acts of fraud. The message is clear that collectors and dealers cannot rely on the representations of even a highly reputable gallery alone, without performing their own due diligence into authentication to protect themselves. Between December 1st and December 10th, one of the two Knoedler cases slated to go to trial in the January 2016 was settled.

Nicholas Eastaugh, Founder/Director of Art Analysis and Research Ltd., London, discussed the science of analyzing fine arts – the term he uses is ‘technical art history and materials science.’  He performs chemical analyses of the materials used in a painting and searches for anomalies in those paintings. For example, he analyzed Red Picture With Horses, supposedly a 1914 painting by Campendonk, but found titanium white pigment, which was not available at that time, evidencing a forgery by Wolfgang Beltracchi. He also uses high resolution digital imaging, X-rays and ultraviolet fluorescence to see below the painted surface. Earlier sketches and drawings (pentimenti) can show the true artist’s creative process in altering the composition along the way, rather than someone who is simply making a copy.

Megan E. Noh, Associate General Counsel of Bonhams, discussed recent legal trends in authentication disputes. One important change is that artists’ foundations and authentication boards have disbanded or stopped issuing certifications of authenticity. For example, there are no longer boards to authentic works by Basquiat, Warhol or Lichtenstein. This trend is coupled with increased litigation concerning authenticity. Modern litigants rely more on scientific evidence, but it often becomes a battle of the experts. Authenticators, however, are understandably cautious in giving opinions for fear of liability. Noh suggested some possible solutions, such as indemnification agreements or ‘no sue’ agreements to protect authenticators. In New York, there is an attempt to amend the Art and Cultural Affairs Law to protect authenticators by requiring enhanced pleading by plaintiffs filing suit against authenticators, and fee shifting requirements for the prevailing party. Favorable case law may also help reduce liability for authenticators.  Indeed, since the conference, a French court has overturned a 2013 judgment that required art expert Werner Spies to reimburse a collector for the price of a work that turned out to be another Beltracchi forgery, but that Spies authenticated as genuine in a catalogue raisonné. The French court held that an authenticator for a catalogue is not to be held to the higher standard of care as that of an expert consulted in the sale of a work.

Conclusion:

This fascinating conference brought together international experts in various fields of art, art history, science and law. The speakers recognized that controversy abounds as experts continue to reach different opinions regarding attribution of works of art, as well as what efforts to make to properly conserve works of art. As the value of art generally rises, the stakes are high. Disagreements over attribution are increasingly brought into the courts, where the battle of the experts in connoisseurship and science is left to the decision of judges and juries (those furthest from the art world). The eye of an experienced connoisseur, who can distinguish artistic styles, is still desperately needed. The ability to perform such a close inspection and analysis should be supplemented by modern scientific advances, but should never be replaced. Papers from the conference are being prepared for publication in 2016. In the meantime, the take away from the conference is to do due diligence and seek unbiased opinions for authentication or intervention in art handling from a combination of sources, including connoisseurs and scientists.  The conference also raised topics that warrant further exploration, such as ethical guidelines for conservators and how to seek and determine a consensus in opinions.

Suggested Readings:

About the author: Marie H. KramerPennsylvania attorney living in the United Kingdom, studying art and cultural heritage law. She can be reached at marie@kramerlegalbriefs.com 

What is Art Law: Part II

By Irina Tarsis, Esq.

What isn’t Art Law? Before The Encyclopedia Britannica went out of book printing business, and long before the field of “art law” crystallized, scholars in different discipline wrote about “the art of [you fill in the blank].” Until New York Public Library on the 42nd Street implements its ambitious yet shortsighted Central Library Plan, you should easily access such titles as The Art of Family Law (Edinburgh, 2011), The Art of War at Sea (London, 1788), The Art of Cookery (Boston, 1798), The Art of Swimming (London, 1699), and hundreds others titles on the subject of specializations that rise to level of art when perfected. Granted, there is no book on the art of art law, yet.

Law and the arts (fine, performing, graphic and everything in between) are ubiquitous, you just have to look and listen. Those who pay attention realize that issues such as copyright of works in public domain that were pulled back under the copyright act in the Supreme Court Decision of Golan v. Holder, 132 S.Ct. 873 (2012)are art law relevant. Those who attended the Cariou v. Prince, 784 F.Supp.2d 337 (2011) appeal hearing at the 2nd Circuit on Monday, May 21, 2012 realized it was a manifestation of art law. There, three presiding judges, having heard cases on sexual abuse, maritime law and arbitration moments earlier, conceded that the decision regarding multi-million dollar art works of Richard Prince derived from photographs of the little-known Patrick Cariou was “very important” and granted as much time to the counsel as was necessary to argue transformative use and the effect of Prince’s work on the potential market of Cariou’s works. The Order Granting Joint Motion to Dismiss allegations of artists and their heirs against auction houses for failing to comply with California Resale Royalties Act issued on May 17, 2012 fell squarely under the art law umbrella. The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act proposing smooth sailing in borrowing art of dubious provenance from foreign sovereigns currently in review at the Judiciary Committee is … well you get the picture.

That’s four recent examples, of so many more. And yet, somebody is sure to ask about all the examples of cases and transaction that have nothing to do with the arts, a multitude that has nothing may touch on the interests and needs of artists, collectors, dealers, museums, galleries, etc. Well if it is not art law, then clients better hope their counsel is representing their interests at the highest level of artistry.

Sources: The Chronicle of Higher EducationThe New York Times; and others.