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

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

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

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

"What's in a Name?" Peter Paul Biro v. Condé Nast for Defamation

"Sticks and stones may break my bones

But names will never hurt me."

19th Century English nursery rhyme 

It is hard to believe that there ever was a time when name calling was innocuous. In 2011, Peter Paul Biro, a Canadian citizen filed a libel Complaint against David Grann, a writer and a journalist, and other Defendants, for defamation and injurious falsehood resulting from Grann's article that appeared on the pages of The New Yorker magazine. In 2012, District Judge J. Paul Oetken dismissed parts of the Complaint, finding that Biro may not sue on most of the statements contained and flagged in Grann's article. However, J. Oetken held that four statements were actionable, although he was uncertain of the incremental reputational harm from these statements alone. 

On May 17, 2013, J. Oetken heard oral arguments from all parties as to the remaining actionable statements but withheld his judgement as to whether the case would proceed to discovery and trial. In general, to recover for libel (injury to one's reputation from a written expression), Biro will need to establish five elements outlined in Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 176 (2d Cir. 2000) : 

(1) a written defamatory statement of fact concerning the plaintiff; 

(2) publication to a third party; 

(3) fault (either negligence or actual malice depending on the status of the libeled party); 

(4) falsity of the defamatory statement; and 

(5) special damages or per se actionability (defamatory on its face).

Biro, is an art authenticator who looks for fingerprints impressions in works of art work, among other things, to determine authorship. In fact, he is credited as being the "first authenticator of art works through fingerprinting." Thanks to the Grann's reportage, he may be the last such authenticator as well.

"Charles is a journalist, but of course, not one of those
bottom feeders." The New Yorker cartoon by Mike Twohy.

In the late 2000s, David Grann visited Biro in his workshop in Montreal and interviewed him about "forensic provenance." In the first half of the resulting article, Grann describes how Biro became involved with "placing an artist at the scene of the creation of a work.” 

While the first half of the article is a benign narrative of the Grann-Biro interviews, with some striking attention paid to the spirits imbibed by Biro at various times, half way into the article, the tone changes, and Grann turns from the subject of art authentication to the subject of the art authenticator, and examine Biro under a microscope. But to what purpose? news? entertainment? something else? A discovery would go long ways to shedding light on the reporter's reasons.

Following, are some of the "plot thickens" quotes and findings from Grann's article:

• "...with this final flourish, the glittering portrait of Peter Paul Biro was complete: he was the triumphant scientist ...  But, somewhere along the way, I began to notice small, and then more glaring, imperfections in this picture. ... One of the first cracks appeared when I examined the case of Alex Matter..."

• "Reporters work, in many ways, like authenticators. We encounter people, form intuitions about them, and then attempt to verify these impressions. I began to review Biro’s story; I spoke again with people I had already interviewed, and tracked down other associates. A woman who had once known him well told me, “Look deeper into his past. Look at his family business.” As I probed further, I discovered an underpainting that I had never imagined."

• "During the eighties and early nineties, more than a dozen civil lawsuits had been filed against Peter Paul Biro...I found other cases that raised fundamental questions about Peter Paul Biro’s work as a restorer and an art dealer."

• "Elizabeth Lipsz, a Montreal businesswoman who had once been close to Biro, and who won a lawsuit against him for unpaid loans, described him to me as a “classic con man.” Her lawyer told me that Biro “was so convincing. He was very suave, soft-spoken, but after a while you catch him in different lies and you realize that the guy is a phony.” 

• Another lawyer who litigated two suits against Biro, G. George Sand, was liberally quoted including a statement that "[Sand] he told me he was amazed that Biro’s history had not tarnished his reputation and that he had reached such an exalted position."

• “Biro was either a shyster or a con man, and had found [aging art collector] an easy mark."

• "By the time that Biro took on “La Bella Principessa,” his reputation had become so solid, and the public appetite for forensic solutions had become so strong, that he no longer seems to have worried about watermarking his evidence or presenting a perfect match."

• "Perhaps Biro’s father had lacked that divine spark of originality, or perhaps he had sacrificed it while inhabiting the skin of immortal artists." 

Ultimately, Grann's article casts a distrustful light on Biro's business initiative and insinuates that traces of pigments and various fingerprints found on canvases Biro examined were forged. At least one individual approached by Grann who declined to malign Biro's work was relegated to the category of art owners "reluctant to bring charges" because "art crimes are often difficult to prosecute." The Biro unmasking is bookended on both sides by the story of "La Bella Principessa," a drawing that generated much attention in the art field as to its relationship to Leonardo Da Vinci. Read: La Bella Principessa Decision (Not So Pretty). 

At oral arguments last week, J. Oetken was particularly interested in the third elements of the Celle v. Filipino test: faul. He questioned counsel for both sides as to what constitutes a "public figure" for the purposes of defamation, whether Biro is a "public figure" as a matter of law, and whether art authentication is of "public concern" sufficient to merit a higher pleading requirements from Plaintiff.

The counsel for Biro, Richard Altman, argued that his client is no more a public figure than a socialite with a public divorce or an attorney defending his client in a public statement and that while art authentication is 'newsworthy', it is does not rise to the level of a "public controversy" as, for example, the debate on gun control does.

The counsel for Defendants repeatedly argued that Biro is a public figure and thus his claim fails because Grann had no malice when he published his article. According to David Schultz and other defense lawyers, there were either no known falsehoods in the published account or that Grann and others did not recklessly disregarded the truth when they insinuated that Biro's work was suspect. 

With the Court's decision imminent, it seems clear that Grann's article does expose Biro "to public ... shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or…induces an evil opinion of one in the minds of right-thinking persons, and…deprives one of…confidence and friendly intercourse in society.'" Karedes v. Ackerley Group, Inc., 423 F.3d 107, 113 (2d Cir. 2005) (quoting Celle, 209 F.3d at 177).  

Procedural History: Peter Paul Biro, Plaintiff v. Condé Nast, a division of Advance Magazine Publishers Inc., Defendants, 11 Civ. 4442

Source: New York Law Journal; The New Yorker; Biro v. Conde Nast, 11 Civ. 4442 (2012).

Mayan Temple Destroyed "Savagely"

The Mayan Nohmul complex was destroyed last week. 
Its stones were sold as road building material.

On May 13th, archaeologists and government officials in Belize discovered that the Nohmul complex site was destroyed.  It was one of the largest Mayan pyramids in Belize, an important ceremonial center located near the Mexican border.  Most shockingly, the temple's rock was sold simply as road gravel.  Archaeologists are calling the incident "savage." 

Although the temple was on private land, Belize law protects any pre-Hispanic structures.  A government investigation is currently underway and criminal changes may be brought against the construction company and land owner.  As we reported in February, Central American countries are increasingly taking measures to save pre-Hispanic sites and objects.  Countries such as Honduras are increasing mandatory prison sentences for looting and joining together to claim cultural objects, as was seen in April when Mexico, Peru, Guatemala, and Costa Rica unsuccessfully petitioned to stop a Sotheby's Paris auction of pre-Columbian artifacts.  

Jaime Awe, head of the Belize Institute of Archeology spoke to the Associated Press on May 14th.  He stated: "It's a feeling of incredible disbelief because of the ignorance and the insensitivity... they were using this for road fill.  It's like being punched in the stomach, it's so horrendous....To think that today we have modern equipment, that you can go and excavate in a quarry anywhere, but that this company would completely disregard that and completely destroy this building.  Why can't these people just go and quarry somewhere that has no cultural significance?  It's mind-boggling."

Source: "Builders Bulldoze Big Mayan Pyramid in Belize," NY Daily, May 14, 2013.

List price of "Cultural Heritage Law": $465.00 [No Joke]

Such much! Some enhanced appreciation of one's own cultural heritage comes from learning about it in a new language, if not in a new book. Let me share a "Russian" joke with you:

-- Excuse me, how much watch?
-- Near six.
-- Such much?
-- For whom how…

Which means:

«What time is it?»

«Almost six»

«So late?!»

«It depends.»

Incidentally, this joke was appropriated from the the cult film Casablanca (1942), where two Germans are discussing time in "English".

But back to art and cultural heritage law, which are also sometimes funny. Here are some of the good, bad and not funny jokes to be enjoyed at their expense:

• A painting attributed to Andy Warhol is bought for $185,000. Before it is offered for sale again, it is presented to the Andy Warhol Art Authentication Board and ultimately it is stamped "DENIED" not once but twice. Collector, whose property is thus defaced and devalued, sues. The court finds in favor of the Board but the victory that comes with a price tag of about $7 million. As the Andy Warhol Foundation stops authenticating Warhol Art, the comically inclined wonder, didn't the Foundation know that all good jokes must have three parts, and thus the painting should have been stamped three times?!  Read: Authentication Committees Disband.

• Fossilized bones of a T. bataar dinosaur, that died in the Cretaceous period, are improperly imported into the United States. Hundreds of hours chiseling and assembling bones of different dinosaurs from different places together result in a forfeiture of the newly assembled skeleton and a return of the beast to Mongolia. It should have been Siberia for a better punchline! Read: Fossils Dealer Wants his Dinosaur Skeleton Back.

• Art works gifted to the Brooklyn Museum by a long-time deceased Colonel turn out to be fakes. However, they may not be deaccessioned easily because all of the trustees of the estate of the sad colonel are deceased as well. In other words, they've gone extinct! [That was a dinosaur reference. Do you get it?!] Read: Of Brooklyn Museum, Colonel and Cy Pres.

• A new textbook on Cultural Heritage Law priced at half a thou dollars.  Now, that's a good one!

Why is that funny? If you don't get it, let you me try to explain. I just came across a new publication, entitled Cultural Heritage Law (of the International Law Series). It is edited by James A. R. Hafziger and it sells on Amazon, with a 9% discount as of May 9, 2013 for the whooping $421.65. Yes, such much! It is a hardcover, probably still in its first edition (no wonder) and over 850 pages long. 

Contributors to this volume include the deans of art law and the leaders of cultural heritage protection. To name but a few: Lawrence M. Kaye, Partner with Herrick Feinstein (NY), Patty Gerstenblith, professor at DePaul Law School (IL), Lyndel Prott, former Director of UNESCO’s Division of Cultural Heritage (Australia). The volume's editor is Professor of law and Director of International Programs at the Willamette University College of Law. In all seriousness, I am sure it is a worthy reference but who can afford it?! The collectors who now have fewer Warhols and dinosaur bones to acquire?  Perhaps, this anecdote would make for a good MasterCard commercial:

Fake Andy Warhol -- $185,000;

Legal treatise on Cultural Heritage Law -- $465.00;

2 hrs of blogging  -- $100;

Appreciating your cultural heritage -- Priceless.

Source: Amazon.com; Elgaronline.

Et tu, Poland?! Poland seeks return of 18 paintings taken by the Soviet Red Army in 1945

'Madonna and Child' by Lucas Cranach the Elder, sought by
 Poland for recovery from the Pushkin Museum.

The Russian Federation should beware all Ides. This Ides of May, on May 15, 2013, Poland's Minister of Culture and National Heritage, Bogdan Zdrojewski, broached the subject of recovering important art works from Russian museums. The works in question are listed in the "official restitution request by Poland;" they include paintings by Lucas Cranach the Elder and Jan Bruegel the Elder.  Some pieces are located in Moscow in the Pushkin State Museum of Fine Arts and others are in the Saratov State Art Museum.

These works probably belong to the so-called Twice Plundered victims; they were most likely taken by the Germans at the start of the war and then displaced for the second time by the victorious Red Army as spoils of war.

Bogdan Zdrojewski, photo by Matěj Baťha.

Some of the works were reported as being listed on museum websites as unidentified. Not surprisingly requests for the return of these cultural objects have been filed on a number of occasions but invariably they have been dismissed. In light of the improving relations between Poland and the Russian Federation, Zdrojewski is hoping for a different, more amiable outcome.

The immediate response from the Russian Cultural Ministry is a categorical no. As always, there is a block against this and all returns of artworks, or other cultural valuables, that were brought onto the territory of the Soviet Union after World War II. For example, Zdrojewski's counterpart, Vladimir Medinski, has been quoted as saying that any and all efforts to change the property rights of cultural valuables and artworks in Russia would be unwelcome, particularly because the trophy art taken from the territory of Germany and its allies was "paid for in blood of the Russian soldiers."

Vladimir Medinski, Newsru.com.

Medinski bases his response on the 1998 law “On Cultural valuables Displaced to the USSR as a Result of the Second World War and Located on the Territory of the Russian Federation” which nationalizes trophy art and declines return. However, Medinski admitted that the Ministry would be ready to faithfully execute favorable restitution laws if such were ever adopted. Given that there is are no known domestic initiative to alter the 1998 law and initiatives by the foreign nations have been futile, it is unlikely that Poland will get it's most recent request granted.

Other pending claims for cultural property located on the territory of the Russian Federation include the ongoing Chabad efforts* and the Hungarian claims.

Sources: Newsru.com; ArtDaily; Global Post.
Images: Wikimedia Commons, Wikipedia.

*For an overview of the Chabad dispute, read "Russia is no Congo: Chabad Decisions and Moscow Convictions."

NPR Story on the Field Museum's Financial Crisis Incites Sharp Comments from Listeners

The Field Museum is encyclopedic, with more than 20 million biological and
geological specimens and cultural objects. 

On May 6th, NPR's Morning Edition aired a feature on the Field Museum in Chicago.  The report is hackneyed, fitting into the genre of the modern American museum tale.  After cutting costs and staff layoffs, the museum is still $5 million in the red this year--with most of its budget for next year allocated to pay bond debt.  Last year the museum sold a large collection of George Catlin paintings for $15 million to pay for "certain staff salaries and for buying artifacts."

The highlight of the report was not the story in itself, but rather, the response it garnered from the public on the NPR website.  The comments and the passion with which they were posted reveals the public's views on museum struggles.  The discussion exposes that the troubles at the Field Museum (and any museum), are perceived through a kaleidoscope that includes the woes of Wall Street, the divergent extremes of politics, urbanization and suburbanization, the wealth gap and the growing baby boom generation. 


The Field Museum sold some of their George Catlin
collection at the December 2004 Sotheby's sale. 

The discussion began as soon as the storied aired with a Kristopher Heinekamp commenting: "The only functioning aspects of society are the things that directly benefit the Oligarchy.  All other social institutions fall to the wayside.  Can't afford a ticket to the Field [Museum]?  WELL, TOO BAD WEALTHY PEOPLE DON'T SHARE YOUR IDEOLOGY!  NO LEARNING FOR YOU!  Classy.  Cause, you know, MUSEUMS are now politicized.  My fondest memories of the Field Museum are definitely the Socialist Indoctrination Room, with a close second to the Liberal Brainwashing section.  What sick, craven world do you live in that MUSEUMS are somehow a "Liberal" institution?  What, is LEARNING a "Liberal" conspiracy?"

Geo Douglas wrote: "The story cited the sell off was 'to pay for certain staff salaries' as well as to buy artifacts.  That is outside of the guidelines of acquisition and care.  It's a conflict of interest.  That could make it possible for the money gained to go directly to the person who authorized the sell."  Julia T. responded: "Well, heck, Geo.  Isn't that kinda what we did with Wall Street?  Supposedly, the financial institutions were crumbling, back in 2008.  There was no money.  And a second Great Depression looked possible.  Then, Bush give them the TARP bailout.  Next think you know, we hear of CEOs getting multi-million dollar bonuses...." 

The commenters (note: not commentators) left very few suggestions.  Cat's Paw only had to say: "Go to the museum.  Spend some money there with your family." 

Exceptionally, the popular debate about what to do with struggling museums and art institutions can be boiled down with the comments of just two people.  Julia T. stated sarcastically: "God forbid, we preserve anything that could provide culture and knowledge to us or future generations."  General Specific responded: "Go ahead and preserve what you and your friends want.  No one is stopping you."

The NPR story and comments can be found at: "Chicago's Famed Field Museum Struggles to Dig Out of Hole," Morning Edition, May 6, 2013.

 

14 Years After Brooklyn Museum v. NYC: Mayoral Candidate Joe Lhota Says He Now Understands the First Amendment

Republican mayoral candidate Joe Lhota speaks out about his
role in the 1999 Brooklyn Museum v. NYC fiasco.

Joe Lhota, NYC mayoral hopeful, is facing tough questions about his involvement in the dispute between the Brooklyn Museum and the Guilani administration in 1999.  As Deputy Mayor, Lhota spear-headed the campaign to close the Brooklyn Museum and cut it's funding after Chris Ofili's The Holy Virgin Mary went on display.
In March of 1999 the Brooklyn Museum Board of Directors voted to keep the work on show and Lhota (in attendance as the mayor's representative) announced that as punishment the City would withhold funding of $500,000. The museum took the City to court.


In a deposition he gave on October 7, 1999 in the case Brooklyn Institute of Arts and Sciences v. The City of New York and Rudolph W. Giulani, Lhota stated that the museum's lease with the City required that the museum be free to all visitors, and can only charge admission with permission from the mayor.  For this reason, he argued, the City had the right to close the museum and refuse it's funding.


Chris Ofili, The Holy Virgin Mary, 1996.

The banter back and forth between Susan Buckley, attorney for the museum, and Lhota reveals that the City had misinformation and misinterpreted the information they had.  Lhota admits several times that he did not read entire statutes or documents, but only portions.  When asked why Lhota failed to attach legal references to his affidavit he responded: "I have not read them fully so I'm not sure I'd consider attaching something I hadn't read."

In November 1999, Judge Nina Gershon ruled that the city violated the First Amendment.  Interestingly, she noted that Lhota's testimony convinced her that the city or mayor did not have "veto power over the museum's decisions as to what to display."  The museum settled for $5.8 million.

Now on the campaign trail, Lhota is facing new scrutiny.  At a mayorial forum on Tuesday, Lhota said in reference to the case: "Do I regret doing it? Yeah, I regret doing it.  And I regret how embarrassing it was at the time."  But he affirmed that he still believes that Ofili's work was offensive "as a concept." 

 

In March however, The New York Times reported that Lhota had a different demeanor.  Michael Barbaro wrote that he was unapologetic--defending his conduct and motivation.   Lhota is quoted as saying: "I don't regret the tactics-- at all." 

 

However Lhota decides to "spin" his involvement will no doubt become the focus of more discussion as the election comes closer.  Jack A. Josephson, a former board member at the Brooklyn Museum, advises caution: "He did it once; he could certainly do it again.  If you are a museum person today, you'd have to keep this in the back of your mind.  They all should be worried that they might do something that would offend a Mayor Lhota."

 

Sources: "Joe Lhota Regrets Art Wars with Brooklyn Museum during Guiliani Years," NY Daily News, May 8, 2013; "For Mayoral Hopeful Who Lost Fight to Remove Art, No Regrets," The New York Times, March 27, 2013.

Fair Use Fails Mr. Brainwash: Judicial Stance on Infringement and Appropriation Art Swings the Other Way

Hot on the heels of appropriation artist Richard Prince's victory in the Second Circuit (covered here two weeks ago), a Los Angeles federal court has returned a less favorable ruling for appropriation and street artist Thierry Guetta, better known as Mr. Brainwash. Last week, district court judge John A. Kronstadt ruled that seven of Guetta's works, based on photographer Dennis Morris' iconic 1977 picture of Sid Vicious, deceased lead singer of punk rock group The Sex Pistols, was not protected by fair use, continuing a lack of predictability for future infringement cases  involving appropriation art.

Guetta is a street artist whose works typically appropriate well-known images of celebrities. He and his work were featured in Exit Through the Gift Shop, a documentary film by famed street artist Banksy. His works have fetched high prices at auction houses such as Philips de Pury since 2010 and in 2009 he designed the cover of Madonna's Celebration album. Since 2004, Guetta has used Morris' original photograph in at least seven works, including a large mural in La Brea in Los Angeles, a work made with broken vinyl records, and works that add a mole onto Sid's face and overlay blonde hair and splatters of paint.

In the present case, Guetta argued that his works should be protected by fair use because they are transformative and that his intentions in creating them differed from those of the photographer. In his declaration, Guetta stated: "I created the mural (with color) in particular because it was larger than life, like Sid Vicious, and I wanted to give him the respect it seemed like he did not get in life." He also called it a "commentary on Sid Vicious’s persona and on the nature celebrity generally." With a favorable outcome for the appropriation artist in Cariou v. Prince, a closely-watched copyright case in the Second Circuit decided two weeks ago involving Richard Prince's successful use of the fair use defense against infringement claims brought by photographer Patrick Cariou, Guetta was likely hopeful that the win signalled a positive outcome for him as well.

Unfortunately for the street artist, Judge Kronstadt rejected Guetta's fair use claim and arguments. The opinion states: "An independent review of Defendants' works shows that they are not sufficiently transformative... The Photograph is a picture of Sid Vicious making a distinct facial expression. Defendants' works are of Sid Vicious making that same expression. Most of the Defendants' works add certain new elements, but the overall effect of each is not transformative; Defendants' works remain at their core pictures of Sid Vicious." Kronstadt also clarified that "[t]here must be some showing that a challenged work is a commentary on the copyrighted one, or that the person who created the challenged work had a justification for using the protected work as a means of making an artistic expression." Kronstadt characterized Guetta's arguments as effectively arguing that appropriation art should be considered per se fair use. To this, he responded: "To permit one artist the right to use without consequence the original creative and copyright work of another artist simply because that artist wished to create an alternate work would eviscerate any protection by the Copyright Act."

Guetta is no stranger to courtroom losses. In 2011, he lost a copyright case to Glen Friedman, another photographer who photographed the rap group Run DMC in 1985 (covered in our blog here). Guetta is currently involved in another lawsuit with the estate of photographer Jim Marshall, who sued the artist and Google last year for the unauthorized use of Marshall's photographs of musicians. The trial is set for July.

Does the current legal landscape regarding fair use and appropriation art provide any lessons for Mr. Brainwash (or his lawyers) for his upcoming trial? The current ruling seems to suggest that some "commentary or justification" is required for a work to be transformative, while the rulings of Cariou v. Prince and Blanche v. Koons (both cases involving successful fair use arguments by appropriation artists) suggest that fair use does not necessarily need to comment on the original image. Perhaps success for Guetta (and other appropriation artists) lies in changing the focus of his arguments. Cat Weaver, writing for Hyperallergic, suggests that Guetta would have more luck arguing that his work is parodying street art, an undertaking which requires "recognizable pop imagery to signify the way these sorts of images are used in street art."

One thing is certain: the line dividing a fair use from an infringing use in appropriation art--a medium defined by borrowing original from other sources--is likely to remain fuzzy and unpredictable for the foreseeable future.

For more on legal issues in street art, see our previous posts: Who Owns Street Art? and UNESCO Forced to Consider Street Art As Cultural Heritage

Sources: The Art Newspaper, Photo District News, Phaidon

Dispute over the Estate of Jack Tanzer Centers on Caravaggio Authentication

Caravaggio's "Supper At Erasmus"

The battle rages on over the estate of Jack Tanzer and the authenticity of a painting that the now-deceased Upper East Side gallery owner was convinced was the work of Renaissance master Michelangelo Merisi da Caraggio. The current dispute arises from the tireless work of Tanzer to authenticate a painting he acquired in 1983, which he was certain was the work of the 16th century painter, Caravaggio. His belief stemmed from the painting's strong resemblance to "Supper At Erasmus," one of the artist's quintessential works that demonstrates his skill at depicting chiaroscuro, the balance of light and shadows. Yet, skeptics doubt Tanzer's certainty, as the painting was not securely documented during his Caravaggio's lifetime and the fact that it bears a signature, which Caravaggio rarely did.

Tanzer spent his final two decades trying to prove the work was authentic. After his death in 2005, his friend and fellow art dealer Warren Adelson was named executor of Tanzer's estate. He also continued the quest to prove that the painting Tanzer purchased was the work of Caravaggio, of which Adelson owns a 25% share. However, after eight years and $500,000, Edward Tanzer, the dealer's son, tried to draw the line. In 2011, Edward filed a petition in Manhattan Surrogate's Court demanding Adelson's removal as executor. In the petition, Tanzer stated, "The efforts and finances expended by Adelson to authenticate the painting have not been reasonable and have caused the continuing postponement of the distribution of the estate." Namely, Tanzer is referring to Adelson's failure to transfer a $485,000 Westchester county condominium that was left to Tanzer. Adelson responded to the filings, stating that he cannot transfer the condo, as the estate has outstanding debt. Adelson includes himself as a creditor, saying that the family owes him 75% of the $500,000 he spent on the painting's authentication.

Last week, Tanzer made a subsequent filing, accusing Adelson of failing to provide an accounting of the estate assets as ordered by the court.

For his part, Adelson believes that the money spent will be worth it if the painting could be authenticated as a Caravaggio. He stated that "achieving such attribution of ownership will produce such substantial benefit to all persons interested that the expense will be more than justified." Art historian Robert Simon described the painting as "a close version of one of the artist's most celebrated canvases" and that it "is an impressive and imposing work and one that from all appearances would date from the beginning of the seventeenth century." If the painting could be authenticated, the work would be worth tens of millions of dollars. Caravaggio paintings are rare and highly coveted. In 1987, one of his early paintings "The Card-Sharps," sold for $15 million. However, until it can be authenticated, Simon estimated the painting's current value at $800,000.

Source: DNAInfo New York

Five Art Market Lessons from Recent Case Law

A growing number of investors have turned their attention to the art market. There, they are greeted by advisors, appraisers, brokers, experts and insurers. Art collectors and art investors hop from gallery to auction house to website, and their motives are as varied as the prices and mediums of the art and the structures of the transactions. In the midst of this exhilarating and ever changing marketplace, a review of recent case law identifies five fundamental lessons to keep in mind in navigating the art world.

I.  ACA Galleries, Inc. v. Kinney 
Lesson: Investigate before you buy 

          A real estate buyer is unlikely to close on a sale without proper investigation. Such investigation may include careful and repeated visits, professional inspections, review of board minutes and title reports, and securing title and homeowner’s insurance. By contrast, an art buyer may skip critical investigatory steps at great risk of loss. Such risk can be hedged by performing adequate due diligence, including but not limited to, independent professional inspection, review of the provenance, attorney review of the contract and securing adequate insurance.

          ACA Galleries, Inc. v. Kinney, 2013 WL 638835 (S.D.N.Y. 2013), ACA Galleries, Inc. (“ACA”) sued an art seller for selling a forged Milton Avery painting. The District Court granted defendant’s motion for summary judgment and dismissed the fraud claims, holding that “Kinney’s motion for summary judgment on ACA’s fraud claims must be granted because, as a matter of New York law, ACA’s reliance on any representations made by Kinney was unreasonable and thus ACA’s fraud claims fail.” Id. at *3. ACA cannot establish justifiable reliance because it had the opportunity to fully investigate the authenticity of the painting but failed to do so.” Id. at *3.

            Here, the Court recognized that ACA “failed to avail itself of the opportunity to have the painting inspected by the Avery Foundation or another expert prior to purchase...  ACA is in the business of buying and selling art. Such a business must be cognizant of forgery of the works of well known artists like Avery.” Id. at *4. The Court’s reasoning would be wisely followed by all buyers in an effort to avoid both purchasing a forged work of art and finding themselves without legal recourse in such an event.

II. Craig Robins v. Zwirner. 

Lesson: Get it in writing

            In Craig Robins v. Zwirner, 713 F.Supp.2d 367 (S.D.N.Y. 2010), plaintiff sued an art dealer claiming the dealer reneged on a promise to sell certain paintings by the artist Marlene Dumas. The Court noted “plaintiff has not come forward with any writing signed by Zwirner promising to sell paintings to Robins. Absent a writing signed by Zwirner, enforcement of the oral Gallery Agreement is barred.” Id. at 376. The lesson here is clear: if you feel strongly about that artist or her artwork, get the promise to sell in writing.

            “Under New York law a contract for the sale of goods for the price of $500 or more is not enforceable without a contemporaneous writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought.” Craig Robins v. Zwirner, 713 F.Supp.2d 367, 375 (S.D.N.Y. 2010); N.Y.U.C.C §2-201(1); Hoffman v. Boone, 708 F.Supp 78, 80 (S.D.N.Y. 1989). “However, where a service component of a contract ‘predominates’ over the incidental sale of personal property, an oral agreement is barred by the Statute of Frauds only if it is incapable of being performed within one year.” Id.; N.Y. Gen. Oblig L. § 5-701. Practically, not having the transaction memorialized in a detailed and signed writing invites litigation.

III. Flaum v. Great Northern Insurance Company.

Lesson: Review the policy for adequate coverage

            While insurance can protect the insured against certain losses, it is imperative to review the applicable policy and ascertain if a specific risk is actually covered by it. As illustrated by the case below, one cannot equate insurance with universal protection against all losses.

            In Flaum v. Great Northern Insurance Company, 28 Misc.3d 1042 (Sup. Ct., Westchester, 2010), Flaum, as an insured, brought an action against an insurer alleging breach of an insurance policy based on the Company’s failure to provide coverage for a painting that Flaum claimed was a forgery. The Court noted that “the language of the Valuable Article’s Coverage clearly and unambiguously state that ‘all risk of physical loss’ is covered under the terms of the policy. Here, however, plaintiffs did not sustain a physical loss. There is no dispute that the painting originally attributed to the famous French painter Pierre-Auguste Renoir still hangs in [plaintiff’s] primary residence in substantially the same condition as when it was purchased.  In addition there is no claim that [this painting] has been lost, damaged or destroyed”. Id. at 1045.  It just happens to be a fake.

            This case clearly demonstrates that an insured should carefully review the terms of an insurance policy obtained to protect his investments, in case something believed authentic turns out to be a fake.

IV. Schoeps v. Andrew Lloyd Webber Art Foundation, Inc. 

Lesson: If a lawsuit is initiated, make sure the proper party brings the case

            Notwithstanding, litigation may be needed due to, inter alia, tortious conduct and/or breach of contract. Before considering taking legal action, it is important to determine who is the proper party to proceed with the claim.

            In Schoeps v. Andrew Lloyd Webber Art Foundation, Inc., 66 A.D.3d 137 (1st Dept. 2009) the Court affirmed an order dismissing the complaint. The court held that a beneficiary of an estate may not act on behalf of the estate, instead any such moving party has to be appointed a representative first.

            While a claimant may have a beneficial interest in the claim, standing may rest with a particular person or require that this person obtains authority to proceed from the Court. Failure to consider this procedural step can lead to delay and even dismissal of valid claims. 

V. Grosz v. Museum of Modern Art. 

Lesson: Remember about the statute of limitations - even when discussing settlement

            It is imperative that if a lawsuit is inevitable, that it is filed timely. If a claim is filed outside of the applicable statute of limitations it may be dismissed with prejudice. A common misconception is that settlement discussions alone toll the statute of limitations. In fact, they do not.

             To protect a valid claim from expiring, one may file a summons and complaint to preserve rights to sue which could also apply additional leverage in settlement negotiations. If the negotiations are fruitful, the litigation can be discontinued upon securing a written and signed settlement agreement.  If they are not, claimant’s rights are preserved with timely filing.

            The mere existence of settlement negotiations is insufficient to equitably toll the statute of limitations. Grosz v. Museum of Modern Art, 403 Fed. Appx 575 (2^nd Cir. 2010).  According to Grosz, as soon as a claim arises it may be prudent to assess what claims are viable and what statute of limitations period applies. Should a lawsuit be required, it should be timely filed to avoid dismissal on that ground.

* * *

            In conclusion, this survey of recent case law confirms that good practices of navigating the art market are far from universally learned, and these lessons warrant attention. Doing so may help art collectors both before and after art law issues arise.

About the Author

Daniel S. Kokhba, Esq. is a Partner at Kantor Davidoff, Wolfe, Mandelker, Twomey & Gallanty, P.C. and focuses his practice on commercial law, employment law and art law.  He may be reached at Kokhba@kantordavidoff.com or 212-682-8383

Disclaimer

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

Guardianship of Zao Wou-ki's Estate in Dispute

Chinese-born, French-naturalized artist Zao Wou-ki died on April 9 2013 in Switzerland. Less than one months later, his family members, his third wife Françoise Marquet and his son from the first marriage Jia Ling Zhao, are already fighting over control of his art and estate. Specifically, they are seeking guardianship of his unsold paintings, estimated worth in excess of 500 million Euros.

As a victorious gladiator whose triumph would be feted with "Die Now!" chant from the spectators, at the time of his death, Zao Wou-ki, 93 and diagnosed with Alzheimer's, was the highest selling living Chinese artist. He passed away three days after setting a record by selling one of his paintings for $4.7 million at Sotheby’s Hong Kong auction on April 6, 2013.

Given that Zao Wou-ki was one of the best known and most prolific contemporary Chinese artists; clearly control of his estate is worth the fight.

Source: Financial Times; ArtInfo; WSJ.

UPDATE: Repatriation of Metropolitan Museum's Cambodian Art

Following a visit to Cambodia six weeks ago by its General Counsel, Sharon Cott, and its Southeast Asian Curator, John Guy, the Metropolitan Museum of Art has decided to return two monumental sculptures to Cambodia.  The life-size sandstone sculptures, known as the Kneeling Attendants, have guarded the doorway to the Met’s Southeast Asian Galleries since they opened in 1994.  This is the latest, but certainly not the last, chapter of an ongoing campaign by the Cambodian government to retrieve looted art.  Indeed, the government has requested that the Met review the provenance of another two dozen objects in its collection, according to The New York Times.

The Cambodian government is also investigating a statue called Bhima at the Norton Simon Museum in Pasadena, California.  According to the Times, that Museum is cooperating with the investigation.  As previously reported here (March 9, 2013), a suit to confiscate a fourth statue, Duryodhana, has been filed by U.S. officials against Sotheby’s, where it was consigned for auction.  That suit is expected to go to trial later this year.

All four statues came from the Koh Ker temple complex 180 miles northwest of  Phnom Penh.  Apparently what convinced Ms. Cott and Mr. Guy were photographs of the statues' broken bases still in situ and witnesses’ accounts that the statues were in place as late as 1970.  That date is key, because that is when UNESCO adopted, and the United States ratified, the Convention of the Means of Protecting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

The Met’s statues were acquired in pieces as a series of gifts beginning in 1987, when London auction house Spink & Son and Khmer art expert and collector, Douglas A. J. Latchford, jointly donated one of the two heads.  The second head was donated by Raymond G. and Milla Louise Handley in 1989.  In 1992, Mr. Latchford donated the two torsos.

With a hint of “white man’s burden,” Mr. Latchford said, with regard to the Met’s statues, “Admittedly, these things were moonlighted out of Cambodia…  But had they not been, they would likely have been shot up for target practice by the Khmer Rouge.”  There is some validity to Mr. Latchford’s position.  However, the illicit trade in antiquities also results in damage and loss.  Regardless, it is clear that repatriation will continue to be a thorny issue.

Source: The New York Times 

    

Liquidating Assets When the Asset is an Andy Warhol

Andy Warhol, Portrait of Dolly Parton, from Christie's May 2012
Post-War and Contemporary Art Morning Session.  The
provenance lists that the Andy Warhol Foundation sold it to a
private collector (now known as Chris Schoen). 

Bank of America has filed a complaint against real estate developers Chris Schoen and Hal Barry in Atlanta after they defaulted on their $4.5 million loan.  They are requiring Schoen and Barry to liquidate assets—these assets include four paintings owned by Schoen appraised by Christie’s at $3.1 million. In addition, the bank is calling foul: at the May 2012 Christie’s Contemporary Art Sale Schoen sold his Portrait of Dolly Parton by Andy Warhol for $626,500 (Sale 2558, Lot 158) and failed to report the income to the bank. Bank of America is seeking Schoen’s four remaining paintings, the $626,500 profit from the Warhol sale, attorney’s fees, interest of $424 per day, and complete repayment. The lawsuit filed in the Northern District of Georgia Atlanta Division on April 22, 2013, Bank of America v. Barry Real Estate Companies, Inc., Bstwenty, LLC, Christian B. Shoen and Harold V. Barry, states:

"Plaintiff desires to repossess and sell the Artwork and is entitled to take possession of the Artwork and any proceeds from the sale of Artwork, possession of which has been wrongfully withheld from Plaintiff by Schoen. Schoen has advised Plaintiff that he will not sell or turnover the remaining Artwork in his possession, custody or control and has failed to turn over the $555,000.00 (net) generated from the May 2012 sale of the Portrait of Dolly Parton.... Schoen's failure and/or refusal to relinquish control and possession of the Artwork and proceeds therefore is in bad faith, constitutes stubborn litigiousness, and has caused Plaintiff unnecessary trouble and expense thereby entitling Plaintiff to recover its expenses of litigation, including reasonable attorney's fees and costs pursuant to O.C.G.A § 13-6-11."

Hal Barry celebrating the opening of his helipad in Atlanta. 

When Schoen and Barry applied for the loan in 2007, they used the paintings as collateral--promising the artwork and its sale proceeds to cover the loan in the event of default.  

The use of artwork as collateral is becoming more common—both banks and auction houses have special departments to appraise artwork and special requirements to define artwork as collateral on loan applications.  The art as collateral business has boomed with the recent economic downturn.  Where individuals seeking a loan would have previously used a house or property as a guarantee, now use artwork.  In some cases, artwork can be the only valuable asset remaining.  

However, the risks and results of art based loans have proven to be disastrous for many borrowers. These include:

• High interests rates that can range from 9% to 25%


• Borrowers can only lend 40% of the artwork’s value


• Borrowers must personally guarantee each art loan, which is not the case in mortgages


• The value of art work changes with the seasons and popular taste very quickly- therefore when borrowers default on loans they are forced to sell their artwork at a time when the market may be poor and end up selling them below market value


• Banking practices in this area are unregulated and highly litigious: Marc Porter of Christie's told The New York Times, "It's a rough-and-tumble corner of the business."

The fable of such a disastrous outcome is Annie Leibovitz highly publicized default.  Leibovitz took out a loan from the Art Capital Group in 2008, using her New York City properties, existing photographs, and future photographs-- including their copyright as a guarantee.  She defaulted and the Art Capital Group sued for breach of contract on July 28, 2009.  Leibovitz was able to settle by selling portions of her real estate and a small amount of photographs-- all when the art and real estate markets were low.  The original loan was for $24 million.  During refinancing Leibovitz continued to pay 44% interest, totally $16 million over the course of 18 months.   

Annie Leibovitz in front of her portrait of Demi Moore. 

Some banks, however, argue that using artwork as collateral opens new doors to clients who would not normally be granted a loan.  For example, banks advertise that by using artwork as collateral museums (with their boards permission) can use loans to bridge budget gaps and make large purchases to expand their collections.  At a time when most museums are struggling financially and not able to sell artworks to cover overhead, loans guaranteed with artwork can be a viable solution.  Many banks believe that they are providing a service to museums in need- the knights in shining armor with a hidden agenda.  According to Gerald Peters, a collector himself, "The game they have to play is rough.  But the service they are providing is real, and there's demand for it." 

 

Art based loans are also becoming increasingly popular as tools for art speculation.  The art saavy are trading art like hedge funds with the hope of quick profit.  Most art advisors discourage these practices because of the high risk.  Constanze Kubern, a London based art advisor, stated: 

“It’s a commonly used fund management tool; if you know a market is going up, and you can get a lending rate that is below that percentage, then you take on leverage [ie: a loan] to make a profit.  Unfortunately, you cannot pin down the value of a piece of art as precisely as that of a daily traded commodity, and therefore [borrowing] can prove quite difficult when it comes to managing an art collection.” 

Chris Shoen

Many banks are aggressive in pursuing repayment of art based loans, and it is not surprising that Barry and Schoen are now on Bank of America's radar.Barry and Schoen hardly have a leg to stand on since they signed the Pledge Agreement using artwork as the security. When loans default, lawsuits follow; when the collateral is artwork, the asset is liquidated like any other property Bank of America, the attorneys of Hall Barry and Chris Schoen, and Christie’s have all refused to comment on the lawsuit.

Sources: “Bank of America Sues Atlanta Developer, Eyes Dolly Parton Portrait Proceeds,” Atlanta Business Chonicle, April 24, 2013; “Companies Default on Loans, Bank of America Goes After its Artwork,” ABC news, April 26, 2013; “Need a loan? Use Your Art,” The Art Newspaper, September, 28, 2012; “Photographer Annie Leibovitz Must Repay $24 Million Loan by Tuesday,” The Huffington Post, September 6, 2009; Christie's Sale Results, Sale 2558, Lot 158; "That Old Master? It's at the Pawn Shop," The New York Times, February 23, 2009; "Art Capital Made at Least $16 Million Off Annie Leibovitz," Reuters, April 6, 2010.

Part II: UNESCO Forced to Consider Street Art as Cultural Heritage

On March 27th, four sections of the East Side Gallery were destroyed
to make way for a high end construction project.  Preservationists are
calling on UNESCO to protect the remaining street art the
longest remaining section of the Berlin Wall.

UNESCO Director-General Irina Bokova is a strong believer that cultural heritage can be a unifying factor following war.  The "cultural heritage effect" has yet to prove itself at recent sites of conflict, particularly in Syria and Mali. 

In Berlin, however, street art on the remaining sections of the Berlin Wall has proved to be a unifying force.  Almost 25 years after the fall of the wall, Germany is still coming to terms with its communist past.  This was demonstrated passionately this March when sections of the East Side Gallery were removed to create access to luxury high-rise apartment. 

The East Side Gallery was created in 1989 by artists from East and West Germany.  Over the years, it has become a site of remembrance and reflection.  Some have even argued that the street art murals are a better memorial to Germany's communist era than Checkpoint Charlie or the Brandenburg Gate.

Dmitri Vrubel, My God, help me to survive this deadly love, 1991.
Street art on the Berlin Wall.

In early March, a developer was granted permission to remove four sections of the wall by the State Monuments Office and the Supreme Heritage Authority.  Soon after, protesters gathered in front of the East Side Gallery to prevent its destruction.   

On March 17, six thousand protesters, joined by "Baywatch" star David Hasselhoff, temporary stopped construction on the site.  However, during the early hours of March 27, four sections were removed under the cover of darkness, guarded by 250 police officers. 

 



Birgit Kinder, Test the Best, 1989. 
Located on the East Side Gallery.

Axel Klausmeier, director of the Berlin Wall Foundation, told the press: "There is a wider consciousness for the wall and its cultural significance. [At the time of reunification] it was impossible to imagine thousands of people standing in front of the wall demonstrating to keep it."

The destruction of these portions of the East Side Gallery has galvanized a movement to preserve the remaining street art.  Preservationists, lead by Leo Schmidt, are calling on UNESCO to protect the site and grant it World Heritage status. 

This is the first time that UNESCO will be asked to consider street art as cultural property.  UNESCO's decision on whether to grant World Heritage status could establish a new precedent.  It has the potential to usher in a new era with a wider understanding of cultural heritage.

Sources: "Germany: Parts of the Berlin Wall Removed," The New York Times, March 27, 2013; "Battle to Keep the Remainder of the Berlin Wall," The Washington Post, March 26, 2013.

Appropriate Standards in Appropriation Art? Cariou v. Prince Decision Garners Relief but Fails to Provide Substantive Guidance

One of the most closely watched copyright cases in the legal and contemporary art worlds was settled last week. On Thursday, April 25, the United States Court of Appeals for the Second Circuit overturned the 2011 District Court decision, holding that contemporary artist Richard Prince's appropriation of 30 photographs from Patrick Cariou's book "Yes Rasta" for his own "Canal Zone" series was protected under the fair use doctrine.

The controversial case arose in 2008, when Cariou sued Prince, the Gagosian Gallery (which exhibited his works), and Rizzoli books (publisher of the exhibition catalogue) for copyright infringement. For his "Canal Zone" series, Prince took photographs from "Yes Rasta," Cariou's photographic book about Rastafarian culture, and added other elements, such as painting gas masks, guitars, oversized hands, and geometrical shapes over the original works. Prince did not seek the photographer's permission, and his show at the Gagosian Gallery generated over $10 million in sales.

In defense of his work, Prince argued that his work falls within the Copyright Act's codified defense to infringement--fair use--which permits some borrowing of an original work for purposes such as commentary, criticism, news reporting, scholarship, or to create works that are "transformative." A finding of fair use is a close, fact-specific inquiry that considers four factors, including the purpose and character of the use, the nature of the copyrighted work, the amount and sustainability of the portion taken, and the effect of the use on the potential market. The proper applicability of the fair use doctrine has been fiercely debated in the legal and art worlds alike, particularly in how to properly determine whether a work is "transformative." It is an especially fuzzy line in appropriation art, which is typically defined by an artist's use or borrowing of another's original work.

Many were surprised by the decision of District Court Judge Deborah A. Batts, which came out in 2011. She stated that in order for fair use to have applied in this case, Prince's work would have had to "in some way comment on, relate to the historical context of, or critically refer back to the original work." Judge Batts gave heavy weight to Prince's statements in relation to his work, concluding that because Prince specifically stated that he did not intend one particular message with "Canal Zone," his works could not be transformative. In a particularly harsh remedy, she also gave Cariou the right to destroy the "Canal Zone" works that had not yet been purchased. Prince had appealed the decision, and the outcome has been anxiously awaited by those in the art world and intellectual property community for months.

The Second Circuit ruled that Judge Batts's interpretation was based on an incorrect understanding of the fair use doctrine. The court stated that "the law does not require that a secondary use comment on the original artist or work, or popular culture," but rather that the proper test to determine the applicability of fair use is whether a reasonable observer would find the work transformative after a side-by-side comparison. The court stated that "what is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work." Significantly, the Court stated that a work could be transformative, without intending specifically to comment on Cariou's work or on culture in general. The Court also criticized the district court's permanent injunction, which permitted Cariou to destroy Prince's works as "improper and against the public interest." The opinion may be read here. Although the decision may be characterized as a victory for Prince, the Court did remand the case to the district court for further analysis of five of Prince's paintings, stating that Prince's use was "similar in key aesthetic ways" in these paintings and that his changes were too minimal.

Many in the art world gave sighs of relief when the Second Circuit's ruling came out. Artists, academics, and lawyers believed that Batt's decision would create a chilling effect for creative works. Joshua Schiller, counsel for Prince, stated that "Judge Batts put too much weight on the artist's own characterization of his work, and the artist's ability to articulate what their message is." This statement is aligned with the opinion articulated by Stanford Law School's "Center of Internet and Society," which studies the law and policy of the Internet and other emerging technologies, and had submitted an amicus brief in support of Prince's position. Julie Ahrens stated that "the decision affirms an important tradition in modern art that relies on the appropriation of existing images to create highly expressive works with new meaning."

However, the opinion has also been criticized for lacking much instructive guidance for the future. Daniel Brooks, lawyer for Cariou, stated that he thought that the "decision doesn't offer much guidance or predictability for the future, either to artists or courts that are going to have to deal with these decisions." Donn Zaretsky, of the Art Law Blog, also called the decision a "missed opportunity."

Though it may not have provided much specific guidance, the opinion did reiterate the principle that an artist need not have intended or even to have been aware of his own intentions when creating work for it to be transformative. This basic principle is significant and instructive, as it conclusively removes the artist's own intentions from the fair use analysis- at least in the Second Circuit. What courts will specifically consider when determining how a "reasonable observer" would evaluate the transformativeness of a potentially infringing work remains to be fleshed out in further decisions. The debate in art and legal circles will continue. This issue, unlike the case, is far from settled.

Sources: The New York Times, Hyperallergic

Ownership of a Mahler Photograph in Dispute

The first one she married was Mahler, 

Whose buddies all knew him as Gustav. 

And each time he saw her he'd holler: 

"Ach, that is the fraulein I moost have!"

Tom Lehrer, "Alma" (1965)

Who: Cliff Fraser, 35
What: found a photograph
Where: in the boiler room of his grandmothers' basement
Where: in Los Angeles
Content: portrait of Gustav Mahler
Additional Details: The photograph is signed as a gift to Arnold Schoenberg.
Biographical Note 1: Gustav Mahler --  one of the leading conductors and composers of the late 19th/20th century, Jewish, born in Austria.
Biographical Note 2: Arnold Schoenberg -- important Austrian composer and painter.

Following this discover, Mr. Fraser contacted the Arnold Schoenberg Center in Vienna. Schoenberg's heirs contacted Fraser and offered to buy the picture, suggesting that the photograph disappeared from their collection, probably as a result of theft. Later, they demanded the return of the photograph and threatened litigation. Probably the offering price for the purchase did not satisfy Mr. Fraser, who reportedly offered to sell it for $350,000.  Ultimately Fraser refused to hand over the photograph arguing that Schoenberg's heirs had no evidence of theft and offering his own theory of how the photograph left their collection, such as a subsequent gift of the photograph to his grandfather. Now both sides are building cases to support their theories of the photograph's chain of custody.

Fraser has been quoted as saying that the heirs are "just trying to throw a bag over my head, to get this thing which doesn't belong to them." And as for the Schoenberg/Mahler music, "I'm not a very big fan of their music... I tried but it just doesn't work for me."

The next movement in this concerto may be litigation, stay tuned.

Source: New York Times.