Source: LA times.
On August 15, 2011, a lawsuit was filed in the Illinois Northern District Court, seeking a declaratory order that the estate of Mr. and Mrs. Korhumel is lawful owner of the work. The suit states that heirs of Richard Semmel, a German Jewish textile mogul, are alleging that Semmel once owned the work. If true, Semmel may have been forced to sell the work in order to flee the Nazis. There are records of Semmel selling a large part of his art collection to a Dutch auction house in 1933. In anticipation of a suit for restitution of the work, the Korhumel estate filed this preemptive suit to quiet title.
This is the first time title to the work has been questioned. However, Art News reports the representative for the heirs, who remain unnamed, as stating that the painting was registered as part of the Semmel collection at the Art Loss Register. According to an article in September in the ArtEconomist, the representative "isn't sure whether his clients have any legal basis to force the painting’s return." However, the representative maintains "his clients are the rightful owners of the Renoir, one of the works textile manufacturer Richard Semmel sacrificed when he fled Germany in 1933."
ArtNews via Arts Journal
The announcement comes about a year after the lawsuit, brought against the Foundation by collector Joe Simon-Whelan, had finally ended. Although the Foundation was successful in its defense, its practices have come under intense criticism. Further, the Foundation spent over $7 million defending itself.
The Foundation also announced that it will continue to work on establishing a complete catalogue raisonné for Warhol. Will this not affect the market for Warhols in the same way as the Authentication Board? According to The Art Newspaper, Joel Wachs, President of the Foundation, said, "the catalogue raisonné serves a non-market purpose: Andy’s legacy and Warhol scholarship. The market seems to want to use the authentication board, but that can't be our concern.”
However, catalogue raisonnés often have the same affect as a declaration by an Authentication Board and may lead to the same kinds of lawsuits as Authentication Boards. "A catalogue raisonné is regarded as a definitive catalogue of the works of a particular artist; inclusion of a painting in a catalogue raisonné serves to authenticate the work, while non-inclusion suggests that the work is not genuine" (Kirby v Wildenstein,784 F.Supp. 1112, 1113 [SD NY 1992]). After the Simon-Whelan case was filed, a similar case was filed against the Calder Foundation for failure to include a work owned by the Plaintiff in the Foundation's catalogue raisonné of Calder works [Thome v The Alexander & Louisa Calder Foundation]. As with the Simon-Whelan case, the suit against the Calder Foundation was dismissed.
Although Foundations have come under fire for monopolistic practices, there have been few remedies available for art collectors whose purchases are deemed inauthentic. Perhaps shutting down the Board will help lessen any criticisms, or perhaps it will just lead to more disgruntled "Warhol" owners on the market.
[The Art Newspaper]
According to the Courthouse News Service, Rundquist's attorney, Scott Christensen with Hughes Hubbard & Reed filed suit in November 2009 following unsuccessful efforts at settlement. Rundquist alleges that her works are protected under the Berne Convention for the Protection of Literary and Artistic Works. A federal judge in Washington DC refused to grant Vapiano's move to dismiss all of claims for lack of personal jurisdiction.
Judge Beryl Howell agreed to dismiss two counts against the German parent company from Rundquist's amended complaint, agreeing that it does not have subject-matter jurisdiction regarding liability under the Copyright Act for infringement occurring in foreign Vapiano restaurants. However, as far as personal jurisdiction, Howell awarded Plaintiff 60 days to gather facts to help prove that the foreign company is doing business in the Washington area. Rundquist claims that Vapiano has 60 restaurants in at least 16 countries, including six restaurants in the United States. She says there are two Vapiano restaurants in the D.C. area.
Plaintiff seeks removal of her photographs from all of Defendant's restaurants and compensation and punitive damages.
Source: Courthouse News Service and Blue MauMau.
Should an artist benefit from future sales that reflect the increased value of their work? In 1977, the state of California decided that the artist should benefit, and the state legislature enacted the California Resale Royalty Act. Under this Act, the seller of a work of art must pay to the artist 5% of the sale price, if the work is sold for more than it was bought. The California Arts Council site provides a good overview of how the Act works.
Although this law was enacted only in California, it affects transactions in other jurisdictions. As ArtInfo point out, "the law applies to both works of art sold in California and those sold outside the state by a California resident."
This past week, a class action lawsuit was filed against Christie's and Sotheby's in New York for alleged violations of the Act. According to the LA Times, the auction houses were charged with failing to comply with the law, by "not withholding this royalty for the artists and by routinely going out of their way 'to conceal the fact of a seller's California residency.'" The plaintiffs involved in the class action suit include Chuck Close, Laddie John Dill, and the estate of Robert Graham. It is still unclear how strong the case is, and what affect the case might have on the art market.
October 25, 2011: The LA Times has an interesting update regarding the class-action suit
The New York Times reported that a forged Robert Motherwell painting was branded with the equivalent of a scarlet letter in a legal settlement involving three art galleries and the Dedalus Foundation, which owns the copyrights to Motherwell’s works. The unseated painting at the center of the dispute was sold to a European gallery, Killala Fine Art, for $650,000 in 2007 by Julian Weissman formerly with Knoedler & Company, who bought it from Glafira Rosales, a dealer on Long Island
As part of the settlement, Rosales and Weissman will reimburse Killala for the price of the painting and Dedalus for its expenses.
Source: The New York Times.
While Toronto is the locale for the country’s art market, Quebec is the only city in Canada to institute a department dedicated to fine art investigation. It was originally developed by Alain Lacoursière, due to his passion for art and detective expertise. He is credited for exploring the connection between art theft and Quebec’s operation of Hell’s Angels, and also for his instrumental role in art recovery due to a database he created called “Art Alert", a means of communicating instantly with experts in all parts of the art world.
Toronto-based writer Joshua Knelman explores the nature of art crime in Montreal and around the globe in his book Hot Art: Chasing Thieves and Detectives through the Secret World of Stolen Art. He suggests that the problem inherently stems from the norms of art market transactions, a world based on handshakes and secrecy and therefore questionable legal ownership and title. This ultimately trickles down to art museums, where, in order to maintain relationships with collectors and donors, museums will often fail to report thefts in their institutions.
Knelman’s observation is a sensible way to explain the appeal of art crime –a high payoff with low risk, especially if the institution keeps the crime hidden from public knowledge. Perhaps this is even better understood when we look at the wide attention received for those thefts that have been publicized. Robert Korzinek, fine art and insurance expert at Hincox explains, “art crime is seen as a sexy crime so widely reported in the papers: an exciting heist makes a great news story.” With great attention given to such high profile crimes and the ease with which thieves can enter and take their desired items due to lack of security, museums have now become an idealized target for thefts, therefore institutions prefer not to advertise stolen artworks from their collections.
No matter what the reason, it is clear that the rise of art crime has become a global phenomenon. Quebec’s response to the problem has resulted in significant recovery, just as Los Angele’s art theft squad has been successful in recovering over $80 million worth of art over the past 15 years. It is the diligence of these art investigation units that will ultimately detract from the allure and sexiness of organized art crime and keep artworks in the hands of their rightful owners.
Sources: The Globe and Mail, The Art Newspaper, and Toronto.com.
The Lawyers’ Committee for Cultural Heritage Preservation Announces the Winners of its Annual Student Writing Competition
The Lawyers' Committee For Cultural Heritage Preservation is a nonprofit organization that fosters engagement with legal issues relating to cultural heritage through initiatives in advocacy and education. Five years ago, the organization began the ‘Student Writing Competition in Cultural Heritage Preservation Law,’ which acknowledges and honors outstanding student scholarship. Submissions have covered a wide range of legal topics pertaining to art, cultural property, historic preservation, indigenous peoples, and intangible heritage.
The LCCHP recently announced the winner of its 2011 competition. Columbia Law School’s Laurie Frey received first place for her paper ‘Bakalar v. Vavra and the Art of Conflicts Analysis in New York: Framing a Choice of Law Approach for Moveable Property.’ Heather Stephens, Catherine Mantilla, Elizabeth Marshall, and David Smith also received honorable mentions. This year’s competition received a record number of entries, with thirty-four submissions from twenty-six law schools.
The museum was hosting a 50-piece exhibition of Baroque painting, on loan from the Pinacoteca di Brera in Milan. The exhibit included Girolamo Romano's 1538 painting, "Christ Carrying the Cross Dragged by a Rogue". The Romano may have been stolen from a Jewish family during World War II, and the United States attorney for the Northern District of Florida, Pamela Marsh, has ordered the Brogan to hold onto it until a dispute over its ownership is settled. According to USA Today, the work had once been owned by the Gentili family, and it is believed that the Vichy government seized the work when the family fled during the war. Now, Gentili's grandchildren are taking legal steps to recover the works that were lost during the Nazi-occupation.
The Brogan has meanwhile used this situation as an opportunity to get publicity: "The Brogan Museum at the Center of International Intrigue" The New York Times suggests that hosting nazi-looted art might be a boon to some smaller museums.
The NYT also suggests that the Brogan could apply for a seizure immunity. "The existence of this escape hatch has served to defuse fears among American museum curators that works they have borrowed could be seized, legal experts say." Rick St. Hilaire analyzes the Brogan's chances of obtaining such immunity on his blog.
Barbara Goldstein, president of the Holocaust Education Resource Council, told USA today: "It's a huge issue legally. How does someone trace an artwork like this, and what is its value? This is a great story."
[The New York Times]
Last week, a piece of an artwork was stopped at US border while making its way to the Frieze Art Fair New York. The relevant piece of art was a hermit crab. According to customs officials, the crab was inhabiting the shell of an endangered species. They seized the crab and sent it to an aquarium in New York.
According to The Art Newspaper, the crab was to be "the 'star' performer" of French artist Pierre Huyghe's live ecosystem installation, Recollection, 2011, which was commissioned for the Frieze Projects. After the incident, a replacement crab was found, from Florida via the Netherlands. The new crab has been given a bronze cast of a famous work by Brancusi to be its home.
According to Adrian Searle at the guardian: The work is "odd and extremely beautiful. The art-encumbered crab clambers over the rocks, oblivious that the hollowed-out head it is wearing is art. Or perhaps it knows perfectly well who Brancusi is." As long as what he's wearing isn't offensive to US Customs.
[The Art Newspaper]
New York, NY (October 12, 2011) – SAFE/Saving Antiquities for Everyone, a New York City-based non-profit, will host a dinner honoring the recipients of the 2011 SAFE Beacon Award Jason Felch and Ralph Frammolino, co-authors of Chasing Aphrodite: The Hunt for Looted Antiquities at the World’s Richest Museum (Houghton Mifflin, 2011) in recognition of their efforts to raise public awareness of the devastating effects of the illicit antiquities trade. Purchase a copy of Chasing Aphrodite here.
Felch and Frammolino will be honored at Savore Ristorante in SoHo on Friday, October 28, 2011 at 6:30pm. Guests will enjoy a three-course meal and will receive a signed copy of the book. Tickets can be purchased for $120 each at http://www.savingantiquities.org/beacon.php.
As investigative reporters at the LA Times, Felch and Frammolino revealed the role the J. Paul Getty Museum and other American museums played in the illicit antiquities trade. Their work was a finalist for the Pulitzer Prize in Investigative Reporting in 2006. Their book Chasing Aphrodite, published in May 2010, builds on that body of work, exposing the roots of the Getty scandal with a fly-on-the-wall account based on frank interviews and thousands of leaked internal documents. Felch and Frammolino continue to promote the preservation of cultural heritage through their blog Chasing Aphrodite. While Felch continues to work as an investigative reporter at the LA Times, Frammolino is now a media consultant in South Asia.
A thrilling account of back-room dealings at a world-renowned museum, Chasing Aphrodite has received accolades for raising awareness about the illicit antiquities trade. Said Andrea Schulz, editor in chief of Houghton Mifflin Harcourt: “Felch and Frammolino, in their compulsively readable account of the Getty scandal, never moralize about the effects of the illegal trading they discovered, but let their meticulously sourced and novelistically detailed story speak for itself. They not only helped change the culture at the Getty but have written a book that captures that turning point when the art world’s attitudes toward cultural heritage changed forever.”
According to Cindy Ho, president and founder of SAFE, “The SAFE Beacon Award is reserved for those who are committed to the preservation and rescue of the world’s cultural heritage. Jason Felch and Ralph Frammolino are completely and selflessly in line with that mission.”
SAFE/Saving Antiquities for Everyone, a non-profit 501(c)(3) organization, creates educational programs and media campaigns to raise public awareness regarding the importance of preserving cultural heritage worldwide. SAFE is a coalition of professionals in communications, media, and advertising working alongside experts in the academic, legal and law enforcement communities. SAFE has no political affiliations.
Photo credits: Luis Sinco and Razibul Hossain
De Keersmaeker is a leading Belgian choreographer. The video draws upon striking choreography from two of her dances (copyrightable works), Rosas Danst Rosas (1983) and Achterland (1994). A good comparison of these works with Beyonce's video can be seen at The Hollywood Reporter.
De Keersmaeker said that she had not been asked permission. The Daily Telegraph quotes her: "I didn't know anything about this. I'm not mad, but this is plagiarism."
What is also unfortunate is that the inspiration was drawn without any credit being given to De Keersmaeker. The co-director of the video, Adria Petty, had told MTV: 'I brought Beyoncé a number or references and we picked some out together. Most were German modern dance references, believe it or not.' She told GQ that she had intended to credit the choreographers, but it was cut from the final video.
So how strong are these "references" and would they qualify as copyright infringement? According to Petty, "In the end very little of Keersmaeker's actual choreography inspired the finished result." [GQ] But the reference to De Keersmaeker is instantly recognizable. Beyonce might not fair too well under a test for copyright infringement, given the originality of De Keersmaeker's choreography and the elements used in the music video, including the similar costumes and set designs. This is a commercial music video and Beyonce is one of the best-selling artists of today, so it would be difficult for the video to qualify as fair use. However, the video uses different music, shows many other choreographic sequences, and uses only a small portion of De Keersmaeker's work. It might not be infringement or might even be transformative use. These appropriations/homages are tricky.
Earlier this year, Beyonce was criticized for another alleged plagiarism when she imitated the performance of Italian pop star Lorella Cuccarini. Perhaps one should be wary before attempting to imitate Beyonce on the dance floor...
According to the Baltimore Sun: "When completed, the effort will put the Walters at the forefront of the emerging technology of online museums and make it one of the few institutions in the world that allows virtual visitors to explore almost every artwork it owns."
What about copyright? The manager of web and social media for the museum, Dylan Kinnett, told the Baltimore Sun that the collection is "basically public domain." "We are not terribly worried about [violations]," Kinnett said. "It is not a deterrent to the release of the images. Our job is to make sure people are seeing the art."
So, what about copyright?! Kinnett seems fairly confident that the works involved in the project were not made by artists that are currently alive or that have active estates. Furthermore, the images are being made available online under a Creative Commons license that prohibits commercial use. Unlike many privately owned museums, including the nearby Baltimore Museum of Art, the Walters belongs to the city of Baltimore. According to the Baltimore Sun, "Its masterpieces are public assets, and so far as possible, they should be freely available to the public."
The project is supported by grants from the National Endowment for the Arts and National Endowment for the Humanities. They are currently about 1/3 of the way through digitizing the collection.
Read more at The Baltimore Sun:
"Walters Art Museum Opens Access to 10,000 Images"
"Walters Pioneers the Virtual Museum"
The Friends' latest challenge, filed in February 2011, argues that the former attorney general of Pennsylvania, Mike Fisher, did not carry out his responsibility to prevent Barnes' will from being violated. New evidence is cited to support the petition: comments made in a 2009 documentary, "The Art of the Steal" (reviewed by this blog upon its release). A second petition, filed by Ralph Feudale, was also considered by the court. Ott remarked that Feudale has an interest in the saga and" perhaps, in promoting the sales of his book on the subject."
Standing was denied for both petitions. "The law of standing in matters involving charities is crystal clear, and forecloses the possibility of the Friends pursuing the instant petition," Ott said. Feudale's petition was even found to be in bad faith. Although the Friends' petition was found to be more credible, Ott found it to be sanctionable as well. The petitioners were ordered to bear some portion of the fees and costs associated with the petition.
Perhaps, then, this was really the last last-ditch effort? According to the LA Times, Bruce Castor is a Montgomery county commissioner who opposes the move: "any last-ditch hopes for stopping the transfer now lie with the Pennsylvania General Assembly, which could hold up millions in state funding that former Gov. Ed Rendell designated for the new museum. Politically, Castor said, that will not happen unless Rendell’s successor, Tom Corbett, urges withholding the money, 'and I don’t see any evidence that the governor wants to do that.'"
Read the article at the LA Times
Read the decision via Culture Grrl
Plaintiff Andrew Orkin's great-grandmother, Margarethe Mauthner, had sold a work by Vincent Van Gogh to Swiss art collector Oskar Reinhart in 1933. Orkin claims that his Jewish great-grandmother sold the pen-and-ink drawing under duress, and at an artificially low price, in order to finance her family's escape from Nazi Germany. He also claims that the painting ended up in the collection of the Museum Oskar Reinhart am Stadtgarten, an agent of the state. Orkin is now suing the Swiss Confederation to recover that work under the Foreign Sovereign Immunities Act [FSIA] and, alternatively, under the Alien Tort Statute [ATS].
The Plaintiff is Canadian and the Defendant is Swiss, so it's not surprising that jurisdiction is been the main point of contention. If there had been a "taking" of the artwork, as per the FSIA, was it not by Oskar Reinhart, a private individual, rather than by the state? If the taking was by a private individual, how was it in violation of international law?
The Court of Appeal's decision, particularly with regard to its interpretation of the FSIA, could have great implications for the art law and cultural property field. More individuals might be given the opportunity to recover works that were sold under similar circumstances during the Nazi era, where such works have ended up in state collections. No decision has been issued yet.
Read more about the history of the case:
Cadwalader International Practice Blog
Courthouse News Service
The Art Loss Register (ALR), London-based world’s largest private database of lost and stolen art, helped to recover the paintings and damages on behalf of M. Bakwin whose home was broken into and burgled in 1978. Bakwin lost about $30 million worth of artwork. Suspicion fell to David Colvin, who left the paintings with Mardirosian, his lawyer on an unrelated gun charge. Colvin was murdered in 1979, but Mardirosian sent the paintings to Switzerland for storage, surely to protect his client. In 1999, for the same reason no doubt, Mardirosian attempted to sell the paintings using a Swiss lawyer and a Panamanian shell company. Unable to sell the works Mardirosian then attempted to collect $15 million from the Bakwin family who turned to ALR instead.
ALR worked with the FBI and Swiss Police to recover stolen paintings, including works by Cezanne, Soutine, Utrillo and Vlaminck. Mardirosian was convicted in 2008, his lawyer argued that he only wished to claim the reward and not extort money from the theft victim. In 2011, he was found responsible for the costs associated with the recovery efforts. According to Julian Radcliffe, the Chairman of the ALR "Anyone including lawyers, who think that they can obtain rewards for the return of stolen art without providing full information on who had them and why, should be prosecuted."
Source: Art Loss Register Newsletter.
The September opinion upheld the lower court's finding that the U.S. federal court lacked jurisdiction over the ship and its cargo recovered by Odyssey from the Atlantic Ocean in 2007. The opinion confirmed that the finding was that of the sovereign immune shipwreck Nuestra Senora de las Mercedes, a Spanish vessel sunk in 1804. Judge Black, writing for the Eleventh Circuit, concluded that the Foreign Sovereign Immunities Act (FSIA) applied in the case because, "The shipwreck of the Mercedes is thus unquestionably the property of Spain." In an apparent contradiction however, the opinion also states, "We do not hold the recovered res is ultimately Spanish property."
Source: Odyssey. The 11th Circ. opinion available here. For more on the case, please read WikiLeaks and Art Law?
This efforts to recover Morozov legacy were not the first for Konowaloff. In the 2009, Konowaloff sued the Yale University for a Van Gogh painting (2010 U.S. Dist. LEXIS 103024), unsuccessfully.
For more, read the Courthouse News Service.
Recognizing that digital technologies have outdated a lot of language and legal provisions in the Canadian Copyright Act, the current government plans to introduce the Copyright Modernization Act before Christmas, according to the CBC.
The Heritage Minister, James Moore, explained that the growing importance of digital technologies to the Canadian economy is one impetus behind the Bill. Canadians should be able to use these new technologies without being penalized. "They now will be able to upload the content they have created, like mashups, to internet sites without facing punishment," confirmed Industry Minister Christian Paradis. According to The Vancouver Sun, the so-called "YouTube provision" allows users to remix media content for non-commercial purposes. Of particular interest to artists, the law would give consumers new rights to use copyrighted materials to create a parody or satire under fair dealing - the Canadian equivalent of fair use.
The Montreal Gazette takes the following stance on the Bill: "For the most part the Copyright Modernization Act strikes a good balance between the rights of consumers to use products they buy and those of copyright-holders who are entitled to due compensation for their creations." Many current practices are still illegal under the current law, including recording TV shows at home and copying CDs to iPods.
In part, the Bill is an answer to the U.S. Digital Millennium Copyright Act. Indeed, U.S. relations have factored in the Bill. For example, The Montreal Gazette notes that the blanket ban on breaking digital locks was included "as a result of heavy pressure from U.S. authorities and in the interest of maintaining cross-border trade and exemption from protectionist measures that would prevent Canadian firms from bidding on U.S. government procurement contracts."
Despite its attempts to balance the interests of consumers, creators, copyright holders, and even international governments, the success of the Bill is hard to predict. This is the third time since 2006 that the Conservative government has attempted to modernize Canada's copyright law.
Next week, the Supreme Court will hear a case about American copyright legislation. Golan v Holder, which was originally filed as Golan v Ashcroft in 2001, deals with copyright restoration rather than copyright extension. It challenges the constitutionality of a 1994 Act that restored copyright protection to certain foreign works which had fallen into the public domain. (Docket No. 10-545)
Unlike the debate about copyright extension in Europe, this suit raises issues of fairness as well as the proper scope of copyright protection. The lead plaintiff, Golan, is a conductor who had become accustomed to using musical works that went back under copyright protection after the Act was passed. As Ted Johnson at Variety puts it: "Rather than being a case about free speech, the MPAA suggests, it is 'solely about a narrowly defined class of foreign works that prematurely fell into the public domain due to rigid copyright formalities.'" However, the plaintiffs argue further that, although the Act was passed in order to comply with a Treaty, the government had no 'legitimate interest' in removing the works from the public domain.
The district court and Court of Appeals for the 10th Circuit agreed that the legislation constitutes a content-neutral regulation on free speech that should be subject to intermediate scrutiny by the court. The Court of Appeals found in favor of the government on appeal, determining that the Government had the authority to enact the measure. As noted by one blogger at the American University Intellectual Property Brief, there has been no circuit split on the issue, and it is somewhat striking that the Supreme Court has granted certiorari. "Perhaps the Court intends to follow up it’s decision in Eldred [Eldred v Ashcroft] by saying that although Congress has the power to extend the term of protection for works not in the public domain, it has no such power to reestablish that protection once gone?"
The case does raise a very significant issue - can the government ever grant copyright protection to works which have entered the public domain?
A number of significant art works are also at issue, including ones by Picasso and MC Escher.
[San Francisco Classical Voice]