Art Law Report

Is Coopting Graffiti Artist's Street Cred a Fair Use?

Posted by Nicholas O'Donnell on December 1, 2016 at 5:17 PM

Estate of Graffiti Artist Sues McDonald’s Over Fast-Food Décor

The estate of Dashiell “Dash” Snow, better known as graffiti artist “Secret Snow”—has sued McDonald’s over allegedly infringing use of Snow’s street art in McDonald’s dining rooms.  The lawsuit in the Central District of California is the latest in a series of cases in which street artists are asserting their rights in copyright without any concession about whether the creation has other legal issues (i.e., trespassing or vandalism).  Based on the survival of other recent similar cases, this latest case could be a headache for the giant restaurant chain, though it may have interesting fair use arguments based on the contrasting nature of the street vs. corporate uses. 

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Topics: Digital Millennium Copyright Act, Rime, Graffiti Art, 17 U.S.C. § 1202, Moschino, Dashiell Snow, Street Cred, McDonald's

Exhibition Interference Shows That Public Institutions Still Struggle with First Amendment

Posted by Nicholas O'Donnell on November 23, 2016 at 12:56 PM

Use of Confederate Flag in California Painting and Klan Imagery in Massachusetts Leads to Removal of Controversial Works

Two recent interventions by public authorities to remove controversial works of art underscore that, like last year’s Leonard Peltier painting dispute, the proper application of the First Amendment remains more elusive than it should.  In California, a state law prohibiting the display of the Confederate flag led to the removal of a specific painting from an exhibition, while north of Boston at Salem State University, a painting depicting figures in Ku Klux Klan robes was shut down entirely.  Together, these examples provide a useful of what state authorities can, and cannot do with regards to messages they find offensive.  The difference is very important.

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Topics: Ku Klux Klan, The Boston Globe, Confederate Flag, First Amendment, Leonard Peltier, Salem State University, Timothy Desmond, Civil War, Garry Harley, Fresno, State of the Union

Changes to Limbach Commission Announced, Real Change Now Seems Out of Reach

Posted by Nicholas O'Donnell on November 15, 2016 at 10:43 AM

Three New Members Are Added but German Museums Can Still Decline to Participate

After nearly a year of hinting at changes the Advisory Commission in Germany that makes recommendations to state museums on claims for allegedly Nazi-looted works in their collections (“Beratende Kommission im Zusammenhang mit der Rückgabe NS-verfolgungsbedingt entzogener Kulturgüter, insbesondere aus jüdischem Besitz,” or “Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property”), the federal government announced last week the addition of three new members.  Yet despite public outcry over the outdated and opaque procedures of the commission (better known as the Limbach Commission, in reference to the late Jutta Limbach, presiding member and former judge of the Constitutional Court), none of the fundamental flaws in the panel have been confronted or addressed.  Instead, the occasion has served as little more than another photo opportunity for federal Minister of Culture Monika Grütters, whose visage dutifully accompanies all the recent announcements.

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Topics: Legislation, Frankfurter Allgemeine Zeitung, Stefan Koldehoff, Beratende Kommission, Gurlitt, NS Raubkunst, Restitution, Bavarian State Paintings Collection, Looted Art, World War II, Süddeutsche Zeitung, Monika Grütters, Limbach Commission, Bayerische Staatsgemäldesammlungen, Raphael Gross, Gary Smith, Marion Eckart-Hofer, Simon Dubnow Institute, American Academy in Berlin, Rudiger Mahlo, Jewish Claims Conference

Important Changes to HEAR Act Preserve New York’s Demand and Refusal Rule (For Now)

Posted by Nicholas O'Donnell on October 26, 2016 at 3:35 PM

The Holocaust Expropriated Art Recovery (HEAR) Act of 2016 has been pending for several monthsnow, and was recently recommended favorably by the Senate Judiciary Committee in September. The bill would create a uniform six-year statute of limitations for Nazi-looted art claims, harmonizing an otherwise patchwork state by state system.  While that consistency was laudable, our concern was that the bill as proposed would overrule New York’s important demand and refusal approach to statutes of limitations, with the effect that many otherwise timely claims in New York might become barred.  The bill’s text has been quietly amended to correct that, and in other interesting ways as well.  With the Presidential election just two weeks away, however, it remains anyone’s guess if the bill will become law before the new Congress is seated in January.

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Topics: Legislation, Nazi-looted art, Restitution, Statute of Limitations, World War II, HEAR Act, demand and refusal

Event: Art Crime Symposium November 1-3, 2016 in New York

Posted by Nicholas O'Donnell on October 25, 2016 at 3:03 PM

The NYU School of Professional Studies and Jane C.H. Jacob of Art Vérité, Alice Farren-Bradley of the Museum Security Network, and Christopher A. Marinello of Art Recovery Group will present this year’s edition of the Art Crime Symposium next week in New York. This conference annually puts together a remarkable array of experts and speakers, and this year is no different.  Three days of panels addressed to he themes of Theft and Fraud; Looting and Destruction; and Fakes and Forgeries will challenge and illuminate the audience.  Registration is available here, and the following is drawn from the program.  Highly recommended!

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Topics: Art Crime Conference, Events

New Authentication Lawsuit Filed Against Agnes Martin Catalogue Raisonné

Posted by Nicholas O'Donnell on October 21, 2016 at 11:45 AM
For several years the topic of litigation against appraisers and authenticators has been a controversial issue, causing a number of artists’ foundations and independent professionals to refrain from giving opinions for fear of litigation, even in which they eventually prevail.  A new lawsuit against the Agnes Martin Authentication Committee underscores the importance of a pending bill in New York to shield such authenticators from liability, and the problems inherent in the status quo.  This lawsuit appears likely headed for failure just like every other similar authentication lawsuit, but that will come as cold comfort to the defendants years hence.
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Topics: authentication, catalogue raisonné, Alexander Calder, Keith Haring Foundation, New York City Bar Association, connoisseurship, Andy Warhol Foundation for the Visual Arts, Mayor Gallery Ltd, Agnes Martin, Peter Doig

"Risks in the Attribution of Works of Art": November 8, 2016 in Geneva

Posted by Nicholas O'Donnell on October 20, 2016 at 11:14 AM

On November 8, 2016, a conference will take place organized jointly by the Art Law Foundation and the Art-Law Centre of the University of Geneva entitled Risks in the attribution of works of art: expert practices and legal considerations.  These organizations have steadly put forth multiple events per year that stand out for their breadth and substance.  Registration and further information are available here for this event, which promises to be another top-level presentation.  The general program (my translation) is below: 

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Topics: authentication, Events, Attribution

Event: DePaul Moot Court Competition in Cultural Property in February

Posted by Nicholas O'Donnell on October 20, 2016 at 11:09 AM

The details are out on the annual National Cultural Heritage Law Moot Court Competition at DePaul College of Law in Chicago.  Information and registration are available here.  DePaul features one of the preeminent legal curricula about cultural property, and reliably puts out terrific programming.  One such event is the annual moot court competition, for which interested volunteers and judges are always welcome.  Previous topics have included the always-contentious scope of the Foreign Sovereign Immunities Act on cultural disputes, theNative American Graves Protection and Repatriation Act and the Takings Clause of the Fifth Amendment; the constitutionality of the Theft of Major Artwork Act, which was passed under the Commerce Clause; the Immunity from Seizure Act and the equitable defense of laches; and the mens rea requirement and extraterritorial application of the Archaeological Resources Protection Act.

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Topics: Events

Restitution Claims Resolved in New York and Cologne, New Case Filed Against Germany

Posted by Nicholas O'Donnell on September 29, 2016 at 11:51 AM

Word came this week of two resolutions of claims to Nazi-looted art in museums in New York and Cologne, and a new Nazi-looted claim against Germany filed in Washington.  Barely a month after the Neue Galerie (of Austrian and German art) in New York announced that it had discovered a “major work” in its collection had a clouded history, the museum announced an agreement concerning the Karl Schmitt-Rotloff painting Nude (1914).  It is not known if the Schmitt-Rotloff is the same work to which the museum referred last month.  Around the same time, the Wallraff-Richartz-Museum in Cologne, Germany, announced that it had agreed to return a drawing by Adolf Menzel that had been sold to Hildebrand Gurlitt as its owners fled Nazi Germany in the 1930s.  Blick über die Dächer von Schandau (View over the rooves of Schandau) (1886) will be retuned to the heirs of Hamburg attorney Albert Martin Wolffson and his daughter Elsa Helene Cohen.  These settlements are examples of constructive dialogue and enlightened treatment of the historical fact.  The new litigation likely means the opposite approach from the German defendants.

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Topics: Cologne, Schwabinger Kunstfund, Breslau, Gurlitt Task Force, Germany, Wallraf-Richartz Museum, Nazi-looted art, 28 U.S.C. 1605(a)(3), Gurlitt, David Toren, Neue Galerie, Ernst Ludwig Kirchner, New York, Karl Schmitt-Rotloff, Alfred and Tekla Hess, Streen Scene in Berlin, Adolf Menzel, Strassenzene

Restitution Legislation: HEAR Act and Foreign Cultural Exchange Jurisdictional Clarification Act Move Forward

Posted by Nicholas O'Donnell on September 18, 2016 at 5:13 PM

 

Two restitution related bills have advanced past the Judiciary Committee of the United States Senate: the Holocaust Expropriated Art Act (S.B. 2763, the HEAR Act), and the Foreign Cultural Exchange Jurisdictional Clarification Act, S.B. 3155.  Their advancement for consideration by the full Senate is interesting since in many ways they are at cross purposes with each other.  The analytical coverage of each has also been somewhat frustrating insofar as much of the reasons expounded by their proponents do not really describe what the bills would do.  The HEAR Act would not restitute any Nazi looted art, rather, it would harmonize as federal law the statute of limitations on such claims.  The Foreign Cultural Exchange Jurisdictional Clarification Act would not “reward” Russia or other foreign museums with art claimed by others, it would eliminate a jurisdictional scenario that has only happened once.  The fact is that both bills are of dubious merit because they are of limited effect, and may cause more harm than good.

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Topics: Legislation, Nazi-looted art, FSIA, Restitution, World War II, IFSA, HEAR Act, Ted Cruz, S.B. 2763, S.B. 3155, Foreign Cultural Exchange, Jurisdictional Clarification Act

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