As Super Bowl Sunday revealed that Ann Freedman has apparently settled claims against her in the first Knoedler trial over the creation of forged Abstract Expressionist paintings to whose orchestration Glafiria Rosales pleaded guilty, news broke of federal charges against Michigan art dealer Eric Spoutz whom the U.S. Attorney for the Southern District of New York has accused of selling dozens of fake paintings. Most distressing is that Spoutz’s website touts a long list of museums to which he claims that he sold paintings as works by Willem de Kooning, Franz Kline, and others. Those institutions in particular, and any other affected buyer or affected party, should be proactive about their legal rights and options. The government’s complaint does not specify the purchasers or recipients of any work alleged to be fake, making it all the more important for anyone who might be affected to seize the intiative.
Last year we bemoaned a lost opportunity when a preliminary injunction concerning a mural on the Prado Dam in California was decided under what seemed to us to be a misunderstanding of the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A ("VARA"). Although a preliminary injunction was eventually entered on other grounds concerning historic preservation statutes, the court joined a long line of decisions that seemed not to understand or unwilling to apply what VARA actually says. Given the rarity with which VARA claims actually get to court, it was a frustrating lost chance for some badly needed interpretive guidance.
As anticipated, the judge presiding over the “monkey selfie” copyright case has dismissed the complaint for copyright infringement brought by the People for the Ethical Treatment of Animals (PETA), ostensibly on behalf of a crested black macaque that PETA named “Naruto.” This was all but a foregone conclusion after the Hon. William H. Orrick of the U.S. District Court for the Northern District of California announced at a hearing that he did not believe that the Copyright Act confers any standing on animals own copyrights or to sue for copyright infringement.
I will be speaking next week at Brooklyn Law School at an event about Gerhard Richter organized by the Center for Art Law and the Brooklyn Law School Art Law Association. Entitled “You’ve Been Served: Gerhard Richter Painting (2011), the event on February 3, 2016 at 6:30 will begin with a screening of the documentary Gerhard Richter Painting (2011). After the movie, I will discuss Richter’s prominence in the recent controversy over Germany’s proposed amendment to its cultural heritage protection laws, of which I have been critical and in response to which Richter threatened to remove his painting from his home country.
The chair of the Schwabinger Kunstfund (Gurlitt) Task Force (Ingeborg Berggreen-Merkel) presented yesterday a report on behalf of the Task Force to German Minister of Culture Monika Grütters. The larger context of the government’s failure to support the expert panel in the stranger-than-fiction story of Cornelius Gurlitt, however, and the complete lack of a commitment from the national government about what will happen now makes this an occasion that is hardly worth the self-congratulation that accompanied the theatrical presentation. The fact that Grütters would portray the last two years as a “political symbol of transparency” is frankly hard to understand, particularly when the future of the expert panel is completely up in the air. Illusory suggestions that the Deutsches Zentrum Kulturgutverluste will support what’s left of it in some unspecified fashion are hard to place stock in, and it’s anyone’s guess if the members would even want to remain involved.
The Geneva-based Foundation for Art Law (Fondation pour le Droit de l’Art/FDA) is organizing next month the latest in its series of events under the rubric “Art Finance & Law.” The conference is entitled “Art Finance & Law : Risks, Rules, and Opportunities in Investments in Art” (Art Finance & Law : Risques, règles et opportunités dans les investissements en art). It will take place in Paris on February 12, 2016 at AXA Insurance, Hôtel de Vaupalière, 25 Avenue Matignon, from 14:00-18:00, in collaboration with l’Association d’Avocats Conseils d’Enterprises (ACE, or the Assocation of Business Counsel Attorneys).
The U.S. Supreme Court has declined to hear an appeal of last year’s Ninth Circuit decision striking down part of the California Resale Royalty Act. The law provided royalties to artists on sales after the work leaves the artists’ ownership, on the grounds that artists often fail to enjoy the benefit of an increase in value in their works. Such royalties are more common in Europe, but they are controversial there, too. Opponents argue that it is a deterrent to art trade, and in any event while there is a patchwork of laws, encourages sellers to forum shop to avoid the royalties.
It appears that the much-maligned “monkey selfie” case is destined for a quick exit. The U.S. District Court for the Northern District of California posted a brief order expressing the sentiment of the presiding judge as expressed at a hearing on a defendant’s motion to dismiss. Specifically, the Hon. William H. Orrick made a tentative ruling that the photograph of a crested black macaque cannot be copyrighted on behalf of the animal itself.
Topics: Copyright Act, People for the Ethical Treatment of Animals, monkey selfie, Congress, PETA, David Slater, Copyright, Blurb Inc., Naruto, Hon. William H. Orrick, authorship, Cetacean Community v Bush, Ars Technica
A new year, a new Richard Prince appropriation and fair use dispute. Readers will recall both the controversial 2013 Second Circuit decision on Prince’s dispute with Patrick Cariou over the latter’s Yes, Rasta photographs that Prince altered, defaced, and otherwise rearranged for his Canal Zone series. Last year Prince raised the profile of this provocative exploration of the bounds of copyright with the high profile “Instagram” show in which he enlarged Instagram posts and sold them for north of $90,000 each. Prince has now been sued for copyright infringement by photographer Donald Graham, whose image was used in one of those works. Will this be more of the same, or will Prince suffer a reversal of fortune? Even adopting a liberal interpretation of the 2013 opinion, it looks from here like he may have a problem, but the final word will almost certainly not come for quite some time.
On the heels of the most recent restitution recommendation, there is more Gurlitt news. In October we discussed news that a Munich court had requested an expert opinion from a psychologist about whether Cornelius Gurlitt was competent to make the 2014 will that named the Kunstmuseum Bern as his sole heir—in particular to the roughly 1,400 works of art in his possession in Munich and Salzburg under suspicion of Nazi looting connections—to the exclusion of his relatives. Procedurally, the court is considering the appeal by Gurlitt's relatives of the denial by a lower court of their will contest.