Art Law Report

Potemkin Village Deferred—Planned Exhibition of Gurlitt Trove is Postponed

Posted by Nicholas O'Donnell on April 21, 2016 at 1:07 PM

Germany has apparently decided to postpone its ill-conceived plans to exhibit the hundreds of works of art that it still holds from the trove seized from the late Cornelius Gurlitt. This decision was announced as a date was set to hear the latest stage of the challenge brought by Gurlitt’s cousin Uta Werner to the will that Gurlitt wrote in the last weeks of his life, leaving the entire collection to the Kunstmuseum Bern. As the Gurlitt fiasco trudges through its fourth year, this move is emblematic of the too little too late approach that has characterized the entire affair.

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Topics: Schwabinger Kunstfund, Nazi-looted art, Gurlitt, Restitution, World War II, Task Force, Kunstmuseum Bern, Monika Grütters, Raubkunst

Events—Authentication in Art Congress May 11-13, 2016 in The Hague

Posted by Nicholas O'Donnell on April 19, 2016 at 3:50 PM

I have not been able to manage it in years prior, but a bi-annual event is coming up soon that is well worth the visit for anyone in the vicinity. The Authentication in Art (AiA) foundation is an independent non-profit that facilitates and controls the AiA Congress. This year’s Congress, the first since 2014, will take place next month in The Hague.  Registration is available on the group’s site here.

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Topics: authentication, Events

California Resale Royalty Act Claims Dismissed as Preempted by Copyright Law, Despite 1980 Ninth Circuit Holding to the Contrary

Posted by Nicholas O'Donnell on April 13, 2016 at 11:21 AM

Just three months after the Supreme Court denied certiorari review of last year’s Ninth Circuit decision finding California’s Resale Royalty Act unconstitutional under the Dormant Commerce Clause in part—but also valid in part—the U.S. District Court in Los Angeles has ruled the entire law invalid as preempted by copyright law. Critically, the opinion relies on last year’s Ninth Circuit ruling on the Commerce Clause issue to overrule a 1980 Ninth Circuit case that expressly rejected the idea that the law was preempted. This core holding of yesterday’s opinion is hard to square with Ninth Circuit precedent, but that will be tested on appeal, for sure. As before, expect proponents of Congressional efforts to enact national legislation to use this decision as support for the idea that a federal solution is necessary, but those efforts have born little fruit to date.

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Topics: Legislation, Preemption, California Resale Royalty Act, Copyright

HEAR Act Introduced by Sen. Ted Cruz to Create Federal Standard for Holocaust Art Claims

Posted by Nicholas O'Donnell on April 9, 2016 at 5:54 AM

Among the many challenges that litigants over Nazi-looted art face in the United States is a lack of uniformity.  Statutes of limitations vary from jurisdiction to jurisdiction, and interpretations of jurisdictional laws like the Foreign Sovereign Immunities Act differ from one Court of Appeals to another.  This is particularly challenging in the context of the Washington Conference on Nazi Looted Art of 1998 because private disputes are where the issue has meaning in the United States.  There is no national commission to address potentially looted art in public possession like those in Austria, Germany, or the Netherlands (however well or poorly some of those commissions perform) because there is very little art in national ownership about which the federal government has any power to decide.  Thus, in assessing U.S. compliance with the Washington Principles, it is often left to private litigants to argue about what the Principles mean in individual disputes.  Happily, appellate courts have begun to reject consistently the denialist defenses of foreign countries that wish to keep stolen art just because they say so, holding that the Washington Principles support the ability of heirs to pursue claims.  Yet the uneven landscape is still daunting.

A new bill introduced this week would address that, though its chances of passage into law in a contentious election season are hard to be optimistic about. 

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Topics: Legislation, Nazi-looted art, Restitution, World War II, Charles Schumer, John Cornyn, Holocaust Expropriated Art Recovery Act, Richard Blumenthal, HEAR Act, Ted Cruz

Don’t Shoot the Messenger—Student Art Removed, First Amendment Notwithstanding

Posted by Nicholas O'Donnell on March 31, 2016 at 7:05 PM

Last fall we had occasion to address the extent to which public displays of art and attempts at controlling the content of them can run afoul of the First Amendment.  In that case, public outrage at artwork submitted by controversial Native American activist Leonard Peltier, who was convicted of murdering in 1975 two FBI agents, led to the removal of Peltier’s paintings by the public agency that had organized the exhibition. 

A new controversy in Colorado has underscored similar First Amendment concerns.  On March 15, an exhibition of high school student art opened at the Wellington Webb Municipal Building in Denver.  One tenth grader submitted a painting that has set off a firestorm.  The background of the painting shows an American flag, which is peeling away at the center to reveal a Confederate battle flag. 

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Topics: First Amendment

Event—The Perspective of the Art Market in Italy

Posted by Nicholas O'Donnell on March 30, 2016 at 10:35 AM

Event—The Perspective of the Art Market in Italy

A fascinating event will be held in Milan on April 9, 2016 on the current perspective of the art market in contemporary Italy.  I cannot make it, but it promises to be a worthwhile event for anyone able to attend.  Market-focused discussions like this are an essential component of a sophisticated understandingof the current situation. 

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Topics: Events

Herzog Heirs’ Claims Against Hungary Survive Dismissal Under FSIA

Posted by Nicholas O'Donnell on March 24, 2016 at 12:22 PM

Expropriation Exception Saves Case, But District Court Holds Commercial Activity Exception Does Not Apply, Claims to Two of the Paintings at Issue are Dismissed as Well

The ongoing litigation between the heirs of Baron Mor Lipot Herzog and several state owned Hungarian museums has produced a new decision interpreting the scope of the Foreign Sovereign Immunities Act (FSIA), a frequent tool used to seek jurisdiction over Nazi-looted art claims brought in U.S. federal court. Relying on Supreme Court and D.C. Circuit cases in the last few months, the U.S. District Court held that claims for all but two of the paintings at issue can proceed under the FSIA’s “expropriation exception” codified in 28 U.S.C. § 1605(a)(3), but that the FSIA’s “commercial activity exception”—which the D.C. Circuit had held applicable in 2013 to the same case—could not be invoked based on the facts in the record developed in discovery. De Csepel v. Republic of Hungary, 2016 U.S. Dist. LEXIS 32111 (March 14, 2016).

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Topics: David de Csepel, commercial activity exception, Hungary, Foreign Sovereign Immunities Act, Budapest University of Technology and Economics, Hungarian National Gallery, Budapest Museum of Fine Arts, expropriation exception”, Restitution, World War II

Event—“Intersections in Cultural Heritage Law” at Georgetown University Law Center March 29-30, 2016

Posted by Nicholas O'Donnell on March 16, 2016 at 9:53 AM

 I am pleased to be speaking at a conference in two weeks at Georgetown University Law Center entitled Intersections in Cultural Heritage Law. The two-day conference will address developments in international human rights and cultural heritage law, intersections of criminal and civil law concerning cultural property, extraterritorial protection of cultural property, and the international movement and restitution of cultural artifacts. In addition, world heritage and the world court will be discussed.

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Topics: Events, Georgetown University Law Center,, Intersections in Cultural Heritage Law

“Mattress Performance” Title IX Lawsuit Against Columbia Is Dismissed

Posted by Nicholas O'Donnell on March 14, 2016 at 10:20 AM

Last May, a former Columbia University student sued the university over the circumstances around Emma Sulkowicz’s widely publicized “Mattress Project,” in which Sulkowicz vowed to carry a mattress around campus so long as the plaintiff, a man named Paul Nungesser whom Sulkowicz had accused of sexual assault, remained on campus. Nungesser’s lawsuit was dismissed on Friday. In addition to the interesting tactical aspects of the case—most prominently Nungesser’s decision to sue Columbia, but not Sulkowicz, who if Nungesser is to be believed has been defaming him—the dismissal is an important result in the growing campus battles over efforts to try to enforce prohibitions against expression or restrict the ability to give offense. In that sense the dismissal is a welcome result.

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Topics: Columbia University, Title IX, Paul Nungesser, First Amendment, The Mattress Performance, Emma Sulkowicz, Establishment Clause

Germany Relents on Nazi-Looted Art Advisory Commission Jewish Membership

Posted by Nicholas O'Donnell on March 11, 2016 at 5:35 PM

Barely a week ago German Minister of Culture Monika Grütters was dismissively rejecting any changes to the Advisory Commission that issues recommendations on claims of Nazi-looted art in German museums. Today, in a classic Friday afternoon news dump, Germany caved to a drumbeat of pressure to include Jewish members of the Commission, pressure that began right here and continued with the support of colleagues and friends around the world. The lesson? No voice is too small to make a difference.

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Topics: Germany, Nazi-looted art, Restitution, World War II, Monika Grütters, Raubkunst, Limbach Commission

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