Art Law Report

Event—Second All Art and Cultural Heritage Law Conference in Geneva, June 24-25, 2016

Posted by Nicholas O'Donnell on May 20, 2016 at 11:05 AM

The Art Law Centre in Geneva, which has sponsored terrific events in the past, is holding another at the end of next month:the Second All Art and Cultural Heritage Law Conference. Registration is available now (before June 13) for what looks to be an engaging two days. From the program:

The Art-Law Centre and the UNESCO Chair in the International Law of the Protection of Cultural Heritage are proud to invite you to participate in the second “All Art and Cultural Heritage Law” conference, which will be dealing with the two following highly relevant themes: cultural heritage in the crossfire and the relationship between law and ethics in the field of cultural heritage. It will also present some national and regional experiences regarding the implementation of cultural heritage law. Once again Geneva hopes to be for these two days the “capital of the world” of art and cultural heritage law.

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Topics: Geneva, Events, Art Law Centre, University of Geneva

Is Graffiti Ineligible for Copyright Protection Just Because the Act of Tagging is Illegal?

Posted by Nicholas O'Donnell on May 17, 2016 at 3:23 PM

After reports of a settlement proved premature, designer Moschino S.p.A. and its creative director Jeremy Scott have moved for summary judgment on the copyright claims filed last year by street artist Joseph Tierney, better known as “Rime.” The motion raises a number of arguments, but the most significant is the contention that Tierney’s work, as graffiti, is ineligible for copyright protection in the first instance. The view here is that defendants are mistaken about the eligibility question. And even if defendants can convince the court that they are right about the legal question of the availability of copyright for street art or graffiti, Tierney’s factual rebuttal on the question of whether had permission to create the art that was used in Moschino’s clothing designs makes it hard to imagine that they could convince the court that there are no material facts in dispute—the applicable standard for a motion for summary judgment. It will be very interesting too to see how the court grapples with questions about whether characters and symbols can be copyright management information (CMI) under the Digital Millennium Copyright Act (DMCA, 17 U.S.C. § 1202). 

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Topics: copyright management information, DMCA, Rime, Graffiti Art, Copyright, Moschino, CMI

Guelph Treasure Heirs Explain Why Case Belongs in U.S. Court

Posted by Nicholas O'Donnell on May 12, 2016 at 8:24 AM

We filed yesterday the opposition to the motion to dismiss my clients’ claims over the 1935 forced sale of the Guelph Treasure, or Welfenschatz. The motion was filed two months ago by defendants Germany and the Stiftung Preussischer Kulturbesitz. As we noted when Germany first moved to dismiss the complaint last fall, Germany’s arguments were revisionist and alarming in a number of troubling ways, most seriously because they tried to excuse persecution of Jews before an arbitrary date as an internal affair not subject to U.S. court jurisdiction, and because it repudiated Germany’s international commitments under the Washington Principles to address restitution claims on the merits. The abject failure of the Advisory Commission, which Germany tries to portray here as some sort of arbitration (which it is not) is also at the fore.

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Topics: Guelph Treasure, Nazi-looted art, Foreign Sovereign Immunities Act, Advisory Commission, Beratende Kommission, FSIA, NS Raubkunst, Restitution, World War II, Welfenschatz, Limbach Commission

FBI Returns to House Where it Did Not Find Gardner Museum Art Before, Does Not Find Gardner Museum Art There

Posted by Nicholas O'Donnell on May 4, 2016 at 12:54 PM

Refreshingly, March 18 passed this year without the usual breathless maybe-it’s-about-to-turn-up coverage that has often been manufactured each year on the anniversary of the Isabella Stewart Gardner heist of 1990. That theft, which remains on the short list of civic and public crimes against Boston, remains unsolved. After what seemed like a real development last year: the disclosure of the surveillance tape of the night before the theft and a possible dry run by the criminals, news has been scarce. Notwithstanding a few tipsters seemingly intent on paraphrasing Danny Ocean’s “I know a guy” speech in Ocean’s Eleven, the tape release has not managed to warm a cold trail.

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Topics: Isabella Stewart Gardner Museum, Isabella Stewart Gardner Museum Theft

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

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