McDonald’s recently prevailed on personal jurisdiction grounds in a closely-watched case in California about the use of street art as décor for restaurants in the United Kingdom, but the issue has quickly arisen again. As part of what the fast-food giant has clearly decided is a winning branding strategy, the chain’s use of graffiti from New York has now brought the threat of litigation from the so-called Bushwick Collective. Where any such lawsuit gets filed will have a great deal to do with what happens next.
Topics: Joseph Tierney, Netherlands, Digital Millennium Copyright Act, Rime, California, specific jurisdiction, 17 U.S.C. § 1202, general jurisdiction, Moschino, personal jurisdiction, Graffiti, New York, Dashiell Snow, McDonald's, Street Art, Daimler AG v. Bauman, Virus, NDA, Don Rimx, Beau Stanton, Himbad, United Kingdom, Atomik, Bushwick Collective
After a recent discussion about whether the new Fearless Girl sculpture by Kristen Visbal in Lower Manhattan might implicate the copyright of the earlier Charging Bull sculpture that has been there for nearly three decades, the sculptor who created Charging Bull has stepped to the foreground to complain that the recent installation infringes his rights. In addition to copyright arguments, that artist (Arturo di Modica) suggests that he has a moral rights claim under the Visual Artists Rights Act of 1990 (17 U.S.C. § 106A). But since Charging Bull predates VARA it is probably ineligible for any protection. Even if it were eligible, the elements of VARA rights are not implicated by the installation of The Fearless Girl because nothing has actually happened to Charging Bull. Artistic confrontation is not “distortion, mutilation or other modification” under VARA. In short, none of the arguments he advances would bestow on him the kind of right to be asked first that he proposes.
Topics: Copyright Act, Visual Artists Rights Act of 1990, VARA, The Fearless Girl, Charging Bull, Arturo Di Modica, Kristen Visbal, State Street Global Advisors, Christina Cauterucci, Slate, Carter v. Helmsley Spear, Inc., 15 U.S.C. § 1125(c), Derivative Works, Trademark dilution
The decision on Friday to allow our clients’ claims to proceed against German and the Stiftung Preussischer Kulturbesitz for the restitution of the Guelph Treasure (or Welfenschatz) is ground-breaking in important respects, and a welcome part of a consistent progression in the law of sovereign immunity over claims for Nazi-looted art. As we noted in our initial reaction, it is the first decision in which a U.S. court has held that it has jurisdiction over Germany or an agency or instrumentality of it under the Foreign Sovereign Immunities Act (FSIA) for a claim to Nazi-looted or purchased art—though others have certainly tried—in this case finding the so-called expropriation exception applies. Critically, it recognizes that claims about forced sales in the early days of Nazi persecution indeed create jurisdiction. Moreover, the court agreed with our clients that Germany’s various excuses to avoid litigating the substance of a forced sale involving Hermann Goering based on pleas for deference or respect to the flawed Advisory Commission are no reason to dismiss the case.
Topics: Guelph Treasure, Germany, Nazi-looted art, Foreign Sovereign Immunities Act, SPK, Advisory Commission, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, Preemption, expropriation exception”, NS Raubkunst, sovereign immunity, Welfenschatz, HEAR Act
Under Landmark Ruling, Germany Must Now Defend Nazi-Looted Art Claims in U.S. Court
WASHINGTON (March 31, 2017)- The United States District Court for the District of Columbia has ruled that claims over the famed Guelph Treasure can proceed against Germany in a United States court. This is the first time Germany will have to defend itself in the U.S. against allegations of looted Nazi art and artifacts. The claims arise out of the 1935 forced sale by a consortium of Jewish art dealers to Hermann Goering’s minions of the famed collection of medieval artifacts known as the Guelph Treasure. The claims were filed by clients of Sullivan & Worcester LLP against the Federal Republic of Germany and the Prussian Cultural Heritage Foundation (the Stiftung Preussischer Kulturbesitz, or SPK). The court rejected the Defendants’ arguments that they are immune from suit and held that the Plaintiffs’ claims can be considered a taking of property in violation of international law for the purpose of evaluating the court’s jurisdiction over Germany and the SPK.. Jed Leiber, Alan Philipp, and Gerald Stiebel may now proceed to litigate their claims for their property’s rightful return. Leiber, Philipp, and Stiebel are also represented by S&W’s co-counsel in this matter, Markus Stötzel and Mel Urbach, experienced counselors in the return of Nazi-looted art who have been fighting this case for over eight years and who decried Germany continuing to defend the Nazis’ and Herman Goering’s theft from Jews.
Topics: Guelph Treasure, Nazi-looted art, Foreign Sovereign Immunities Act, Mel Urbach, SPK, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, expropriation exception”, NS Raubkunst, J.S. Goldschmidt, Markus Stötzel, Saemy Rosenberg, Adolf Hitler, Federal Republic of Germany, Zacharias Hackenbroch, Nicholas M. O'Donnell, Welfenschatz, I. Rosenbaum, Paul Körner, Wannsee Conference
Topics: Copyright Act, Copyright Fair Use, The Fearless Girl, New York Stock Exchange, Charging Bull, Arturo Di Modica, Mr. Robot, Kristen Visbal, International Women’s Day, State Street Global Advisors
We reviewed in December an important decision that addressed the duties of loyalty that art advisors may, or may not, owe to their clients in dealing in the art market. That question—of to what extent advisors and consultants must subordinate their interests entirely to the clien—is of obvious importance in a marketplace where buyer and seller often do not interact with each other. Whereas December’s news about the sale of Cady Noland’s Log Cabin was a reminder that advisors are not necessarily fiduciaries, this month’s decision about the sale of a Basquiat painting underscores that where a fiduciary relationship exists, the penalties for straying from those obligations can be severe.
For several weeks earlier this year, an odd battle was waged in the halls of the U.S. Capitol over a controversial work of art by a high school student placed there after an art competition in St. Louis. At issue is whether the Architect of the Capitol had the right to direct the permanent removal of the painting, or whether doing so violated the student’s (or his Congressman's) First Amendment Rights. That student, and the Congressman, have now gone to U.S. District Court in Washington, DC to get an answer. As in the past, strong feelings on all sides about police officers in particular have sharpened the debate about how, when, and whether the government can be selective in its displays of expressive visual art. With that said, the ostensibly retroactive application of Capitol rules to disqualify a painting that had previously passed those very same guidelines seems unlikely to pass First Amendment muster.
Topics: U.S. House of Representatives, Richard Serra, First Amendment, Tilted Arc, Ferguson Missouri, St. Louis, William Lacy Clay, Eugene Volokh, Dave Reichert, Duncan Hunter, Capitol, Michael Brown, Tip O'Neill
Two pending cases have invoked the new law
A recent article in the New York Times highlights the change that the recent passage of the Holocaust Expropriated Art Recovery (HEAR) Act of 2016 has had on disputes about the timeliness of claims for allegedly Nazi-looted art. The odd part, however, is that the case cited by the Times is not one in which the HEAR Act has been invoked or argued, though it could be some day. As far as we are aware, there has been briefing on the effect of the HEAR Act in two cases, my clients’ claim against the Stiftung Preussischer Kulturbesitz (SPK) and Germany in U.S. District Court in Washington, DC, and Laurel Zuckerman’s claim as representative of the Leffmann estate in U.S. District Court in Manhattan. Only two months after its passage, the law is already changing the terms of debate.
Topics: Metropolitan Museum of Art, Germany, Seated Woman wiht Bent Left Leg (Torso), Bakalar v. Vavra, Stiftung Preussischer Kulturbesitz, Fritz Grünbaum, Egon Schiele, David Bakalar, HEAR Act, Richard Nagy, Laurel Zuckerman, Alice Leffmann
L'Harmattan has published a new volume entitled Éthique et patrimoine culturel—Regard croisés (Ethics and Cultural Patrimony: Viewpoints), which is a collection of papers presented at a conference in October, 2015 at L'Ecole du Louvre in Paris. I spoke at the conference and submitted the full treatment of my remarks to the book entitled "Public Trust or Private Business? Deaccessioning Law and Ethics in the United States." My co-presenters were eloquent and their expanded research and essays are well worth reading. Copies can be ordered here.
Topics: cultural property, Denis Michel Boëll, Ecole du Louvre, National Consultative Ethics Committee, Deaccession, Schwabinger Kunstfund, Marie Cornu, Musée de la Marine, Council of Voluntary Sales, Tehran, Baptiste Brown, Marie Berducou, Stéphane Duroy, University of Toulouse Capitole, Michel Van Praët, University of Shahid Beheshti, Philippe Durey, Arnaud Beaufort, University of Poitiers, University Western Bretagne, Nathalie Heinich, Milan, Julien Chapuis, Pinacoteca di Brera, French National Commission for UNESCO, Philippe-Henri Dutheil, University Rennes, Vincent Negri, Céline Castets- Fox, Astrid Müller Katzenburg, Sophie Vigneron, Sullivan & Worcester LLP, Events, University of Kent, Museum for Byzantine Sculpture Collections and Art, Noëlle Timbart, Dominique Jarrassé, Claire Barbillon, Gilles Ragot, University of Montreal, State Museums in Berlin, International Society For Law Research of Cultural, Edouard Planche, Emmanuelle Polack, Université Paris Sud, EY Société d’avocats, Janet Blake, Jacques Bittoun, Catherine Chadelat, Jérôme Fromageau, Vincent Gautrais, Geraldine Goffaux Callebaut, Daniel Janicot
I was pleased to attend last week in Geneva “Building an Art Market for the Future—Guidelines for Countering Money Laundering and Terrorist Financing Threats” hosted by the Fondation pour le Droit d’Art (Art Law Foundation) and the Art Law Centre of the University of Geneva. The conference was the official launch of the Responsible Art Market initiative, and offered valuable, market-focused discussion about the risks of money laundering and terrorist financing in the art market. Refreshingly, the day’s panel discussions focused on best practices and goals, rather than the oft-heard lamentations about problems with the art market. The implicit point that came through was a powerful one: as both private sellers and law enforcement speakers explained, art dealers are not engaged in large-scale shadowy financial dealings. But art dealers and buyers are at serious risk of being used by criminals engaged in money laundering, which can have serious consequences. Because willful blindness is no defense, the conference and the initiative provided valuable practical advice.
Topics: Pierre Gabus, Anne Laure Bandle, Art Dealers Association of Switzerland, Art Law Foundation, Geneva, Sandrine Giroud, Luxembourg, Switzerland, Art Law Centre, University of Geneva, AML, Terrorist financing, Sylvia Furrer Hoffmann, Ricardo Sansoletti, Ursula Cassani, Simon Studer, Mathilde Heaton, Fondation pour le Droit d’Art, Jean-Bernard Schmid, Rakhi Talwar, Ralph Wyss, Responsible Art Market initiative, Money laundering, Stiftung Kunsthalle, Bern, Deloitte