Art Law Report

New VARA Ruling Muddies Analysis on Moral Rights and Significance of “Site Specific” Art

Posted by Nicholas O'Donnell on November 12, 2015 at 6:37 AM

A recent injunction ruling that prohibited the destruction of the “Bicentennial Freedom Mural” in Corona, California had occasion to consider the rights asserted by the plaintiffs and artists under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A. The order ultimately granted the injunction but on different grounds, holding that the plaintiffs were unlikely to prevail on their VARA claim.

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Topics: work of recognized stature, Mural Conservancy of Los Angeles, 555 U.S. 7, Moral Rights, United States Army Corps of Engineers, Cal. Civ. Code §§ 987 and 989, Inc., Visual Artists Rights Act of 1990, California, Santa Ana River Mainstem Project, Pippa Loengard, 54 U.S.C. § 306108, VARA, Kernochan Center for Law Media and the Arts, Corona, Ronald Kammeyer, Columbia Law School, Phillips v. Pembroke Real Estate, Copyright, Prado Dam, NHPA, Administrative Procedure Act, National Historic Preservation Act, 17 U.S.C. § 106A(a)(3)(A)-(B), 459 F.3d 128, 5 U.S.C. §§ 701-706, Winter v. Natural Res. Def. Council, SARM

Google Books, Fair Use, and Visual Art—Second Circuit Writes Decision That Would Have Helped Two Years Ago

Posted by Nicholas O'Donnell on October 23, 2015 at 11:42 AM

With much anticipation, the Second Circuit issued its opinion last week in the Google Books case (Authors Guild et al. v. Google, Inc.), brought by authors Jim Bouton (of Ball Four fame) and others against Google for the latter’s program of scanning millions of library books, whether or not those books are in the public domain. My overwhelming reaction to the opinion, however, in the realm of visual art, is what a lost opportunity the Prince v. Cariou decision was two years ago, and some optimism that the most recent decision will start to provide useful guidance for practitioners that has been harder to give with confidence since Prince. After two years of the preeminence of the first fair use factor threatening to dwarf everything with a “transformativeness” test that essentially any use could meet, Google Books (even while finding a fair use) restores some balance to that analysis.

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Topics: Richard Prince, Campbell v. Acuff-Rose Music, Hildebrand Gurlitt, 510 U.S. 569, Teenage Mutant Ninja Turtle, Prince v. Cariou, Second Circuit, Canal Zone, Patrick Cariou, Toward a Fair Use Standard, Michelangelo, Suicide Girls, Inc., Google Books, The Legal Guide for Museum Professionals, Pierre Laval, Jim Bouton, Copyright, transformativeness, Fair Use, Nazi-Looted Art: Risks and Best Practices for Muse

Appraisers Association of America Art Law Day at NYU, November 6, 2015

Posted by Nicholas O'Donnell on September 15, 2015 at 6:34 AM

I always look forward to registering for Art Law Day: Current Legal Issues for Appraisers, Attorneys, and Collectors hosted by the NYU School of Professional Studies and the Appraisers Association of America (in connection with the AAA annual meeting). This year’s schedule has been announced, and as usual it is excellent. Hope to see you there.

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Topics: Heather Gray, Studio Legale Jacobacci & Associati, Frankfurt Kurnit Klein & Selz P.C., Howard Spiegler, ARIS Title Insurance Corporation, John Cahill, Diana Wierbicki, Inc., Gary S. Castle, Baker & McKenzie, Art Law Day, Elysium Management LLC, Judith Pearson, Huntington T. Block, Linda Sandell, Gurr Johns, Adria Hillman, Lori Spector Fine Art, Ann-Marie Richard, Amy Goldrich, Marnin Michaels, Events, Massimo Sterpi, Elizabeth von Habsburg, Cahill Partners LLP, Ronald Minkoff, Robert Suiter, Herrick Feinstein LLP, Anchin Block & Anchin LLP, Zürich, Winston Art Group, Withers Bergman LLP, Lori Spector

REMINDER: Art Crime and Cultural Heritage: Fakes, Forgeries, and Looted and Stolen Art at NYU June 4-6

Posted by Nicholas O'Donnell on May 27, 2015 at 5:41 AM

I am looking forward to next week’s Art Crime and Cultural Heritage symposium at NYU next month. I will be on a panel discussing the Gurlitt case moderated by Mel Urbach, along with Chris Marinello and Wesley Fisher. The program is as follows, and promises to be a fascinating event.

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Topics: University of Kansas, Megan Fontanella, Jordan Arnold, Klein & Solomon LLP, International Foundation for Art Research, Jo Backer Laird, Amy Adler, Sandra Cobden, Alfred Flechtheim, Betty Little, NYU School of Law, Shawnee State University, Guggenheim Museum, Davis Wright Tremaine LLP, Amr Al Azm, Christopher Robinson, Marla Diaz, ARIS Title Insurance Corporation, Judd Grossman, John Cahill, Alice Farren-Bradley, Inc., Boston University, Art Recovery Group, David Goldstein, Eleonora Nagy, Schiele, Jane C. H. Jacob, James Martin, Pryor Cashman LLP, Karl Geercken, Judith Pearson, Doreen Bolger, Kevin Ray, Museum of Modern Art, Peter Herdrich, Mel Urbach, ARIS, Chris Marinello, III, Pierre Ciric, Arader Galleries, the U.S. Department of Homeland Security, William L Charron, Christie's Inc., On the Shore of the Seine, Spencer Tomkins, W. Graham Arader, K2 Intelligence, MaryKate Cleary, Laurie Rush, Modern Sculpture Conservation LLC, Ciric Law Firm PLLC; Holocaust Art Restitution Pro, lston & Bird LLP, James Butterwick, Auctionata, Restitution, Colleen St Onge, Jonathan Illari, President’s Cultural Property Advisory Committee, Asian Art Research & Appraisals, Sullivan & Worcester LLP, Events, Simon Hornby, Senior Vice President and General Counsel, Bonnie Magness-Gardiner, Art Dealers Association of America Jane Levine, Jacob Fine Art, Wesley Fisher, Harry Ettlinger, Herrick Feinstein LLP, Baltimore Museum of Art, Portrait of Wally, Cummer Museum of Art & Gardens, Nicholas O'Donnell, National Stolen Art File and Art Crime Team, Conference on Jewish Material Claims Against Germa, Francis O'Connor, IFAR, Sotheby's, Bonhams, The Heritas Group, Ken Perenyi, Patricia J. Graham, Emily Kempin Professor of Law, Whitney Museum of American Art, Meridith Savona, Tim Carpenter, Vienna, Megan Noh, Butterwick Gallery LLC, Paysage Bords de Seine, Museum Security Network, Leopold Museum, Crozier Fine Arts Inc., Art Law Report, Mari-Claudia Jiménez, Sharon Flescher, Michael Danti, Holly Keris

Art Crime and Cultural Heritage Symposium at NYU June 4-6, 2015

Posted by Nicholas O'Donnell on May 1, 2015 at 6:49 AM

I am pleased to be taking part in the upcoming Art Crime and Cultural Heritage symposium at NYU next month. I will be on a panel discussing the Gurlitt case moderated by Mel Urbach, along with Chris Marinello and Wesley Fisher. I’m very much looking forward to learning from my co-panelists and the other participants. Registration is available here.

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Topics: University of Kansas, Megan Fontanella, Jordan Arnold, Klein & Solomon LLP, International Foundation for Art Research, Jo Backer Laird, Amy Adler, Sandra Cobden, Alfred Flechtheim, Betty Little, NYU School of Law, Shawnee State University, Guggenheim Museum, Davis Wright Tremaine LLP, Amr Al Azm, Christopher Robinson, Marla Diaz, ARIS Title Insurance Corporation, Judd Grossman, John Cahill, Alice Farren-Bradley, Inc., Boston University, Art Recovery Group, David Goldstein, Eleonora Nagy, Schiele, Jane C. H. Jacob, James Martin, Pryor Cashman LLP, Karl Geercken, Judith Pearson, Doreen Bolger, Kevin Ray, Museum of Modern Art, Peter Herdrich, Mel Urbach, ARIS, Chris Marinello, III, Pierre Ciric, Arader Galleries, the U.S. Department of Homeland Security, William L Charron, Christie's Inc., Spencer Tomkins, W. Graham Arader, K2 Intelligence, MaryKate Cleary, Laurie Rush, Modern Sculpture Conservation LLC, Ciric Law Firm PLLC; Holocaust Art Restitution Pro, lston & Bird LLP, James Butterwick, Auctionata, Restitution, Colleen St Onge, Jonathan Illari, President’s Cultural Property Advisory Committee, Asian Art Research & Appraisals, Sullivan & Worcester LLP, Events, Simon Hornby, Senior Vice President and General Counsel, Bonnie Magness-Gardiner, Art Dealers Association of America Jane Levine, Jacob Fine Art, Wesley Fisher, Harry Ettlinger, Herrick Feinstein LLP, Baltimore Museum of Art, Portrait of Wally, Cummer Museum of Art & Gardens, Nicholas O'Donnell, National Stolen Art File and Art Crime Team, Conference on Jewish Material Claims Against Germa, Francis O'Connor, IFAR, Sotheby's, Bonhams, The Heritas Group, Ken Perenyi, Patricia J. Graham, Emily Kempin Professor of Law, Whitney Museum of American Art, Meridith Savona, Tim Carpenter, Vienna, Megan Noh, Butterwick Gallery LLC, Museum Security Network, Leopold Museum, Crozier Fine Arts Inc., Art Law Report, Mari-Claudia Jiménez, Sharon Flescher, Michael Danti, Holly Keris

5Pointz Not of "Recognized Stature" Under the Visual Artists Rights Act? Court Takes the Narrow View and Paintings are Whitewashed

Posted by Nicholas O'Donnell on November 24, 2013 at 5:00 AM

Amidst all the coverage over famed graffiti artist Banksy’s recent "residence" in New York and questions about how artistic license would fare against trespassing and graffiti laws (short answer: poorly), another graffiti case in New York this month has explored the reach of the Visual Artists Rights Act of 1990 (VARA). Ultimately, the law did not suffice to prevent the owner of the so-called "graffiti Mecca" from proceeding with its intended use of the property (and obliteration of the graffiti).

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Topics: Carter v. Helmsley-Spear, Copyright Act, Inc., Graffiti Art, Visual Artists Rights Act, recognized stature, VARA, Jerry Wolkoff, Banksy, 17 U.S.C. § 106A, Erin Thompson, Copyright, 5Pointz, Litigation

Art Law Day at NYU Next Friday, November 9, 2012

Posted by Nicholas O'Donnell on October 31, 2012 at 9:23 AM

Although this week's Restitution and Repatriation conference at DePaul was washed out by Hurricane Sandy, another terrific event is on the horizon next week. "Art Law Day" at New York University, hosted by the Appraisers Association of America, will be held on November 9, 2012 at NYU's Kimmel Center. The condensed schedule from the event's website is below. Wishing everyone in New York continued safety, we hope to see you there.

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Topics: John Silberman Associates, Holland Dunn, Yuri Yanchyshyn, Jack Flam, Aurora Advisory Group, Karin Gross, Magdalena Dabrowski, AAA, John Cahill, Donn Zaretzky, Hurricane Sandy, Inc., Ella Newman, McLaughlin & Stern, Art Law Day, LLP, Jane C. H. Jacob, Peter Stern, ARIS, Ralph Lerner, Withers Bergman, Michael Ward Stout, Appraisal, ETN Associates, NYU, Events, Chubb Group of Insurance Companies LLP, Dorit Straus, Nicola Walter, Elizabeth von Habsburg, Jacob Fine Art, Ron Fiamma, Appraisers Association of America, J.P. Morgan Securities, Restitution and Repatriation, IFAR, Kimmel Center, Dedalus Foundation, connoisseurship, Christiane Fischer, Winston Art Group, Gloria Velandia, Sharon Flescher, Judith Bresler

Ruminations on Connoisseurship, Forgery, Knoedler and Litigation in the News

Posted by Nicholas O'Donnell on December 9, 2011 at 5:02 AM

We’ve been following a number of prominent stories for several weeks now and thinking about what they mean in the crossover between art and the law. It’s fair to say that a theme is starting to develop, namely, that after the Beltracchi forgery trial in Cologne, the Warhol Foundation’s decision to close its doors to authentication requests, and the brewing scandal over the authenticity of paintings sold by Knoedler and other galleries, the legal significance of knowing—and even asking—the age-old question from Art History 101—“who made that?”—has come again to the fore.

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Topics: Cologne, Forgery, Knoedler, slander, The Art Newspaper, Riah Pryor, Pierre Lagrange, Inc., Degas, Jackson Pollock, libel, catalogue raisonné, Wolfgang Beltracchi, Collections, Francis Bacon, The Warhol Foundation for the Visual Arts, defamation, Georgina Adam, The Art Law Blog, connoisseurship

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