Art Law Report

Recap of “Rethinking Art Authentication” at the New York City Bar

Posted by Nicholas O'Donnell on December 10, 2015 at 6:34 AM

Last week the Art Law Committee of the New York City Bar Association hosted a terrific two-hour event. Entitled “Rethinking Art Authentication,” the discussion aimed to address a way forward from the problems of fakes, forgeries, and authentication lawsuits that have plagued the art market in recent years. It was a lively and fascinating evening.

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Topics: Karl Waldmann, Ceroni, Jacobs Technion-Cornell Institute, Leonardo da Vinci, Cady Noland, Knoedler, New York Assembly, Catalogue raisonée, authentication, Dean R. Nicyper, New York University, Colette Loll, Blue Room, Dan Flavin, Dada, Visual Artists Rights Act, Rick Johnson, Rethinking Art Authentication, The Work of Art in the Age of Mechanical Reproduct, Jennifer L. Mass, Art Law Committee, Trial Lawyers Association, Beltracchi, Events, La Bella Principessa, Hyperspectral imaging, Gerhard Richter, New York City Bar Association, Cornell Tech, Rijksmuseum, Cowboys Milking, Andy Warhol, Picasso, New York Senate, Walter Benjamin, Elmyr de Hory, Withers Bergman LLP, Amadeo Modigliani, Amy M. Adler

5Pointz Property Owner Sued Again Over Whitewashing of Graffiti—Measure of Damages Bears Watching

Posted by Nicholas O'Donnell on June 16, 2015 at 6:33 AM

Several street artists have sued the property owners of the building in Queens that became known as “5Pointz”—a “Mecca” of graffiti and street art. This is the second such lawsuit, after another group of artists failed to obtain a preliminary injunction in November, 2013, and the owners whitewashed nearly all of the painting on the buildings. The new lawsuit seeks damages related to the whitewashing itself, alleging that it was done hastily and secretly without giving the artists sufficient time either to remove or document their work. It relies on the Visual Artists Rights Act of 1990 (VARA), the lone moral rights provision of the Copyright Act.

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Topics: HBO, Copyright Act, Ishmael, Moral Rights, Richard Miller, Cady Nolan, Rodney Rodriguez, FCEE, Christoph Büchel’s, Graffiti Art, Visual Artists Rights Act, Patch Whiskey, Kai Niederhausen Semor, Kenji Takabayashi, recognized stature, Banksy Does New York, Jimmy C, VARA, Jerry Wolkoff, Bienbenido Guerra, Luis Gomez, MassMoCA, Banksy, TOOFLY, 17 U.S.C. § 106A, Carlo Nieva, Copyright, 5Pointz, PANIC, James Cochran, Sotheby's, Maria Castillo

“Copyrights on the Street” at Copyright Society Annual Meeting June 9, 2015

Posted by Nicholas O'Donnell on May 26, 2015 at 5:27 AM

I am pleased to be participating in a panel discussion in two weeks at the Copyright Society of the U.S.A.’s annual meeting in Newport, Rhode Island. The panel, entitled “Copyrights on the Street: Creating and Preserving Graffiti and Other Art in Public Spaces,” will explore:

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Topics: Copyrights on the Street Creating and Preserving G, Newport, Rhode Island, Graffiti Art, Visual Artists Rights Act, Deirdre A. Fox, Copyright Society of the U.S.A., Peter Caruso, VARA, Kernochan Center for Law Media and the Arts, Phillippa Loengard, Events, 17 U.S.C. § 106A, Columbia Law School, Copyright, Christopher J. Robinson

New Graffiti Copyright Lawsuit Continues Growing Trend

Posted by Nicholas O'Donnell on January 28, 2015 at 7:54 AM

News came last week that another lawsuit has been filed over allegations of misappropriation of graffiti images. In this case, as summarized nicely by Cait Munro on ArtNet (I haven’t seen the complaint yet), graffiti artist Craig Anthony Miller:

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Topics: Craig Anthony Miller, "Elephant Mural", Graffiti Art, Visual Artists Rights Act, VARA, Toll Brothers, Copyright, 5Pointz, Cait Munro, ArtNet

VARA Likely to Apply Retroactively to Victor Henderson “Brooks Avenue Painting Claim”

Posted by Nicholas O'Donnell on May 12, 2014 at 5:31 AM

We reported recently on a new lawsuit in California invoking the Visual Artists Rights Act (VARA) in the context of a mural by Victor Henderson, of the Los Angeles Fine Arts Squad. Henderson alleges that property owner Ralph Ziman had his “Brooks Avenue Painting” water blasted in 2013, thus destroying the integrity of his work and infringing on Henderson’s rights under VARA.

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Topics: Brooks Avenue Painting, Anschlus, Foreign Sovereign Immunities Act, Victor Henderson, Copyright Act § 113(d), Los Angeles Fine Arts Squad, Visual Artists Rights Act, VARA, World War II, Copyright, Austria, intellectual property, Ralph Ziman, ex post facto

Victor Henderson of LA Fine Arts Squad Files VARA Claim Over “Brooks Avenue Painting”

Posted by Nicholas O'Donnell on May 2, 2014 at 11:26 AM

Victor Henderson, creator of the Los Angeles mural “Brooks Avenue Painting,” has filed a lawsuit alleging a violation of his right of integrity under the Visual Artists Rights Act (“VARA”).

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Topics: Brooks Avenue Painting, Section 106A(a)(3), Moral Rights, The Doors, negligence, Victor Henderson, Graffiti Art, Visual Artists Rights Act, California Art Preservation Act, recognized stature, VARA, conversion, Copyright, 5Pointz, Terry Schoonhoven, LA Fine Arts Squad, Ralph Ziman

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

Lauren Clay, the David Smith Estate, David Dodde, and Fair Use: Are We Learning Anything?

Posted by Nicholas O'Donnell on October 18, 2013 at 11:07 AM

A pair of recent disputes over sculpture, fair use and moral rights highlights the ongoing concern that Prince v. Cariou has made things worse, not better. The first concerns the estate of sculptor David Smith, and sculptor Lauren Clay. As Art in America put it, “Clay's works replicate the shapes of Smith's large metal ‘Cubi’ sculptures at tabletop scale in materials such as paper, and with faux wood grain or marble finishes.’ The Smith estate, through its reprsentatives at VAGA, took issue with this as a violation of Smith’s copyright. During the discussion, VAGA apparently proposed an agreement in which Clay would agree either not to sell the works, or only to display them with a disclaimer that the works were not authorized.

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Topics: VAGA, Donn Zaretsky, Yellow Submarine, Art in America, La Grande Vitesse, Prince v. Cariou, the Donald Smith Estate, Visual Artists Rights Act, Sergio Muñoz Sarmiento, VARA, Alexander Calder, Copyright, intellectual property, Fair Use, Lauren Clay, David Dodde

Resale Royalty Legislation Revived

Posted by Nicholas O'Donnell on September 13, 2011 at 8:10 AM

Picking up a torch last carried by the late Sen. Edward Kennedy, lobbying efforts are underway to enact into U.S. federal law a droit de suite right enjoyed in the U.K. and elsewhere, that is, a right for an artist to be compensated upon subsequent sales of his or her work. American law has long resisted the concept of secondary market compensation for artists, and Kennedy’s efforts to write droite de suite into American law failed in the course of the enactment of the Visual Artists Rights Act in 1987. European nations have struggled to quantify the effect of inconsistent droite de suite legislation; some argue that the piecemeal regime has simply pushed sales into countries without it, others note that U.K. art sales have continued to rise.

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Topics: Legislation, Resale Royalties, Visual Artists Rights Act, Trademark, droit de suite, Lobbying, Edward Kennedy, resale, Copyright, intellectual property

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