Art Law Report

A Step Back from the Brink—Agnes Martin Authentication Board Prevails in Court

Posted by Nicholas O'Donnell on June 4, 2018 at 3:13 PM

Please note, a version of this article appears in the June issue of Apollo Magazine, to which I occasionally contribute.  

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Topics: Agnes Martin Catalogue Raisonné, Mayor Gallery Ltd, United Kingdom, Abstract Expressionist, Andy Warhol Foundation, Keith Haring Foundation, Calder Foundation, Day & Night, The Invisible, AMCR, Authentication

Bill Introduced in U.S. House of Representatives Would Impose Money Laundering Reporting Requirements on Art Dealers

Posted by Nicholas O'Donnell on May 24, 2018 at 10:00 AM

Casting aspersions about the art market is a popular pastime.  And no doubt there is much about the commercial art world that invites this criticism, not least a tendency towards secrecy (or discretion, depending whom you ask).  Sometimes these criticisms lean into suggestions of rampant criminality or money laundering, for which there is actually scant support. That is to say, there is a common suggestion that the lack of a single regulatory scheme over the art market (which is not to say it is unregulated, another misconception) is evidence of participation by dealers or collectors in illicit activity. In fact, as we have written before, the far greater risk is of being used by bad actors trying to launder money through art transactions.  For this and other reasons, we were proud to assist in drafting the Responsible Art Market initiative U.S. country guide and the more recent toolkit that was launched in January.

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Topics: Money laundering, AML Program, Know your customer, KYC, Responsible Art Market initiative, H.R. 5886, Luke Messer, OFAC, Office of Foreign Asset Control, Christie's Inc., Illicit Art and Antiquities Trafficking Protection

New Court of Arbitration for Art to Launch in June, Offers Exciting Opportunity for the Art Market

Posted by Nicholas O'Donnell on May 17, 2018 at 11:41 AM

 The recent announcement of the launch of the Court of Arbitration for Art (CAA) is exciting and intriguing news.  There is nothing peculiar to the art market or the art world about the existence of disputes—any businessperson in a wide variety of industries can testify to that.  But what is promising about this initiative is the opportunity it presents to streamline an important segment of art world disputes, and in so doing to create a larger body of legal guidance that will in itself be useful in and outside of formal controversies.  It does not supplant civil litigation in courts, nor does it make any pretense of doing so.  It could, however, become an important complement.  Critical will be enough buy-in from lawyers in particular to become willing to recommend its inclusion in contracts, for example.  I would certainly include myself in that group, depending on the specific circumstances. 

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Topics: Court of Arbitration for Art, CAA, New York, London, Geneva, Authentication in Art, Arbitration, AAA, JAMS, Tom Brady, The Hague, Netherlands Arbitration Institute, NAI, Holocaust Expropriated Art Recovery Act of 2016, HEAR Act, William Charron, Pryor Cashman LLP, Megan Noh, Cahill Cossu & Robinson LLP, Judith Prowda, Sotheby’s Institute of Art, Stropheus, Luke Nikas, Quinn Emanuel Urquart & Sullivan LLP

Event—Deaccessioning: Art, Morals, and the Law

Posted by Nicholas O'Donnell on May 4, 2018 at 5:00 PM

I will be speaking to the Copyright Society of the USA on Thursday May 10, 2018 at 5:30 pm at Northeastern University Law School at 250 Dockser Hall – 65 Forsythe Street in Boston.  The presentation will discuss the legal and ethical implications of recent sales or proposed sales by museums of works of art in their collections, including the Barnes Foundation, the Corcoran, and the Berkshire Museum.  The event is free of charge and open to the public.  RSVP is preferred but not required, see attached flyer for details.  the event is co-sponsored by the New England Chapter of the Copyright Society of the U.S.A. and Northeastern’s Center for Law, Innovation and Creativity.

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Topics: Barnes Foundation, Corcoran Gallery, Berkshire Museum, Northeastern University Law School, Copyright Society of the U.S.A., Deaccessioning

What About Margarethe Mauthner? Van Gogh Once Owned by Elizabeth Taylor Heads to Auction Again with Scant Mention of its Persecuted Former Owner

Posted by Nicholas O'Donnell on March 26, 2018 at 9:19 AM

Since the passage in 2016 of the Holocaust Expropriated Art Recovery (HEAR) Act, many commenters (here included) have grappled with what the implications of the law will be on the scope and frequency of future claims.  Even as litigants are faced with policy arguments about whether individual claims belong in U.S. courts—arguments that the HEAR Act should have put to rest—it is occasionally worthwhile to consider how prior cases would have been affected.  Such analysis can draw into relief why the law was such a significant step forward.  This week, news that a painting by Vincent Van Gogh once owned by Elizabeth Taylor will go to auction again provides one such example.  A beautiful painting in the collection of the biggest movie star in the world makes for a great sales pitch, but missing in the coverage is any mention of Margarethe Mauthner, a German Jew who owned the painting before fleeing the Nazi regime.  The exact circumstances under which she lost possession of the painting are unclear, but those circumstances might have had the chance to be determined had the HEAR Act been passed earlier.  The importance of that opportunity is worth considering as the law is assessed going forward. 

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Topics: Margarethe Mauthner, Christie's, Sotheby's, A Tragic Fate, Nazi-looted art, Elizabeth Taylor, Van Gogh, Vue de l'asile et de la Chapelle de Saint-Rémy, HEAR Act, Holocaust Expropriated Art Recovery Act, Holocaust Victims Redress Act, Paul Cassirer, Alfred Wolf

A Signpost for Artists’ Rights or the Beginning of the End? 5Pointz Damages Award May be A Fork in the Road

Posted by Nicholas O'Donnell on March 19, 2018 at 8:50 AM

Last week Apollo magazine published my comments about the recent 5Pointz decision.  The article can be found here, and the text is reprinted below:

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Topics: 5Pointz, Street Art, Graffiti Art, VARA, Visual Artists Rights Act of 1990, Copyright, Jerry Wolkoff

Event: "Looted Art for Sale" at Brandeis University March 21, 2018

Posted by Nicholas O'Donnell on March 5, 2018 at 10:33 AM

I am honored to be one of the presenters at an upcoming symposium at Brandeis University entitled "Looted Art for Sale."  This interdisciplinary conference will provide an international perspective on the last twenty years of art recovery. Speakers include former Ambassador Stuart Eizenstat, a primary leader in the creation of U. S. restitution policies, Hector Feliciano, Professor Meike Hoffmann, Victoria Reed, Inge Reist, and Lucian Simmons. The filmmaker, John Friedman, will screen excerpts from his forthcoming documentary on Tuesday evening, March 20th (6:30pm), in Edie & Lew Wasserman Cinematheque, “Restitution: Art and Memory.”

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Topics: Brandeis University, Victoria Reed, Inge Reist, Lucian Simmons, Hector Feliciano, Stuart Eizenstat, Nicholas M. O'Donnell, Looted Art for Sale, Brandeis Center for German and European Studies, Rosenberg Institute of Global Finance, Brandeis International Business School

Members of the Berkshire Museum Ask Supreme Judicial Court to Stop Berkshire Museum’s Deaccession Plan

Posted by Nicholas O'Donnell on February 26, 2018 at 5:36 PM

(Boston, MA, February 26, 2018) Sullivan & Worcester LLP clients and Berkshire Museum members James Hatt, Kristin Hatt, and Elizabeth Weinberg filed today a brief with the Supreme Judicial Court of Massachusetts asking the state’s highest court not to permit the sale of 40 works of art by the Berkshire Museum. The Berkshire Museum filed a petition on February 9, 2018 asking the SJC to permit deviation from the historical restrictions that would prevent such sale. Today the museum member filed a brief as amicus curiae, or “friend of the court.”

Partner Nicholas M. O’Donnell, attorney for the members, said, “My clients are optimistic that the SJC will see through the Berkshire Museum’s petition to deviate from its historical restrictions as unnecessary, and harmful. Such a petition must show that the current state of affairs is impossible or impracticable, and that the requested change is ‘as near as possible’ to the original purpose of the institution. This petition fails to meet either criterion.”

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Topics: Berkshire Museum, Deaccessioning, Sullivan & Worcester LLP, Pittsfield, Norman Rockwell, Shuffleton’s Barbershop, Nicholas M. O'Donnell

Members of the Berkshire Museum Pledge to Continue Fight Against Liquidation of the Museum’s Art Collection

Posted by Nicholas O'Donnell on February 13, 2018 at 2:45 PM

(Boston, MA, February 13, 2018) Sullivan & Worcester LLP clients and Berkshire Museum members James Hatt, Kristin Hatt, and Elizabeth Weinberg sharply denounced today the agreement that was announced Friday evening between the Berkshire Museum and Attorney General Maura Healey’s office to permit the sale of every one of 40 works of art that the members—and AG Healey—sued last year to prevent.  Only two weeks after filing a 50-page brief in the Massachusetts Appeals Court that detailed numerous violations of the Trustees’ fiduciary duties and specific restrictions on the 40 works of art, the Attorney General’s office has filed its assent to the Museum’s request to modify its governing charter to permit the immediate sale of Norman Rockwell’s Shuffleton’s Barbershop to an unnamed buyer, and to allow the sale of the 39 remaining works thereafter without any further oversight of the governance of the Museum.

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Topics: Berkshire Museum, Deaccessioning, Maura Healey, Nicholas M. O'Donnell, Sullivan & Worcester LLP

"A Tragic Fate" Lecture at DePaul Center for Art, Museum & Cultural Heritage Law February 26, 2018

Posted by Nicholas O'Donnell on February 8, 2018 at 10:32 AM

I am very pleased to be in Chicago on February 26, 2018 at the Center for Art, Museum & Cultural Heritage Law to discuss my bookA Tragic Fate—Law and Ethics in the Battle Over Nazi-Looted Art.  DePaul's cultural heritage law program is at the pinnacle of art, museum, and cultural property study, and it is a great honor to be invited.  

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Topics: A Tragic Fate, DePaul University of Law, Wayland Public Library

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