Art Law Report

Au Revoir, Droit de Suite—9th Circuit Narrows California Resale Royalty Act to a Single Year’s Sales

Posted by Nicholas O'Donnell on July 9, 2018 at 10:33 AM

The idea of moral rights continues to be a notable difference between European and American intellectual property rights with respect to visual arts. Last week’s decision by the U.S. Court of Appeals for the 9th Circuit in a case brought by artist Chuck Close and others addressing the California Resale Royalty Act (the CRRA) underscores those distinctions. In holding that the CRRA is mostly preempted by federal copyright law and thus can be applied to entitle artists to secondary royalties only for sales of art in a single calendar year—1977—the 9th Circuit affirmed the skepticism with which American law continues to regard anything other than classic copyright. Given the failure of efforts to pass national legislation to provide for resale royalties, this decision is probably the end of the line for the foreseeable future in the U.S. for droit de suite, the term of art used to describe the concept.

There is, for better or worse, clearly no political constituency for resale royalties in the U.S. As I told Law360, and as we’ve opined before about the Visual Artists Rights Act of 1990 (VARA), property rights are in many ways a quintessential American policy. We all reflected on the Declaration of Independence last week, and its proclamation of the primacy of Life, Liberty, and the Pursuit of Happiness—which revised John Locke’s famous statement that governments are instituted to secure “life, liberty, and property.” Copyright is and always will be a limitation on absolute ownership, but Americans guard those limitations jealously. There is little sign that will soon change.

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Topics: CRRA, Sotheby's, Christie's, eBay, Chuck Close, droit de suite, Visual Artists Rights Act of 1990, VARA, Declaration of Independence, Cal. Civ. Code § 986(a), Commerce Clause, U.S. Constitution, Dormant Commerce Clause, Preemption, Copyright Act of 1976, 1909 Copyright Act, Morseburg v. Baylon, Rep. Jerrold Nadler (D-NY), American Royalties Too Act, John Locke, Supremacy Clause, California Resale Royalty Act

Alexander Khochinsky Files Suit Against Poland for Retaliation Related to WW II Property Claims

Posted by Nicholas O'Donnell on June 27, 2018 at 1:26 PM

(WASHINGTON, D.C.-June 27, 2018) Alexander Khochinsky, the son of a Polish Jew who fled her home just steps ahead of the German invasion in 1941, has filed a lawsuit in the U.S. District Court for the District of Columbia against Poland for that country’s efforts to extradite him after he sought restitution of his mother’s property.  Khochinsky, an art dealer, reached out to Poland about a painting, Girl with Dove by Antoine Pesne, that he had inherited from his parents and that looked similar to one that Poland was seeking, and asked to open a dialogue about what had happened to his mother’s home.  In retaliation, Poland charged him with a crime and asked the United States to extradite him for prosecution.  The U.S. District Court in Manhattan dismissed the request for extradition in 2015, but by then Khochinsky had suffered months of detention and the destruction of his business.

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Topics: Alexander Khochinsky, Poland, Nicholas M. O'Donnell, Sullivan & Worcester LLP, Nazi-looted art, Molotov-Ribbentrop Pact, Przemysl, Holocaust, Red Army, Leningrad, extradition, "Girl with Dove", Antoine Pesne

Sullivan & Worcester LLP Assists in Relocation of "Digital DNA" from Palo Alto to Harvard

Posted by Nicholas O'Donnell on June 26, 2018 at 10:47 AM

I am pleased to report on the outcome of a matter we announced in February.  After a disagreement with the City of Palo Alto (California) about her sculpture Digital DNA, Sullivan & Worcester LLP client Adriana Varella has agreed to relocate the sculpture to the campus of Harvard Business School.  The agreement is a positive outcome that ultimately did not require litigation, and a reminder of the importance of artists’ rights under the Visual Artists Rights Act of 1990 (“VARA”).  I was honored to be able to work with this incredible artist to preserve her importance sculpture and begin an exciting new chapter for her art.

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Topics: Adriana Varella, VARA, Digital DNA, City of Palo Alto, Sullivan & Worcester LLP, Visual Artists Rights Act of 1990, Right of attribution, Right of integrity, 5Pointz, Boston Globe, Harvard Business School, Harvard

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

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