Art Law Report

Irony is Dead: PETA Sues for Copyright Infringement on Behalf of the Animal in the “Monkey Selfie”

Posted by Nicholas O'Donnell on September 22, 2015 at 11:34 AM

In a year that began with the vagaries of Left Shark, we have our most bizarre art law story of 2015—so far. Last year, the United States Copyright Office released a public draft of the Third Edition of the Compendium of U.S. Copyright Office Practices. Among the new items that leapt out at practitioners was the section of examples of non-copyrightable works, which included “A photograph taken by a monkey.” The Copyright Office was inspired to include this example because of a 2011 photograph taken by British nature photographer David Slater. A crested black macaque picked up Slater’s camera and pressed the shutter button, and the result became known as the “monkey selfie.” While as I said at the time, I thought the point was debatable to the extent that Slater could intentionally have left the camera within reach of the animal the same way that leaving something exposed to nature could still result in a copyrightable work, the question was obviously (I thought) limited to whether or not Slater could restrict reproduction of the work as the author.

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Topics: Left Shark, People for the Ethical Treatment of Animals, Blurb, Compendium of U.S. Copyright Office Practices, Wildlife Personalities., PETA, David Slater, Copyright, United States Copyright Office, Litigation

No Extradition to Poland for Dealer Accused of Trying to Sell Nazi-Looted Art

Posted by Nicholas O'Donnell on August 5, 2015 at 12:06 PM

A Polish man arrested in February after being accused of trying to sell in Moscow a painting looted by the German army from the National Museum of Poznan during World War II will not be extradited to Poland. The U.S. District Court in New York (Rakoff, J.) concluded that Alexander Khochinsky did not acquire "Girl with Dove" by Antoine Pesne—stolen by the German army—with the knowledge that it was stolen property, and thus, could not be extradited. While there could be a second attempt to extradite him for his conduct after he learned the Polish government considered the painting to be stolen (when he had proposed to exchange it for restitution for his mother’s home), it seems unlikely. The whereabouts of the painting are unknown.

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Topics: Republic of Poland, Alexander Khochinsky, Third Reich, Polish Ministry of Culture and National Heritage, extradition, Book of Acquisitions of the Greater Poland Museum, Moscow, Restitution, "Girl with Dove", World War II, Antoine Pesne, Kaiser Friedrich-Museum, National Museum of Poznan, Litigation, Diplomatic Note No. 35-15-2013, Rakoff

“The Mattress Performance” Spawns Lawsuit That Raises Some Eyebrows About Pleading Style

Posted by Nicholas O'Donnell on May 4, 2015 at 7:35 AM

Columbia University has been at the center of the growing conversation about campus life and sexual assault in the past year, and now is the target of a new lawsuit by a student accused of misconduct. The case spotlights the collision between free expression and disparagement and the often uneasy balance between them. It also raises some questions about the level of intimate detail included in the documents in a case that is not actually about that conduct, but rather about an educational atmosphere. Nothing in the following article should be read as an adoption of any particular version of events.

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Topics: sexual assault, Jon Kessler, Columbia University, Mattress Performance/Carry That Weight, Performance Art, Title IX, Paul Nungesser, motion to strike, Federal Rules of Civil Procedure, Litigation, university disciplinary board, First Amendment, U.S. Department of Education Office of Civil Right, The Mattress Performance, Emma Sulkowicz

Dismissal of Claims is Affirmed in Admissions Policy Lawsuit Against The Metropolitan Museum of Art

Posted by Nicholas O'Donnell on February 9, 2015 at 6:40 AM

The Appellate Division, First Department, has affirmed the 2013 dismissal of claims in a lawsuit challenging the admissions policy of the Metropolitan Museum in New York.

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Topics: Litigation, Museums

First Ripples in Greece from Parthenon Marble Loan to Russia

Posted by Nicholas O'Donnell on January 8, 2015 at 6:10 AM

Last month it was revealed that the British Museum had loaned a sculpture from the Parthenon, a/k/a Elgin, Marbles to the State Hermitage Museum in St. Petersburg. Reaction ranged from puzzlement to fury. Lee Rosenbaum pondered whether the loan was in fact a trial balloon to prepare for litigation, specifically, to rebut Greece’s claim that the sculptures are a single unified work that should be returned with an argument that the collection of individual objects is more complicated. My reaction really boiled down to the “law” of unintended consequences: once the UK put any of the objects outside its territorial control—let alone in Russia, which has shown little interest in the niceties of international loans and restitution—the British Museum may find itself in a Portrait of Wally situation. 

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Topics: cultural property, Defining Beauty: the Body in ancient Greek Art, Museum of Cycladic Art in Athens, The Art Newspaper, Lee Rosenbaum, Elgin Marbles, Parthenon Marbles, Restitution, British Museum, Events, State Hermitage Museum, Portrait of Wally, The State Hermitage Museum in St. Petersburg, Litigation

Graffiti Litigation Update: Settlements and Procedural Wrangling

Posted by Nicholas O'Donnell on December 3, 2014 at 5:50 AM

Back in October, we surveyed some developments in lawsuits over public art and protection available under copyright law in graffiti art. There has been some movement, and other developments, in these cases.

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Topics: trademarks, Ahol Sniffs Glue, Zero Theorem, Digital Milennium Copyright Act, David Anasagasti, Zappos.com Inc., Monty Python, Sara Bareilles, 15 U.S.C. § 1125(a), London, Terry Giliam, the Lanham Act, DMCA, Jason 'Revok' Williams, 17 U.S.C. §1202 et seq., Public Art, Graffiti Art, Romania, Vogue, Nordstrom Inc., Chicago, Trademark, Amazon.com Inc., unfair competition, Robert Cavalli, Victor 'Reyes' Chapa, Jeffrey 'Steel' Rubin, Copyright, Buenos Aires, Litigation, Ocean Grown, Wal-Mart, New York Magazine, Graffiti, California Business and Professions Code § 17200, Staff USA Inc.

Sullivan & Worcester LLP Obtains Complete Dismissal of $204 Million Claim Against Artmentum GmbH

Posted by Nicholas O'Donnell on November 7, 2014 at 9:14 AM

In between enjoying another excellent Art Law Day today at NYU, I am pleased to report that Sullivan & Worcester LLP’s Art and Museum Group scored a significant win this week. Our client Artmentum GmbH was sued in New York for $204 million in connection with a potential art collection sale. The plaintiff Art Assure Ltd., LLC and its principal Asher Edelman accused my clients of fraud and breach of contract, which they denied categorically. The matter was entitled ArtAssure Ltd., LLC v. Artmentum GmbH et al., No. 1:14-cv-3756 (LGS).

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Topics: No. 1:14-cv-3756 (LGS), Art Assure Ltd. LLC, Collections, Asher Edelman, Artmentum GmbH, Sullivan & Worcester LLP, Art and Museum Law Group, Litigation, ArtAssure Ltd. LLC v. Artmentum GmbH et al.

Detroit Emergency Manager Kevyn Orr Testifies About Impact of Selling Detroit Institute Art Collection

Posted by Nicholas O'Donnell on October 3, 2014 at 6:43 AM

Throughout the Detroit bankruptcy and the attendant speculation about what role, if any, the collection at the Detroit Institute of Arts that is owned by the city should play, a parallel parlor game has been to try to guess what Emergency Manager Kevyn Orr’s endgame and motivation really was. He has dropped hints about the importance of the collection in helping the city emerge from bankruptcy, but his plan of adjustment did not include any sales or loans with the collection as art. Rather, it included what has come to be called the “Grand Bargain,” under which several foundations will pledge hundreds of millions of dollars (as will the State of Michigan) to keep the art safe from liquidation.

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Topics: Financial Guaranty Insurance Corporation, Chapter 9, Syncora Capital, FGIC, Judge Steven Rhodes, Detroit, Detroit Institute of Arts, Bankruptcy, Nathan Bomey, Kevyn Orr, Litigation, Detroit Free Press, Museums, Detroit Bankruptcy, grand bargain

Books of Note: "The Art Collecting Legal Handbook" Reviewed

Posted by Nicholas O'Donnell on September 18, 2014 at 12:14 PM

In the course of our work here, I like to call out books and articles that I feel are worthy of praise, usually the in the course of a particular post or issue. After a too-long stay on the corner of my desk awaiting time to read it, I finally finished a book published last year that should be an essential for any collector, or lawyer dealing with clients across borders. Entitled The Art Collecting Legal Handbook (Thomson Reuters), the book is edited by Bruno Boesch and Massimo Sterpi, both notable European practitioners in art and cultural affairs law, at Froriep in London and Studio Legale Jacobacci & Associati in Rome, respectively.

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Topics: Legislation, The Art Collecting Legal Handbook, the Middle East, looted property, Forgery, Auctions, VAT, Studio Legale Jacobacci & Associati, authenticity, London, Sam Keller, Julien Anfruns, droite de suite, Froriep, Moral Rights, Europe, North America, Holocaust claims, California, Fondation Beyeler, Howard Kennedy FSI, Thomson Reuters, Asia, Rome, Restitution, International Council of Museums, Massimo Sterpi, United States, World War II, Sabina von Arx, 1970 UNESCO Convention, Morgan Stanley, Art Fairs, Publications, Litigation, due diligence, Immunity from Seizure Act, Museums, Bruno Boesch, 1995 UNIDROIT Convention on Stolen or Illegally Ex, Daniel McClean, New York

Baltimore Museum of Art Wins Title to “Flea Market Renoir” Painting

Posted by Nicholas O'Donnell on January 10, 2014 at 7:18 AM

The Baltimore Sun reports that U.S. District Judge Judge Leonie Brinkema allowed the Baltimore Museum of Art’s motion for summary judgment at today’s hearing in Alexandria, Virginia. That means that the BMA is the owner of the painting, not claimant Martha Fuqua, who argued that she bought the painting at a 2009 flea market in good faith. Barring an appeal (or perhaps even with one), the painting will soon return to Baltimore from where it was stolen in 1951.

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Topics: hearsay, Pierre-Auguste Renoir, Potomack Company, flea market Renoir, ancient documents, Der Spiegel, Martha Fuqua, Baltimore Museum of Art, Litigation, business records exception, summary judgment, Museums, Leonie Brinkema, Paysage Bords de Seine, FRCP 56

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