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.
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
Detroit police have issued a warrant for well-known artist Shepard Fairey in connection with his recent visit to the city, on suspicion of vandalism. While Fairey was apparently in Detroit to paint a commissioned mural at One Campus Martius, he told the Detroit Free Press, “I still do stuff on the street without permission. I'll be doing stuff on the street when I'm in Detroit.” According to the Free Press:
Topics: Richard Prince, Jeff Koons, Patrick Cariou, Moral Rights, Andre the Giant, Graffiti Art, Visual Artists Rights Act of 1990, Barack Obama, One Campus Martius, Banksy Does New York, VARA, Banksy, Shepard Fairey, appropriation copyright, Copyright, 5Pointz, Hope, Detroit Free Press, Associated Press, Fair Use
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.
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
Periodically I like to make note of books about art law that I find exceptional. Art law is many things to many people, and one of the interesting things in surveying the literature is seeing what selection various authors make in terms of their subject matter. I reviewed the excellent Art Collecting Legal Handbook by Massimo Sterpi and Bruno Boesch recently, and the strength of that book was their choice to take a set of questions recurring in art collecting in particular to experts around the world. It’s a fantastic resource for collectors and lawyers.
Topics: Art Finance, Stropheus, Auctions, Judith Prowda, authentication, droite de suite, Moral Rights, art law, expert opinions, dealers, Restitution, Massimo Sterpi, Art Collecting Legal Handbook, Galleries, Copyright, Books, . Auctions, Sotheby’s Institute, Fair Use, Berne Convention, Bruno Boesch
After word got around that the American Royalties Too Act of 2014 had expired, (covered by Whitney Kimball at ArtFCity, Coline Milliard at ArtNet here, and Jillian Steinhauer at Hyperallergic here), the natural question of course remains, “what’s next.” Steinhauser spoke to John Doty, director of Jerrold Nadler’s office. Doty said, “Congressman Nadler does plan to reintroduce the bill this Congress. An exact date and exact bill language have not yet been decided.
Topics: Resale Royalty Rights, Resale Royalties, Coline Milliard, Hyperallergic, Moral Rights, Kibum Kim, Whitney Kimball, art, ArtFCity, Jerrold Nadler, Jillian Steinhauer, The Contract, Copyright, Seth Sieglaub, John Doty, ArtNet, Robert Projanksy, American Royalties Too Act of 2014, Artist’s Reserved Rights Transfer and Sale Agreeme
A quirk of parliamentary procedure is that any bill in Congress exists only for so long as that particular Congress is in session. This week, the 114th Congress took its seats, meaning that any bill not passed by both the House of Representatives and the Senate, and signed by the President, is a dead letter. This is the fate of many, many bills—indeed most.
Topics: Legislation, Resale Royalties, Chuck Close, Moral Rights, Nazi-looted art, Foreign Sovereign Immunities Act, 28 U.S. § 1605, Art Law Day, 114th Congress, 22 U.S.C. § 2459, City of Amsterdam, Rep. Jerrold Nadler (D-NY), FSIA, expropriation exception”, droit de suite, IFSA, Foreign Sovereign Immunities, Senate, House of Representatives, Immunity from Seizure Act, President, Foreign Cultural Exchange Jurisdictional Immunity
As the ball teeters above Times Square, and the Glühwein begins to mull on the Art Law Report stove (don’t forget the cinnamon!), a gimmicky but apropos act of reflection is to look back at the biggest stories of 2014, both in art law generally and for yours truly and Sullivan & Worcester LLP. In highly subjective, unverifiable, and immediately criticizeable order, here they are. Thanks as always for reading, and best wishes for in interesting, prosperous New Year. If you agree, disagree, or otherwise, please continue to stay in touch and carry the conversation forward.
Topics: Comedy Central, Deaccession, Schwabinger Kunstfund, Charitable Foundations, National Gallery of Art, Knoedler, Cornelius Gurlitt, Blogs, authentication, authenticity, parody, William Corcoran, Moral Rights, Above the Law, Germany, George Washington University, Glühwein, Nazi-looted art, Gurlitt Collection, Norton Simon, Graffiti Art, Superior Court, Cy Pres, Washington DC, VARA, Detroit Institute of Arts, Bankruptcy, Corcoran College of Art + Design, Dumb Starbucks, Preemption, Asher Edelman, DIA, Restitution, Marei Von Saher, Artmentum GmbH, Bavaria, Sullivan & Worcester LLP, World War II, Copyright, Times Square, Art Fairs, Kunstmuseum Bern, Corcoran Gallery, Ninth Circuit Court of Appeals, Museums, Raubkunst, Detroit Bankruptcy, Fair Use, Münchner Kunstfund, Foreign Cultural Exchange Jurisdictional Immunity, Graffiti, Civil Forfeiture, Art Law Report
Several weeks ago, the parties to the appeal over the constitutionality of the California Resale Royalty Act (CRRA) briefed the question about whether the Ninth Circuit Court of Appeals should hear the case, rather than a three-judge panel that would otherwise be assigned to the case. The Ninth Circuit granted the petition yesterday, meaning the appeal will now go before the full court.
Topics: Legislation, Foie Gras, 538 U.S. 644, N. Randy Smith, 729 F.3d 937, Auction Houses, California Health & Safety Code § 25982, Chuck Close, 730 F.3d 1070, Moral Rights, Commerce Clause, Affordable Care Act, Ass’n des Eleveurs de Canards et d’Oies du Quebec, Judge Jacqueline H. Nguyen, Jerrold Nadler, Christie's, Research & Mfrs. of Am. v. Walsh, California Resale Royalties Act, Ethanol, Dormant Commerce Clause, 491 U.S. 324, U.S. Constitution, Copyright, royalties, Garcia, Ninth Circuit, Cal. Code Regs. tit. 17 §§ 95480–90, Sotheby's, Rocky Mountain Farmers Union v. Corey, Healy v. Beer Inst., Ferdinand F. Fernandez, eBay, Google, Mary H. Murguia
Recurring events involving public art have underscored the tension between that expression and the law. Banksy’s “residence” in New York last fall broached this subject, but this summer’s Brooklyn Bridge flag incident, and several new lawsuits asserting copyright in graffiti will test the bounds of what the law protects and what it permits. As Banksy says in one of his murals, "graffiti is a crime."
Topics: Burrow-Giles Lithographic Co. v. Sarony, Ahol Sniffs Glue, David Anasagasti, Steel, City as Canvas, Moral Rights, Argentina, Public Art, Graffiti Art, Philippa Loengard, Visual Artists Rights Act of 1990, Leonardo’s Last Supper, Columbia Law School’s Kernochan Center for Law Med, Chicago, Museum of the City of New York, VARA, Public Expression, Michael Bloomberg, American Eagle, Terry Gilliam, Banksy, 17 U.S.C. § 106A, Copyright, Buenos Aires, 5Pointz, Revok, Roberto Cavalli, vandalism, Reyes, Graffiti, The Atlantic, New York
The defendants in the case on appeal over the constitutionality of California’s Resale Royalty Act have just briefed the court’s question about whether the full court should rehear the case. Responding to an order that the parties explain whether the case conflicts with recent Ninth Circuit precedent, Christie’s, Sotheby’s, and eBay all argued emphatically that no conflict justifies reinstating the law that a District Court struck down in 2012.
Topics: Legislation, Foie Gras, Resale Royalties, 538 U.S. 644, N. Randy Smith, 729 F.3d 937, Auction Houses, California Health & Safety Code § 25982, Chuck Close, 730 F.3d 1070, Moral Rights, Commerce Clause, Affordable Care Act, Innocence of Muslims, Ass’n des Eleveurs de Canards et d’Oies du Quebec, Judge Jacqueline H. Nguyen, Christie's, Research & Mfrs. of Am. v. Walsh, California Resale Royalties Act, Ethanol, Dormant Commerce Clause, 491 U.S. 324, U.S. Constitution, Copyright, royalties, Garcia, Ninth Circuit, Cal. Code Regs. tit. 17 §§ 95480–90, Sotheby's, Rocky Mountain Farmers Union v. Corey, Healy v. Beer Inst., Ferdinand F. Fernandez, eBay, Google, Low Carbon Fuel Standard, Mary H. Murguia