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

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

Members of the Berkshire Museum File Appeal Papers to Stop Museum's Planned Sale of 40 Works from its Collection

Posted by Nicholas O'Donnell on January 16, 2018 at 6:56 PM

 (Boston, MA, January 16, 2018) Sullivan & Worcester LLP has filed its papers in the appeal by its clients, the members of the Berkshire Museum who sued to enjoin the museum’s sale of 40 works of art and sculpture.  The appeal was brought as a result of the Berkshire County Superior Court’s November 7, 2017 denial of their request for an injunction, and dismissal of the case.  That order denied not only the members’ request, but also a motion by another group that includes Norman Rockwell’s sons and the motion by Attorney General Maura Healey to pause the sale originally scheduled for November 13, 2017 at Sotheby’s in New York—a sale that would have included Rockwell’s Shuffleton’s Barbershop and other masterpieces. 

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Topics: Norman Rockwell, Sullivan & Worcester LLP, Sotheby's, Nicholas M. O'Donnell, Pittsfield, Berkshire Museum, Zenas Crane, Hudson River School, Frederic Edwin Church, Shuffleton’s Barbershop, Maura Healey, Massachusetts Appeals Court

Members of the Berkshire Museum Appeal Ruling on Planned Sale of Critical Pieces of its Collection

Posted by Nicholas O'Donnell on November 20, 2017 at 10:22 AM

Sullivan & Worcester LLP has filed an appeal on behalf of its clients, the members of the Berkshire Museum who sued to enjoin the museum’s sale of 40 works of art and sculpture.  The appeal is brought as a result of the Berkshire County Superior Court’s November 7, 2017 denial of their request for an injunction, and dismissal of the case (before the Appeals Court utlimately enjoined the sale until at least December).  That Superior Court order denied not only the members’ request, but also a motion by another group that include Norman Rockwell’s sons and the motion by Attorney General Maura Healey to pause the sale originally scheduled for November 13, 2017 at Sotheby’s in New York—a sale that would have included Rockwell’s Shuffleton’s Barbershop and other masterpieces. 

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Topics: Norman Rockwell, Sullivan & Worcester LLP, Sotheby's, Nicholas M. O'Donnell, Berkshire Museum, Zenas Crane, Shuffleton’s Barbershop, Attorney General, Maura Healey, Berkshire County Superior Court

Members of Berkshire Museum File Suit Seeking Injunction Against Sale of Art Collection

Posted by Nicholas O'Donnell on October 26, 2017 at 11:52 AM

Forty Masterpieces of American and European Art Scheduled for Auction

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Topics: Norman Rockwell, Sullivan & Worcester LLP, Sotheby's, Nicholas M. O'Donnell, Pittsfield, Zenas Crane, Trustees of the Berkshire Museum, Hudson River School, Frederic Edwin Church, Pieter de Hooch, Shuffleton’s Barbershop, Shaftsbury Blacksmith Shop

When Will We Get There?  The World Gathers in London to Consider the State of Restitution of Nazi-Looted Art.

Posted by Nicholas O'Donnell on September 15, 2017 at 5:13 PM

The National Gallery London hosted on September 12, 2017 the much-anticipated conference “70 Years and Counting: the Final Opportunity?” organized by the United Kingdom Department for Digital, Culture Media & Sport (DCCS), and the Commission for Looted Art in Europe (CLAE). Delegates from numerous countries gathered to consider the state of progress on the efforts to identify and return works of art lost during the Nazi era.  While the event had a truly international flair, the discussion centered primarily on the five countries that have created some sort of process to consider assertions of looted art in response to the Washington Principles on Nazi-Confiscated Art: England, France, Austria, the Netherlands, and Germany. 

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Topics: Victoria and Albert Museum, Kunstrückgabebeirat, Zentralinstitut für Kunstgeschichte, National Gallery London, Constantine Cannon LLP, Commission for Looted Art in Europe, Washington Principles on Nazi-Confiscated Art, Christie's, Advisory Commission, Johannes Nathan, Monica Dugot, Imke Gielen, Sotheby's, Neumeister Auction House, Richard Aronowitz-Mercer, Tony Baumgartner, Clyde & Co., John Glen, UK Spoliation Advisory Panel, The Orpheus Clock, Art Restitution Advisory Board, Margreet Soeting, H. Blairman & Sons Ltd., Katrin Stoll, Department for Digital Culture Media & Sport, DCCS, CLAE, 70 Years and Counting: the Final Opportunity?, Gabriele Finaldi, David Lewis, Minister for the Arts Heritage and Tourism, Sir Paul Jenkins, Dr. Antonia Boström, von Trott zu Solz Lammek, Simon Goodman, Sir Donnell Deeny, Jan Bank, Restitutions Committee of the Netherlands, Dr. Reinhard Binder-Krieglstein, Professor Dr. Reinhard Rürup, Jean-Pierre Bady, Commission pour l’indemnisation des victimes, CVIS, Dr. Christian Fuhrmeister, British Library, Nathan Fine Art, Stedelijk Museum, Pierre Valentine, Martin Levy

Conference in Cambridge—“From Refugees to Restitution: The History of Nazi Looted Art in the UK in Transnational Perspective”

Posted by Nicholas O'Donnell on January 31, 2017 at 10:55 AM

I am speaking at a conference on March 23-24, 2017 at the University of Cambridge (UK) entitled “From Refugees to Restitution: The History of Nazi Looted Art in the UK in Transnational Perspective.”  My presentation will address the various national panels created in response to the Washington Conference by European countries to address claims for Nazi-looted art in state collections.  The roster of speakers is impressive (present company excluded), and it promises to be a fascinating two days.  The program is available here, and the conference website is here

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Topics: Wiesbaden, London, Holocaust Art Restitution Project, Paris, Art Recovery Group, Constantine Cannon LLP, Emily Löffler, Pierre Valentin, Events, Johannes Nathan, Karlsruhe, Marc Masurovsky, Sotheby's, Nicholas M. O'Donnell, Emmanuelle Polack, Leopold Museum, Frankfurt, Jewish Claims Conference, Victoria Louise Steinwachs, Debbie De Girolamo, Tabitha I. Oost, Bianca Gaudenzi, Jewish Museum Prague, Robert Holzbauer, Tessa Rosebrock, Staatliche Kunsthalle, Laurel Zuckerman, Shlomit Steinberg, Richard Aronowitz-Mercer, Maike Brueggen, Nathalie Neumann, Simone Gigliotti, Royal Holloway University of London, Anne O. Popham, Ulrike Schmiegelt-Rietig, Isabel von Klitzing, Landesmuseum Mainz, Michaela Sidenberg, Mary Kate Cleary, Institut National d’Histoire de l’Art, Fluchtgut, Diana Kostyrko, Elizabeth Campbell, University of Denver, Evelien Campfens, Leiden University, Angelina Giovani, Jennifer Gramer, Agata Wolska, Nathan Fine Art GmbH, Potsdam, Friederike Schwelle, Art Loss Register, Provenance Research & Art Consulting

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

REMINDER: Art Crime and Cultural Heritage: Fakes, Forgeries, and Looted and Stolen Art at NYU June 4-6

Posted by Nicholas O'Donnell on May 27, 2015 at 5:41 AM

I am looking forward to next week’s Art Crime and Cultural Heritage symposium at NYU next month. I will be on a panel discussing the Gurlitt case moderated by Mel Urbach, along with Chris Marinello and Wesley Fisher. The program is as follows, and promises to be a fascinating event.

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Topics: University of Kansas, Megan Fontanella, Jordan Arnold, Klein & Solomon LLP, International Foundation for Art Research, Jo Backer Laird, Amy Adler, Sandra Cobden, Alfred Flechtheim, Betty Little, NYU School of Law, Shawnee State University, Guggenheim Museum, Davis Wright Tremaine LLP, Amr Al Azm, Christopher Robinson, Marla Diaz, ARIS Title Insurance Corporation, Judd Grossman, John Cahill, Alice Farren-Bradley, Inc., Boston University, Art Recovery Group, David Goldstein, Eleonora Nagy, Schiele, Jane C. H. Jacob, James Martin, Pryor Cashman LLP, Karl Geercken, Judith Pearson, Doreen Bolger, Kevin Ray, Museum of Modern Art, Peter Herdrich, Mel Urbach, ARIS, Chris Marinello, III, Pierre Ciric, Arader Galleries, the U.S. Department of Homeland Security, William L Charron, Christie's Inc., On the Shore of the Seine, Spencer Tomkins, W. Graham Arader, K2 Intelligence, MaryKate Cleary, Laurie Rush, Modern Sculpture Conservation LLC, Ciric Law Firm PLLC; Holocaust Art Restitution Pro, lston & Bird LLP, James Butterwick, Auctionata, Restitution, Colleen St Onge, Jonathan Illari, President’s Cultural Property Advisory Committee, Asian Art Research & Appraisals, Sullivan & Worcester LLP, Events, Simon Hornby, Senior Vice President and General Counsel, Bonnie Magness-Gardiner, Art Dealers Association of America Jane Levine, Jacob Fine Art, Wesley Fisher, Harry Ettlinger, Herrick Feinstein LLP, Baltimore Museum of Art, Portrait of Wally, Cummer Museum of Art & Gardens, Nicholas O'Donnell, National Stolen Art File and Art Crime Team, Conference on Jewish Material Claims Against Germa, Francis O'Connor, IFAR, Sotheby's, Bonhams, The Heritas Group, Ken Perenyi, Patricia J. Graham, Emily Kempin Professor of Law, Whitney Museum of American Art, Meridith Savona, Tim Carpenter, Vienna, Megan Noh, Butterwick Gallery LLC, Paysage Bords de Seine, Museum Security Network, Leopold Museum, Crozier Fine Arts Inc., Art Law Report, Mari-Claudia Jiménez, Sharon Flescher, Michael Danti, Holly Keris

California Resale Royalty Act Ruled Unconstitutional as to Out of State Sales, What Effect on the Market?

Posted by Nicholas O'Donnell on May 6, 2015 at 6:53 AM

In a decision long awaited by artists and auction houses in particular, the Ninth Circuit Court of Appeals has ruled that the California Resale Royalty Act of 1976 (CRA)—America’s only droit de suite—is unconstitutional top regulate any sales of art outside of California. The court concluded, however, that that portion of the law is severable from the rest, and let the regulation of in-California sales stand for further interpretation by a subsidiary panel of the appeals court. There are two likely aftereffects of this decision. Galleries and auction houses can put any concerns to rest about sales in New York in particular, but one has to wonder about the effect it will have on putting items for sale in California, which will effectively have a premium not present in other states. It also raises the possibility that the resulting piecemeal framework will motivate movement on the pending federal bill (the American Royalties Too (ART) Act of 2015) concerning resale royalties. Could this be the development that prompts movement in Congress?

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Topics: Legislation, Resale Royalties, Chuck Close, Supreme Court, Christie's, Cal. Civ. Code § 986(a), Dormant Commerce Clause, droit de suite, sales tax, Cal. Redev. Ass’n v. Matosantos, use tax, American Royalties Too (ART) Act of 2015, California Resale Royalty Act, Copyright, Ninth Circuit Court of Appeals, Sotheby's, eBay

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