Wednesday, January 14, 2015

Dunnington Partner Raymond J. Dowd to Keynote NYS Bar Association Trusts & Estates Event

Dunnington Partner Raymond J. Dowd will present the luncheon keynote lecture at the annual meeting of the Trusts and Estates Law Section of the New York Bar Association on January 28, 2015.  The Trusts and Estates Law Section is one of the largest sections of the New York State Bar Association, and its annual meeting attracts over six hundred attendees.  Mr. Dowd will address the topic Nazi Art Looting, Stolen Art and Our Museums: Why The Ghosts of The Past Still Haunt Us.  Tickets to the luncheon are available through

The Controversy Over Stolen Art In U.S. Museums

Why do American museums contain stolen European artworks acquired during and after World War II?  The National Stolen Property Act and comparable state laws have criminalized transporting, receiving and concealing stolen property for decades, yet the problem persists.  The keynote address will explore the reasons for this and the implications for trusts and estates practitioners.  

The Payne-Aldrich Tariff Act of 1909 cleared the way for America’s wealthiest citizens to import a vast collection of European art into the United States tax-free.  In the 1930s, a dispute between Andrew W. Mellon and the Internal Revenue Service resulted in the allowance of a tax deduction for the fair market value of art donated to U.S. museums. 

Following World War II, affluent American collectors clamored for bargain-priced art to donate to U.S. museums in exchange for substantial reductions on their personal income taxes.  Nazi spoliations and the murders of millions of Jews and others meant that the international markets were flooded with cheap, albeit stolen, artworks.  From 1945 through the early 1960s, the U.S. State Department issued warnings to U.S. museums, collectors, and dealers, advising them not to acquire artworks without solid provenance and requesting that they assist the U.S. in recovering artworks belonging to European citizens.  These State Department warnings were ignored by museums hungry to build world-class collections of European art.  Their donors, buoyed by a strong dollar, bought stolen art on the cheap and took massive tax deductions based on sale prices of comparable pieces from the latest auctions. 

The loophole in the tax code incentivizing donations of stolen art persists today, raising profound questions of tax fairness and abuse of not-for-profit corporations nationwide.  As a result of this breach of the public trust, the American public continues to subsidize museums with tax breaks yet will inherit collections tainted by stolen or undocumented artworks.  As U.S. museums have repeatedly acknowledged, the problem of artworks lacking appropriate provenance documentation in U.S. museums is a tremendous one, raising serious questions about the stewardship of our nation’s museums.

Over the last decade, Mr. Dowd has represented a number of heirs of Holocaust victims and owners in trying to reclaim artworks stolen during World War II faced with laches defenses.  In 2006, Mr. Dowd was retained by the heirs of artist George Grosz to recover three artworks at the Museum of Modern Art stolen from Grosz’s Jewish art dealer Alfred Flechtheim shortly after Grosz fled in January 1933 to New York, where he taught at the Art Students League on 57th Street.  Grosz was declared “cultural enemy number one” by the Nazis, who were enraged by Grosz’s caricatures of Hitler and other prominent party members.  Flechtheim’s inventory of Grosz artwork was stolen (“Aryanized”) in 1933.  Mr. Dowd sued on April 9, 2009, within three years of the MoMA’s trustees refusing to return the artworks.  Under New York’s traditional “demand and refusal” rule, the suit was timely.  However, the Southern District of New York found an “implied refusal” because the MoMA had spent a lengthy amount of time in settlement discussions.  Grosz v. MoMA, 772 F.Supp.2d 473 (S.D.N.Y. 2010).  Mr. Dowd went all the way to the U.S. Supreme Court in challenging this ruling.  403 Fed.Appx. 575 (2d Cir. 2010); 132 S.Ct. (2011)(denying cert.).  MoMA continues to resist sharing evidence necessary for the heirs to demonstrate that the artworks were stolen from Alfred Flechtheim and laundered through Curt Valentin, an agent for the Nazis operating in New York.

In 2008, Mr. Dowd was lead trial counsel in the Southern District of New York the first Holocaust-era art case in U.S. federal court history ever to go to trial: Bakalar v. Vavra, 2008 WL 4067335 (S.D.N.Y. 2008).  The trial judge applied Swiss law to give a 1964 purchaser good title to the artwork.  Mr. Dowd successfully appealed to the Second Circuit, obtaining a reversal and remand for the trial judge to consider evidence of Nazi looting in the record and to apply New York law.  619 F.3d 136 (2d. Cir. 2010).  The trial judge, in decisions affirmed by the Second Circuit Court of Appeals, excluded an expert report by Dr. Jonathan Petropoulos concluding that the artworks were looted from Fritz Grunbaum by the Nazis and instead decided that although the purchaser could not show good chain of title, Grunbaum heirs’ claims were barred by the doctrine of laches, despite there being no evidence that the family knew that any artworks had survived World War II.  819 F. Supp.2d 298 (S.D.N.Y. 2011) aff’d 500 Fed. Appx. 6 (2d Cir. 2012), cert. denied 133 S.Ct. 2038 (2013).  Grunbaum’s heirs continue to advocate for the consideration by the authorities of the expert evidence of Nazi looting of Grunbaum’s collection and for restitution to be made.

On November 4, 2014, Mr. Dowd succeeded in recovering for the heirs of Fritz Grunbaum Town on the Blue River (1910), a watercolor drawing by the Austrian artist Egon Schiele which was auctioned at Christie’s following its recovery.  Grunbaum was a renowned Viennese cabaret performer who had eighty-one Schiele artworks in his apartment when the Gestapo arrested him on March 22, 1938 and deported him to the Dachau Concentration Camp, where he died penniless on January 14, 1941.  Town on the Blue River sold at auction for 2.5 million dollars—more than double Christie’s high estimate—and was the subject of an October 24, 2014 New York Times article, Dispute Over Nazi Victim’s Art: Christie’s and Sotheby’s Differ on Handling of 2 Schieles.  European and American museums and private collectors today hold many artworks stolen from Fritz Grunbaum, and Mr. Dowd continues recovery efforts on behalf of the Grunbaum family.

In Matter of Flamenbaum, 22 N.Y.3d 962, 1 N.E.3d 782 (2013), Mr. Dowd succeeded on behalf of the world-famous Pergamon Museum in Berlin in persuading the New York Court of Appeals to order the return of an ancient Assyrian tablet dating to the reign of King Tukulti-Ninurta II (1200 B.C.).  The tablet went missing when Stalin’s troops invaded and occupied East Berlin in 1945.  It turned up in 2006 during a contested accounting proceeding in Nassau County Surrogate’s Court in a safe deposit box that belonged to a deceased Auschwitz survivor.  Ultimately, the New York Court of Appeals rejected the executor’s argument that the “spoils of war” doctrine permitted the decedent to retain the amulet.  The Court further rejected the argument that the doctrine of laches barred the Museum’s restitution claim.  In the wake of Flamenbaum, it is clear that under New York law, where there is a thief in the chain of title, no subsequent possessor can take good title and that the burden of proving the affirmative defense of laches is a heavy one.

In 2013, Mr. Dowd wrote “Nazi Looted Art and Cocaine: When Museum Directors Take It, Call The Cops” 14 Rutgers Journal of Law & Religion (May 2013).  In the article, Mr. Dowd argues that statutes of limitations and laches cannot be used to launder title to stolen property, that Nazi looted art ought to be treated like contraband or drugs, and that due to the unique facts of World War II and U.S. foreign policy repudiating Nazi acts of property spoliation, U.S. museums should not be able to shield Nazi-era stolen art in their collections from scrutiny and restitution.  In 2013, as a result of advocacy efforts in which Mr. Dowd participated, the Federal Bar Association now advocates that Congress should create a Commission on Nazi-Confiscated Art Claims to assist heirs in recovering Holocaust-era looted assets.

About Ray Dowd

Mr. Dowd’s first case in New York County Surrogate’s Court was Matter of Doris Duke, a dispute over the estate of the American Tobacco heiress.  In 1994, Mr. Dowd successfully petitioned for the removal of Doris Duke’s butler, Bernard Lafferty, and U.S Trust Company as co-executors of the Duke estate.  These efforts aided in the recovery of millions in misspent funds.  Mr. Dowd’s efforts were chronicled in Vanity Fair magazine and on the front pages of New York’s tabloids.  The case garnered worldwide headlines and was immortalized by Hollywood.  As part of the subsequent proceedings, Mr. Dowd succeeded in upholding the first testamentary honorary pet trust in New York State history by using the life of the trustee as the measuring life to create a $100,000 trust fund for Ms. Duke’s dogs.  Mr. Dowd has since litigated numerous contested probate matters, guardianship proceedings, and accountings, including a rare contested adoption proceeding in Surrogate’s Court on behalf of a 9/11 victim.

Mr. Dowd is a partner in the law firm of Dunnington, Bartholow & Miller LLP in New York City.  He currently serves on the Board of Directors of the Federal Bar Association, having served as General Counsel (2011-2012), Vice President for the Second Circuit (2008-2013), President of the Southern District of New York Chapter (2006-2008), on the Editorial Board of The Federal Lawyer (2009-2011), and on the FBA Government Relations Committee (2010-2013).  From 2013-2014, Mr. Dowd served as President of Network of Bar Leaders, a coalition of over fifty bar associations in the Metropolitan New York area.  In 2013, he was appointed to serve on the Planning Committee for the 2014 Second Circuit Judicial Conference titled Cybersecurity in an Age of Cyberterrorism.  Mr. Dowd is the author of Copyright Litigation Handbook (West 8th Ed. 2014-2015) (updated annually).

Mr. Dowd’s practice consists of federal and state trial and appellate litigation, arbitration and mediation.  He served as lead trial counsel in notable cases involving art law, copyrights, trademarks, cybersquatting, privacy, trusts and decedents estates, licensing, corporate and real estate transactions.  He has litigated questions of Austrian, Canadian, French, German, Italian, Russian and Swiss law.

Mr. Dowd lectures frequently on copyright litigation, including the prestigious Copyright Society of the U.S.A.  At the 2009 Prague Conference on Holocaust-Era Assets, he was selected for an expert legal panel, and he has lectured worldwide on the matter of looted art, including at the Jewish Museum in Berlin, Yad Vashem in Jerusalem, the Pennsylvania Academy of the Fine Arts, the San Francisco War Memorial, the U.S. District Court for the District of Columbia, and many chapters of the Federal Bar Association.  In 2007, he co-founded the annual Art Litigation and Dispute Resolution Institute at New York County Lawyers’ Association.  In 2014, Mr. Dowd was selected by the Brandeis Society to deliver a lecture commemorating the 76th anniversary of Kristallnacht.  He currently serves on the Board of Governors and is Chair of the Education Committee at the National Arts Club in New York City.

Mr. Dowd is a graduate of Manhattan College (B.A. International Studies cum laude, 1986) and Fordham Law School (1991), where he served on the Fordham International Law Journal.  He speaks French and Italian.  He is admitted to practice in the State of New York, to the Southern and Eastern Districts of New York, and to the First, Second, Fifth, Seventh, Ninth, and Tenth Circuit Courts of Appeals.

About Dunnington

Dunnington, Bartholow & Miller LLP was selected as a 2014 Top Ranked Law Firm for Intellectual Property by Corporate Counsel/ALM/The American Lawyer.  Dunnington is a full-service law firm providing corporate, litigation, intellectual property, real estate, taxation and estate planning services for an international clientele.  Find out more at

Attorney advertising.  Past results do not guarantee future outcomes.
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

Saturday, December 13, 2014

75 Last Minute 2014 Year-End Tax Savings Tips from Dunnington

Season’s Greetings!

As the year comes to a close, so does the period for tax planning for the year 2014.  My partner Joe Michaels has composed a Memorandum entitled "75 Last Minute 2014 Year-End Tax Savings Tips” that you may find helpful in doing some last minute 2014 income, gift and estate tax planning, as well as of assistance in preparing your 2014 Federal, State and local income tax returns, and planning for the coming year.  The Memorandum may be accessed by clicking here.  The Memorandum is interactive in the sense that if you “click” on a subject in the index, it will take you directly to that subject.

The first two introductory pages review some of the overall provisions and some changes that became effective in 2014, as well as reminders regarding certain issues.  The top Federal income tax bracket remains at 39.6% for 2014 and 2015, the maximum rate of tax on dividends and interest is 20% for 2014 and 2015, the gift tax annual exclusion remains at $14,000 for 2014 and 2015, but the lifetime gift/estate tax exemption rises from $5,340,000 in 2014 to $5,430,000 effective January 1, 2015.  The 3.8% Medicare tax on high earners’ investment income and additional 0.9% Medicare tax added to the 1.45% already paid by a highly paid employee on his/her compensation and the earnings of “highly paid” self-employed individuals remain in place.  The Summary also includes a review of the changes to the New York estate tax laws effective April 1, 2014 and advises that as of the date of this Memorandum, there are some 57 tax provisions (mostly “tax credits”) that have not been extended to 2014 and another six that will expire on December 31, 2014.  It is possible that Congress may extend these credits to 2014 and beyond, so it would be wise to consult your tax advisor in future months to determine whether all or part have been extended.

Section 74 of this Memorandum includes a summary of the Patient Protection and Affordable Care Act of 2010.  Most of these provisions are now in effect.  Section 75 contains a description of some Offshore and Foreign Tax Provisions enacted in prior years but which still impact 2014 and future years.

If you have any questions regarding any of the income, gift or estate tax planning ideas or other provisions summarized in “75 Last Minute 2014 Year-End Tax Savings Tips,” please let us know.

Best wishes for a Happy Holiday Season and a Happy New Year.
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

Sunday, December 07, 2014

Saving Mona Lisa: Nazi Art Looting and The Great Treasures of The Louvre

Nazi Art Looting Revealed: Book Review: Saving Mona Lisa: The Battle To Protect The Louvre & Its Treasures During World War II by Gerri Chanel (2014 Heliopa Press) $18.95 325 pp.

         "You put all your artwork in a basement?  You're crazy!" yelled James Rorimer at a director of the Louvre Museum when, in the summer of 1944 he learned how the French had managed to safeguard the Louvre's treasures against the ravages of World War II.  According to Gerri Chanel, author of Saving Mona Lisa, this exchange did nothing to endear Rorimer, who would go on to become the Director of the Metropolitan Museum of Art in New York City and who would be immortalized by the actor Matt Damon in George Clooney's film "Monuments Men," to the French.

         In Saving Mona Lisa, Gerri Chanel has succeeded in an original work of scholarship that grips the reader in with stories of French bureacrats tying up Adolph Hitler, Hermann Goring and the various Nazi art looting efforts in administrative red tape.   Any reader who has run into the famous French bureaucratic intransigeance will laugh at Louvre Museum Director Jacques Jaujard's creative ways of thwarting a rogue's gallery of Nazis as he careens around France with masterworks tied to unsteady trucks.

        Chanel illustrates just why the French are the world’s masters of diplomacy and intrigue. When Fieldmarshal Hermann Goering sought to steal important artworks and hide his tracks by proposing a voluntary "exchange" (under obvious duress) that would avoid an international outcry that an outright theft would create, Jaujard brilliantly proposed that France make a "gift" to Goering.  Jaujard knew the gesture would enrage Hitler and world opinion against Goering. The Fieldmarshal was stopped in his tracks. Momentarily.
        Chanel starts from the beginning, showing Hitler as a failed artist whose great ambition was to possess the world’s great art treasures, particularly those in France deemed of “Germanic’ origin.  As Nazi fortunes waxed and waned, Nazi attempts to seize, exchange, "safeguard" the Louvre's treasures increased in innovation and dark violence.  Jaujard's efforts to thwart the Nazis were undercut by an eagerly pro-Nazi Vichy regime, on the one hand.  On the other, sympathetic Nazis assisted Jaujard in his game of administrative chess.  The Nazi military administration insisted on control, as did the civilian overseers.  By pitting Nazi against Nazi in a delicate battle of the egos, the smooth French diplomat Jaujard escaped from one frying pan into the next fire in a gripping narrative that will have the reader, feeling Nazi hands around Jaujard's vulnerable French throat.

         Central to the narrative is the Mona Lisa.  A red dot was placed on the crate of any important artwork.  Very important works sported two red dots.  The Mona Lisa was the only artwork sporting three red dots.  To avoid Nazis learning of the contents of a particular crate, the dots were the only markings.  Among thousands of crates, important artworks were able to hide in plain sight, while the French pretended to compile inventories to comply with orders emanating directly from Hitler.  Among thousands of crates, the Mona Lisa spend the war dodging, ducking and evading.

         Chanel's tale is enhanced by enemies feared more than Nazi looters.  Humidity, fire, Allied bombs, flame-spewing transport trucks fired by coal (after gasoline supplies ran out), French resistance fighters hiding weapons and literature among crates.... Chanel brings all of these dangers to light in a compelling way that will cause any art lover's blood pressure to rise and fingernails to be chewed off.

Leonardo DaVinci's Mona Lisa - Still Smiling!

         In April 1943 London's BBC broadcast the radio message "the Mona Lisa is smiling" to a puzzled, war torn continent.  This coded message let Jaujard know that the Allies had received his maps showing the locations of the Louvre's treasures and that Allied bombers had been instructed to avoid those areas.

         Saving Mona Lisa is amply illustrated.  Photos showing the battle scars on the wall of the Louvre and the masses of people stampeding in the runup to the liberation of Paris emphasize how the Louvre was physically located on the front lines of battle during hand to hand combat.

         In 2014, the world's museums have come under fire for failing to research the provenance of their artworks and to return them to Nazi victims.  Saving MonaLisa is a great example of a greater history being told through the provenance of one artwork.   The story contains deaths, failures (Nazis burned approximately five hundred artworks in the Tuileries gardens despite the best efforts of Jaujard and his spy Rose Valland who was stationed in the Jeu de Palme museum that was used as a Nazi staging point).  While Mona Lisa escaped, many other artworks did not, including collections looted from Jewish families.The full story is yet to be told, and the museums of the world and particularly the United States should commit resources to returning stolen artworks to the families of looting victims.  Let's hope that Chanel's SavingMona Lisa will inspire a new generation of provenance researchers to look at the fruits of Nazi art looting that may be found in their local museums.
George Clooney's The Monuments Men - Cate Blanchett as Rose Valland and Matt Damon as James Rorimer

         Let’s hope that Hollywood and history pays attention to Saving Mona Lisa --where the truth is more entertaining than fiction!
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

Wednesday, November 19, 2014

Art Law Event Of The Year This Friday!

7th Annual Art Litigation and Dispute Resolution Practice Institute

Friday, November 21, 2014, 9:00 AM – 5:00 PM
Member Price:   $200
Non-Member Attorney Price:   $250
Law Office Staff:   $50

Intended Audience:
Non-attorney may register as law office staff
Click Here to download orderform

Location: 2nd Floor Auditorium
Course ID: C112114
Credits: 8 NJ Credits: 3 Ethics; 5 General
8 NY Credits: 3 Ethics; 1 Skills; 4 PP/LPM; Transitional and Non-transitional
Course Description:
For the 7th consecutive year, join us for this special program which brings together a diverse roster of speakers ranging from artists, art consultants, appraisers, members of the bench, bar, museums, art galleries,  auction houses,  to government officials and members of non-profit organizations as they discuss the most relevant legal issues affecting the art world today.
Welcome and Introductory Remarks
Panel 1: Public Art -- Legal Controversies Over Large-Scale Displays
Panel 2: Should Artists Get a Cut? Resale Rights on Capitol Hill
Panel 3: Real or Fake? What's Happening With Authentication and Indemnification
Lunch (Provided) and Keynote Address
Panel 4: Matter of Flamenbaum and the Recovery of Antiquities -- News from the NY Court of Appeals
Panel 5: Are Museums Researching Their Collections? International Museum Ethics and the Holocaust
Closing Remarks and Questions and Answers

Lunch will be provided
Program Chairs: Andrea Crane, Private Art Dealer; Hon. Stephen Crane (Ret.), JAMS; Raymond Dowd, Dunnington, Bartholow & Miller LLP
Featured Artist: Frank Stella
Keynote Speaker: Lucian Simmons, Senior Vice President, Provenance and Restitution, Sotheby's

Introduction By: Judd B. Grossman, Grossman LLP, Chair, NYCLA's Art Law Committee
Program Co-sponsors: NYCLA's Art Law Committee and Entertainment Intellectual Property & Sports Law Section
Faculty: Leila Amineddoleh, Galluzzo & Amineddoleh, Adjunct Professor, Fordham University School of Law; Hon. Ariel E. Belen (Ret.), JAMS; Peg Breen, President, The New York Landmarks Conservancy; Sean Avery Cavanaugh, Vice President, Milton and Sally Avery Foundation; Hon. Matthew Cooper, NYS Supreme Court; Hon. Stephen Crane (Ret.), JAMS; Raymond Dowd, Dunnington, Bartholow & Miller LLP; Darlene B. Fairman, Herrick, Feinstein LLP;. Dr. Wesley A. Fisher, Director of Research Conference on Jewish Material Claims Against Germany, Inc.;Hon. Nicholas G. Garaufis, E.D.N.Y.;Hon. Paul G. Gardephe, SDNY;Judd B. Grossman, Grossman LLP; Hon. Barbara Jaffe, NYS Supreme Ct.;  Lisa Kim, Cultural Affairs Director at Two Trees Management; Betty Krulik, Betty Krulik Fine Art Limited, President, Board of Directors Appraisers Association of America; Hon. Edward W. McCarty, III, Surrogate's Court, Nassau County; Victoria Milne, NYC Department of Design and Construction; Congressmember Jerrold Nadler, US Representative, NY 10th Congressional District; Seth Presser, Jaspan Schlesinger LLP; Steven R. Schlesinger, Jaspan Schlesinger LLP; Lucian Simmons, Senior Vice President, Provenance and Restitution, Sotheby's;Howard N. Spiegler, Herrick, Feinstein LLP; Frank Stella, Artist; Irina Tarsis, Director and Founder of Center for Art Law
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

Monday, November 10, 2014

Pretrial Practice in the Southern District of New York - Thurgood Marshall Courthouse


Federal Bar Association

Southern District New York Chapter & Civil Rights Section

In Conjunction with New York County Lawyers’ Association

Cordially Invites You to this CLE:

Pre-Trial Practice in the Southern District of New York

A Panel Discussion with the Magistrate Judges of the SDNY 

November 13, 2014

4:00 -7:00PM 

SDNY Thurgood Marshall Courthouse,

40 Centre Street, Room 506, New York, NY 

Topics Include:

Initial Conference, Discovery & Sanctions, Settlement Conferences,

Consent to Proceed before a Magistrate Judge, and Best Practices

3 NY Credits: 0.5 Ethics; 1.5 Skills; 1 PP/LPM; Transitional and Non-transitional

The New York County Lawyers’ Association is currently certified as an Accredited Provider of

Continuing Legal Education in New York and New Jersey.

        Moderator: Wylie Stecklow, Stecklow Cohen & Thompson

        Scheduled Panelists:

           Hon. Magistrate Judge Michael Dolinger,
           Hon. Magistrate Judge Ronald Ellis,    
           Hon. Magistrate Judge Debra Freeman,
           Hon. Chief Magistrate Judge Frank Maas,   
           Hon. Magistrate Judge Judith McCarthy,
           Hon. Magistrate Judge Sarah Netburn,
           Hon. Magistrate Judge Henry Pitman,
           Hon. Magistrate Judge Lisa Margaret Smith

Will include discussion among panelists and Q&A from participants


FBA and NYCLA Members: $40, all others $55*
 Copyright law, fine art and navigating the courts. All practice, no theory.
Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd Copyright Litigation Handbook on Westlaw