Monday, December 28, 2009
Leopold Foundation Investigation Report Issued: Austria To Investigate Leopold Museum, Victim Compensation Promised
Apparently, the Leopold is refusing to return the stolen artworks, but will offer money instead.
More stalling from Austria on Egon Schiele's Dead City and Portrait of Wally. Austria claims to have been investigating these cases for a decade, it is scandalous that they haven't yet done the right thing.
Let's hope Austria releases the report quickly.
A rough summary follows:
Leopold Museum: First Restitution Report
Exchange by all participants on the basis of recognized facts. Report by the provenance researchers engaged by the Leopold Museum and Culture Minister Claudia Schmied. According to Schmied’s plan, an independent commission will be created in the second half of January that will make recommendations about returning objects. The Leopold Stiftung has also said that as a “sign of good will,” they are prepared to make financial contributions to victims and heirs.
The provenance researchers, Michael Vladika and Sonja Niederacher have drafted a report of around 2,000 pages, but have not released the details. This report is supposed to be published in January. Until then, they are bound by confidentiality agreements. The Ministry and the Leopold Museum are taking time to study the report.
The researchers said that they need more time to study the collection of cabaret performer Fritz Gruenbaum, from whose collection Dead City III and Portrait of Wally were confiscated in New York in 1998, and which precipitated a debate. Wally is the subject of an on-going court case in New York and is not treated in the report.
The report covers, among other works, four Schiele graphic works from the collection of Karl Maylaender, who was deported to Lodz in 1941. It also treats three works by Anton Romako that were taken from the collector Oskar Reichel, which Leopold acquired by exchange.
If the Leopold Collection, which has been a foundation since 1994, is considered to fall under the 1998 Restitution Law [which applies to state collections] then these works would certainly be the subject of restitution cases. Leopold has maintained that he acquired these works in good faith as a private citizen. The question is, “what did he really know?” stands at the center of the matter.
Thursday, December 10, 2009
Wednesday, December 09, 2009
December 11, 2009
First Annual FBA Hawaii Conference
Location: The Royal Hawaiian Hotel
Speakers: Lawrence Baca, FBA President; Hon. William A. Fletcher, Ninth Circuit; Hon. Gerald Bard Tjoflat, Eleventh Circuit; Prof. Kathleen Sullivan, Stanford Law; Prof. Linda Krieger, Richardson School of Law; Robert Kohn, FBA Federal Litigation Section; Raymond Dowd, FBA Southern District of New York Chapter; Simeon Baum, FBA Alternative Dispute Resolution Section; Claudia Bernard, Chief Ninth Circuit Mediator
CLE: 6.5 CLE hours on federal appellate, trial, and ADR topics. Program includes continental breakfast, lunch, and evening reception.
Registration: View schedule at a glance or complete conference program. Register online or download printable form. For more information, contact Melissa Stevenson at firstname.lastname@example.org or (571) 481-9100.
Conference Hotel: The Royal Hawaiian, A Luxury Collection Resort. Conference room rate: $250 per night, garden view, plus applicable taxes, guaranteed through November 11, 2009, thereafter on space available basis (special rate upgrades also available). Reservations call: (800)-782-9488 or (808) 921-4621. Alternative: Hilton Hawaiian Village, Beach Resort & Spa. Walking distance to conference hotel. Special room block rate of $161 per night, plus applicable taxes, guaranteed through November 11, 2009, thereafter on space available basis. Reservations call: 808-949-4321, use Group No. 610, Group Confirmation No. 1000537328.
The program will be videotaped and available for sale. For more information, http://www.nycla.org/.
Tuesday, December 08, 2009
US State Dept Announces January 7, 2010 Town Hall on Creating US Commission on Restituting Artworks Stolen During the Holocaust
In 2006, AAMD President James Cuno testified before Congress that there were "tens of thousands" of potentially problematic artworks in US museums.
Last night's airing of the film The Rape of Europa on PBS sparked a number of emails from friends who care about this issue.
US museums have shamefully abandoned their commitments to fully research their collections, to make provenance information public and transparent, and to restitute stolen artworks to the rightful owners.
[Federal Register: December 8, 2009 (Volume 74, Number 234)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF STATE
[Public Notice 6832]
Town Hall Meeting To Consider the Establishment of a U.S.
Commission on Cultural Materials Displaced During World War II, and the
Implementation of the Art Restitution Provisions of the June 30, 2009
The Department of State's Special Envoy for Holocaust Issues is
calling a Town Hall Meeting January 7, 2010 from 1 p.m. to 4 p.m. at
the Department to get the views of interested individuals and
organizations on the establishment of a U.S. commission on cultural
materials displaced during World War II. The meeting will also discuss
the June 30, 2009 Terezin Declaration, the text of which is at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.state.gov/p/eur/rls/or/126162.htm.
Individuals wishing to attend this Town Hall Meeting should
register no later than January 5, 2010 by emailing the following
information to Ms. Carolyn Jones-Johnson (Jones-JohnsonCD@state.gov):
Date of Birth
Number of Government-issued Picture ID (Driver's License Number,
including State of Issuance, U.S. Passport or Alternate Government-
Issued Picture ID)
Organization which you represent, and its Address and Phone Number
Home Address (only if attending as an individual)
Those who register are urged to arrive at the Department by 12:45
p.m. to allow time for security screening. Upon arrival, show a valid
government-issued identification (a U.S. state driver's license or a
U.S. passport.) The official address of the State Department is 2201 C
Street, NW., Washington, DC. Attendees should use the ``23rd Street
Entrance'' on the West Side of the State Department's Harry S. Truman
Building, located on 23rd Street between C Street and D Street, NW.,
Written comments on the above subjects may also be provided to the
same e-mail address for Ms. Jones-Johnson cited above.
Dated: December 2, 2009.
Ambassador J. Christian Kennedy,
Special Envoy for Holocaust Issues, Department of State.
[FR Doc. E9-29226 Filed 12-7-09; 8:45 am]
Sunday, November 01, 2009
Second Annual Art Litigation and Dispute Resolution Institute at New York County Lawyers' Association on Nov 20
Course begins Friday, November 20, 2009, 8:30 AM - 5:30 PM
Thursday, November 19, 2009, 5:30 - 7:30 PM
Member Price: $200
Non-Member Attorney Price: $250
Location: 14 Vesey Street, 2nd Floor Auditorium
Credits: 9 MCLE Credits
9 MCLE Credits: 4 Ethics, 1 Skills, 4 Professional Practice; Transitional and Non-transitional
Join us for a full day event featuring unparalled panels of experts from the bench, bar, museums, art galleries, auction houses, trade publications and on-line media, appraisers and insurance companies.
Agenda* (Panels are subject to change)
Panel I: Holocaust Restitution Claims: Courtrooms, ADR or a U.S. Restitution Commission?
Panel II: Proving Provenance of Artworks: Discovery and Investigative Tools
Panel III: Installation Art: Construction, Control and Caretaking in a Litigious World
Panel IV: The Artist's Estate and Foundation: Problems and Perspectives
Panel V: Biennials and Art Fairs: Law and Practice
Panel VI: Expert Appraisals: Practice and Ethics
Panel VII: Deviations from Trust Indentures, Cy Pres and Deaccessioning
SPECIAL COCKTAIL RECEPTION on Thursday Evening, November 19
Presentation of EMIPS Award to:
Ambassabor Stuart E. Eizenstat
Gagosian Gallery, 980 Madison Ave., at 77th Street
5:30 - 7:30 PM
RECEPTION SPONSOR: Gagosian Gallery
Award Chairs: Olivera Medenica; Carol Steinberg and Nancy Wolff
Faculty in formation: Christopher Alfieri, Christovich & Kearney, LLP, Director, Biennial, Inc./Prospect 1&2 New Orleans; Helen Allen, Pulse Art Fair, Affordable Art Fair; Hon. Phyllis Beck, Barnes Foundation; Judith Bresler, Withersworldwide; Hon. Nicholas Garaufis, U.S. Dist. Ct., EDNY; Hon. Arthur Gonzalez, U.S. Bankruptcy Ct., SDNY; Hon. Barbara Jaffe, Civil Court, NYC; Amb. J. Christian Kennedy, Special Envoy for Holocaust Issues, U.S. Dept. of State; Jules Kroll, Jemkroll Holdings LLC; Prof. Jennifer Kreder, Northern Kentucky University; Ralph Lerner, Withersworldwide; Christopher Marinello, The Art Loss Register; Judith Prowda, Professor, Sotheby’s Institute; Hon. Reena Raggi, U.S. Ct. of App., 2d Cir.; Donn Zaretsky, Deaccessioning Art Law Blog; Hon. Richard Wesley, US Ct. of Appeals, 2d Cir.
Program Co-Chairs: Hon Stephen G. Crane, JAMS; Raymond J. Dowd, Dunnington Bartholow & Miller LLP
Keynote Speaker: Assemblymember Daniel J. O'Donnell, 69th Assembly District; Standing Member, Arts and Tourism Committee
Thursday, October 01, 2009
"As explained below, I find that abstention is not warranted, there is no genuine dispute that Wally was, and remains, stolen, and the Museum's laches defense and constitutional objections are without merit. The trier of fact must,
however, determine whether Dr. Leopold, and hence the Museum, knew Wally was stolen when shipped into this country."
Sunday, September 27, 2009
Friday, September 25, 2009
The case arose when in 2008, Doss, Inc., the purchaser of a Marie Laurencin Portrait from Christie's tried to sell it through Sotheby's. Sotheby's researched the artwork and found that it had been looted by the Nazis from the well-known Paris art dealer Paul Rosenberg. Sotheby's informed Doss Inc. (the would-be seller) that the artwork was stolen.
Doss then sued Christie's for breach of warranty. The problem is that New York's U.C.C. Section 275 provides a four-year statute of limitations for breach of warranty (claim for breach of warranty must be commenced within four years of tender of delivery of the goods).
Once the four years runs, a seller of stolen goods is off the hook in New York, as far as New York's U.C.C. is concerned, unless some tolling principle, such as fraudulent concealment. New York is a buyer beware state. But it would certainly be surprising if Christie's didn't know what it was selling when it put the work up for auction in 1991.
Auction houses and museum have been peddling the fiction that Hitler's art looting was not "discovered" until the mid-1990's. But the Nurember trials covered these crimes on the front pages of the New York Times and such authors as Janet Flanner covered Nazi art looting activities in depth in an extraordinary three-part series in the New Yorker magazine in 1947. Museums and auction houses would prefer to forget about such works as David Roxan & Ken Wanstall's groundbreaking report based on the Art Looting Intelligence Unit's Reports - The Rape of Art: The Story of Hitler's Plunder of the Great Masterpieces of Europe (Cowan-Mc Gill New York 1964). Flanner's accounts of artworks being uncovered in salt mines together with gold teeth removed from Jewish corpses is a chilling reminder of how the Nazis intertwined looting and murder.
The truth is, museums, private owners and auction houses have been waiting for a couple of generations of Jews to die so that they can safely peddle and display the looted artworks held in their collections.
Christie's didn't know it was stolen in 1991 when they sold it? Horsefeathers!
Sunday, September 20, 2009
The legal question presented was whether the expropriation exception to sovereign immunity in Section 1605(a)(3) of the FSIA applied to a sovereign entity that was not alleged to have taken property in violation of international law.
Spain bought a collection from a Swiss-based Baron Thyssen-Bornemisza and started a museum based on the collection.
This is similar to the arrangement Austria has with the Leopold Museum. The Leopold's collection is now being researched at the insistence of the Jewish Community of Vienna, which held protests and roped off the entire Leopold Museum in yellow "crime scene" tape.
When you buy from the Swiss the type of art that Nazis liked to loot, you really ought to check the provenance. Shame on Spain. Let's hope they set up a commission to publicly investigate the collection and give back the things that have been stolen from murdered Jews.
Monday, September 07, 2009
The leading case is Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), involving a book on the Grateful Dead. In that case, images reduced and put on a timeline in a book about the Grateful Dead were held to be fair use, even though the publisher tried to license the works and was rejected.
But what about large color reproductions? A recent fair use case from the Eastern District of Pennsylvania by District Judge Bayleson, Warren Publishing v. Spurlock, 2009 WL 2412542, --- F. Supp.2d --- (August 4, 2009) tackles the issue in a thoughtful, thorough and monster-sized decision.
Basil Gogos illustrated cover art for monster movie magazines such as Creepy and Eerie. Spurlock wanted to write a biography of Gogos and show images of his poster art.
The decision goes into issues regarding the work-for-hire doctrine, the Copyright Act of 1909, the bankruptcy of the original publishers, battles of the experts, in all of the case's horrific details.
In the end, the use of full-color and large images of background art were found to be fair use in an artist's biography. The original magazines were about promoting Bela Lugosi and Dark Shadows, not Basil Gogos.
For those who claim that artists have been taken advantage of by greedy corporations who keep their out-of-print content under lockdown, this is a clear, resounding victory and a well-reasoned decision.
An important factor in the court's decision was the publisher's failure to exploit the coffee-table market for a perior of 22 years. In the age of Google, the culture of "use it or lose it" is taking hold.
The Copyright Wars proceed apace with a new folk devil to create a moral panic.
Sunday, September 06, 2009
If you want to know why your DVD player doesn't have a "record" button, Patry provides the best, most entertaining, and lively explanation I've ever seen.
Patry's erudition and lively writing style make for a brisk and entertaining read. His examples are interesting and compelling -and his discourses on metaphor are quite brilliant. Patry is at his best in cheerfully skewering corporate oligopolists who have successfully lobbied for laws that destroy technical innovation.
Patry plays Marc Antony to Jack Valenti's Caesar: Valenti was the head of the Motion Picture Association of America and a genius lobbyist. Valenti branded consumers as "pirates" and "thieves" for doing things like skipping commercials and mustered up populist outrage in Congress in order to grab cash and control over content for his oligopolist clients. Patry attacks these "folk devils" invented by Valenti and the "moral panics" he created and then cashed in on. Patry shows pretty convincingly that Hollywood and the RIAA have thoroughly misbehaved.
If you are interested in the debates over the past, present and future of copyright law, this is a terrific, unabashedly partisan book. Although Patry says we need to rethink copyright from the ground up as a privilege that is a creature of the legislature and a servant of the public good, I didn't find any concrete prescriptions for doing so. Patry is Senior Counsel to Google, but his book and the blog discussing his book have prominent disclaimers warning against attributing Patry's views to Google. But Patry's views are Google-friendly, to say the least and it would be pretty surprising if Google did not wholeheartedly embrace his views.
One concrete proposal that Patry supports is having the Obama Administration back a broadband initiative that would increase access and speed for consumers - essentially building a national online highway.
To bring home his point, Patry points to Korea and Japan and cites a study showing that "at this rate, it will take the United States more than 100 years to catch up with current Internet speeds in Japan".
This is after an entire book full of Patry blasting copyright owners for using dubious statistics, histrionic metaphors and "folk devils". Valenti would have liked Patry's conjuring this Asian menace - it's the same menace Valenti relied on.
Whether you agree or disagree with Patry, it's a thought-provoking book and likely to be influential with the U.S. judiciary. Despite the disclaimers, it's likely to be taken as a road map for lobbying Washington by technology companies currently shut out of lucrative markets by the content oligopolies.
Patry has created a blog to discuss his book found here. Hopefully this new blog will be a home to the lively and spirited debate that Patry is famous for.
Saturday, September 05, 2009
The Copyright Office has a useful tutorial for those who wish to file copyrights electronically. The tutorial is here and here. The Copyright Office's website www.copyright.gov has a number of free, downloadable publications explaining how to register copyrights, what qualifies as a copyrightable work, and how to answer many of the basic copyright questions one is likely to confront.
Electronic filing is a great advance. It still takes a long time to receive an actual copyright registration certificate. For impending litigation, a registration certificate can be expedited. This procedure is known as "special handling" and costs $685.
As a U.S. author, unless you've got a copyright registration certificate (or the Register of Copyrights has denied you one) you generally can't sue in federal court. You can register after an infringement, but there are big disadvantages for waiting until you've been ripped off.
Unless you register your copyrights early, you may not be entitled to "statutory damages" and attorneys fees. When a copyright owner has failed to timely register, it puts the owner at a great disadvantage in obtaining compensation for copyright infringements.
Registering copyrights, registering license agreements, and registering transactions involving copyrights is extremely important. The news is full of transactions gone bad because transactional attorneys did not seem to understand the meaning or scope of licensing agreements.
Sunday, August 30, 2009
Prof. Doug Lichtman has put together another excellent program at the IP Colloquium. This program interviews players in the case Shepard Fairey v. Associated Press (attorney Mark Lemley for Shepard Fairey and attorney Dale Cendali for the Associated Press). Ken Richieri, GC of the New York Times comes in with an interesting take on the controversy. I wrote about the case here.
The case is pending in the Southern District of New York before Judge Alvin Hellerstein. The latest news from the docket sheet (as of August 14, 2009) is that photographer Mannie Garcia is claiming ownership of the photograph, and both Fairey and Associated Press are counterclaiming against Garcia.
The image you see here is of Paul Newell, a candidate endorsed by the New York Times in his race against Speaker of the Assembly Sheldon Silver that took place on New York's Lower East Side.
Newell, deemed "the quintessential anti-establishment democrat" by the Times garnered a respectable 24% of the vote where the incumbent spent over $800,000 to keep his seat.
I think that the IP Colloquium perhaps underplayed the whole political aspect of the expression involved and the role that core political speech plays in our jurisprudence, at least for Fairey's activities up until the election. But the arguments are interesting and for those interested in copyright issues, political speech and artistic freedom, the case opens up a very tasty can of worms.
IP Colloquium has programs that you can listen to or download for free. Attorneys can receive free CLE credits by completing an online form after listening to the program.
Friday, August 28, 2009
Tennessee Judge Immunizes Germany From Nazi Art Looting Claims Finding "Commercial Exception" to Act of State Doctrine
In Westfield v. Federal Republic of Germany, 2009 WL 2356554 (M.D. Tenn. July 28, 2009), a federal judge dismissed a lawsuit against Germany on the grounds that Germany enjoyed soveriegn immunity for act of the Nazi regime in looting artworks from Jews that it systematically murdered.
The decision is remarkable in that it fails to cite any of the binding case law that goes precisely the other way. In Bernstein v. N.V. Nederlansche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375 (2d Cir. 1954), the U.S. stripped Germany of its immunity for actions of the Nazi regime in murdering and looting from Jews.
In Bernstein, the Second Circuit revisited an earlier opinion granting the Nazis sovereign immunity for their actions. The court wrote:
Following our decision, however, the State Department issued Press Release No. 296 on April 27, 1949, entitled: ‘Jurisdiction of United States Courts Re Suits for Identifiable Property Involved in Nazi Forced Transfers.’ The substance of this Release follows:
‘As a matter of general interest, the Department publishes herewith a copy of a letter of April 13, 1949 from Jack B. Tate, Acting Legal Advisor, Department of State, to the Attorneys for the plaintiff in Civil Action No. 31-555 in the United States District Court for the Southern District of New York.
‘The letter repeats this Government's opposition to forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or peoples subject to their controls; states that it is this Government's policy to undo the forced transfers and restitute identifiable property to the victims of Nazi persecution wrongfully deprived of such property; and sets forth that the policy of the Executive, with respect to claims asserted in the United States for restitution of such property, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.'
The letter from Mr. Tate is then quoted, pertinent parts of which follow:
‘1. This Government has consistently opposed the forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or people subject to their controls. * * *
‘3. The policy of the Executive, with respect to claims asserted in the United States for the restitution of identifiable property (or compensation in lieu thereof) lost through force, coercion, or duress as a result of Nazi persecution in German, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.'
In view of this supervening expression of Executive Policy, we amend our mandate in this case by striking out all restraints based on the inability of the court to pass on acts of officials in Germany during the period in question. See 173 F.2d at pages 75-76. This will permit the district court to accept the Release in evidence and conduct the trial of this case without regard to the restraint we previously placed upon it.
Ever since Bernstein, the exception to soveriegn immunity where the Executive branch has opened up the federal courts for business has been known as the Bernstein exception to the Act of State Doctrine.
The U.S. Supreme Court recently found Nazi art looting to be part of the "expropriation exception" to the Act of State Doctrine. I quote from Republic of Austria v. Altmann, 541 U.S. 677 (2004):
The Act itself grants federal courts jurisdiction over civil actions against foreign states, § 1330(a),FN12 and over diversity actions in which a foreign state is the plaintiff, § 1332(a)(4); it contains venue and removal provisions, §§ 1391(f), 1441(d); it prescribes the procedures for obtaining personal jurisdiction over a foreign state, § 1330(b); and it governs the extent to which a state's property may be subject to attachment or execution, §§ 1609-1611. Finally, the Act carves out certain exceptions to its general grant of immunity, including the expropriation exception on which respondent's complaint relies. See supra, at 2245-2246, and n. 5. These exceptions are central to the Act's functioning: “At the threshold of every action in a district court against a foreign state, ... the court must satisfy itself that one of the exceptions applies,” as “subject-matter jurisdiction in any such action depends” on that application. Verlinden, 461 U.S., at 493-494, 103 S.Ct. 1962.
FN12. The Act defines the term “foreign state” to include a state's political subdivisions, agencies, and instrumentalities. 28 U.S.C. § 1603(a).
The District Court agreed with respondent that the FSIA's expropriation exception covers petitioners' alleged wrongdoing, 142 F.Supp.2d, at 1202, and the Court of Appeals affirmed that holding, 317 F.3d, at 967-969, 974.
Since the court's decision does not even mention the expropriation exception, it is hard to tell whether this was alleged in the complaint or argued in the briefs. I will look into this, since the decision is so contrary to precedent.
The Nazis were tried by the U.S. and found to be a criminal conspiracy, not a legitimate government. In re Nurnberg, 6 F.R.D. 69, 121 (1946, 47).
The Tennessee court's decision is deeply troubling and clearly wrong.
(Eglon van der Neer's "Portrait of a Man and Woman In an Interior")
Thursday, August 27, 2009
Tuesday, August 25, 2009
Create Your Own Radio Station: In Victory For Webcasters, Second Circuit Finds Service Not Interactive
Monday, August 24, 2009
9th Circuit Strikes Down California Holocaust Statute of Limitations As Violative of Federal War Powers!
Sunday, August 23, 2009
I last wrote on the Renoir/Guino case decided by the Ninth Circuit creating perpetually unpublished works here. The defendants are now back in district court disagreeing with the Ninth Circuit's finding that the copyright is valid and pointing out that the Register of Copyrights might not have registered the work if she had been provided with accurate information on publication in the registration certificate.
If you care about the issue of artworks looted by the Nazis being concealed by the Austrians and the Swiss - and never returned to the heirs of their murdered Jewish owners, then you will find the video of interest.
According to 2006 Congressional testimony of AAMD President James Cuno, U.S. museums contain tens of thousands of artworks that were potentially looted by the Nazis that U.S. museums have failed to research. Since many families were wiped out entirely, there are no heirs to claim stolen Jewish assets in U.S. museums.
According to a recent statement by Amb. Stuart Eizenstat, 1% of Holocaust survivors die each month. 36% of them live at or below the poverty line.
U.S. museums promised to make all of their records relating to Holocaust-era assets public in 1999 and to put this information online to aid the Diaspora in tracing their heritage. This was at the Washington Conference on Holocaust-Era Assets.
Unfortunately, U.S. museums have failed to follow up on their promises. Each item in a museum, like, for example, the Museum of Modern Art, has a "confidential object file" The "confidential object file" is concealed from historians as a matter of routine. New York City taxpayers subsidize this concealment by giving tax breaks and grants to institutions like the MoMA.
If you visit the MoMA's website, you can click "Explore" and "Collection" and find "Provenance Research Project". In there, you will find 719 objects fitting the criteria of having entered the U.S. after 1932 but created before 1946. Numerous of these objects were stolen by the Nazis and never returned to their true owners.
Although there was a movement during the Clinton Administration to push U.S. museums to reveal information relating to European artworks entering the U.S. after 1933 but created before 1945, but this initiative was dropped like a hot potato once the Bush/Cheney administration came to power.
Unfortunately, Edgar Bronfman, who was a real leader in this area was replaced by art collector Ronald Lauder who has resisted disclosure of his art dealings.
Visiting the Jewish Museum in Berlin was an incredible experience. The building was designed by architect Daniel Libeskind in a manner designed to disturb and disrupt your expectations.
|Washington Conference Principles|
On Nazi-Confiscated Art
Released in connection with the Washington
Conference on Holocaust-Era Assets,
Washington, DC, December 3, 1998
In developing a consensus on non-binding principles to assist in resolving issues relating to Nazi-confiscated art, the Conference recognizes that among participating nations there are differing legal systems and that countries act within the context of their own laws.
I. Art that had been confiscated by the Nazis and not subsequently restituted should be identified.
II. Relevant records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives.
III. Resources and personnel should be made available to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently restituted.
IV. In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.
V. Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs.
VI. Efforts should be made to establish a central registry of such information.
VII. Pre-War owners and their heirs should be encouraged to come forward and make known their claims to art that was confiscated by the Nazis and not subsequently restituted.
VIII. If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case.
IX. If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, can not be identified, steps should be taken expeditiously to achieve a just and fair solution.
X. Commissions or other bodies established to identify art that was confiscated by the Nazis and to assist in addressing ownership issues should have a balanced membership.
XI. Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.
Saturday, August 22, 2009
The Supreme Court judge (in New York this is the trial level judge) tossed the case out on a pre-answer motion, finding that there was no privity between Wildenstein and Mandarin and that the appraisal contained non-actionable opinion.
Two dissenters (Justice Tom and Justice Nardelli) balked. Tom believed that the complaint stated a claim in equity for unjust enrichment. In a very well-reasoned dissent, Justice Nardelli found that the majority had made numerous factual findings unsupported by the record, which on a pre-answer motion is to be construed in favor of the plaintiff. Also Justice Nardelli found that fraudulent misrepresentation, negligent misrepresentation, third-party beneficiary (contract), and unjust enrichment were all well-pleaded claims.
When there are two dissenters at the Appellate Division, one may take an appeal to the New York Court of Appeals "as of right".
If art dealers can write bogus "appraisals" for works in which they have an ownership interest, it really taints the market and encourages fraud. Many art transactions are concluded through intermediaries for perfectly legitimate reasons. Justice Nardelli's dissent is compelling and appears to be a correct statement of the law.
Thursday, August 20, 2009
Monday, August 17, 2009
This local action follows Amb. Stuart Eizenstat's call for a U.S. Commission to assist descendants of Holocaust victims in determining title to artworks stolen by the Nazis and is a follow-up to this June's Prague Conference on Holocaust-Era Assets.
Pete Gleason's press release is here and his campaign website is www.pete2009.com. The Democratic Primary is September 15.
Last week, the Liz Benjamin of the Daily News reported here a scandal involving a charity on New York's Lower East Side involving the incumbent City Councilman using the charity's employees to collect signatures.
I recommend highly a Continuing Legal Education program that I helped to organize on art litigation and dispute resolution - you get 4 CLE credits for ethics and it is HIGHLY entertaining. Many attendees told me that it was the best CLE program they had ever attended.
To purchase the DVD, visit www.nycla.org
Credits: 8.5 MCLE Credits8.5 MCLE Credits: 4 Ethics; 1 Skills; 3.5 Professional Practice; Non-Transitional
Faculty: Matthew F. Bogdanos, Manhattan District Attorney’s Office; Judith A. Bresler, Withers Bergman; John J. Byrne, Byrne Goldenberg & Hamilton, Washington, D.C.; John R. Cahill, Lynn & Cahill; Hon. Miriam Goldman Cedarbaum, US Dist. Ct., SDNY; Sharon H. Cott, Metropolitan Museum of Art; Andrea Crane, Gagosian Gallery; Hon. Stephen G. Crane, JAMS; Raymond J. Dowd, Dunnington Bartholow & Miller; Hon. Laura E. Drager, New York State Supreme Court; Monica S. Dugot, Christie’s; David J. Eiseman, Golenbock, Eiseman, Assor & Bell; Robert J. Feinstein, Pachulski, Stang, Ziehl & Jones; Edward W. Hayes, Edward W. Hayes; Hon. Barbara Jaffe, Civil Court of NYC; Lawrence M. Kaye, Herrick Feinstein LLP; Thomas R. Kline, Andrews Kurth, Washington, D.C; John B. Koegel, Koegel Group LLP; Hon. John G. Koeltl, US Dist. Ct., SDNY; Jules B. Kroll, Jemkroll Holdings; Ralph E. Lerner, Withers Bergman; Dean R. Nicyper, Fleming, Zulack, Williamson, Zauderer; Anke Nordemann, Boehmert & Boehmert, Berlin, Germany; William G. Pearlstein, Golenbock, Eiseman, Assor & Bell; Lindsay Pollock, Art & Auction Magazine; Jan Prasens, Sotheby’s; Hon. Eve M. Preminger, Kramer, Levin, Naftalis & Frankel; Hon. Loretta A. Preska, US Dist. Ct., SDNY; Dr. Lucille Roussin, Cardozo Law; Jay G. Safer, Locke, Lord, Bissell & Liddell; Ronald D. Spencer, Carter, Ledyard & Milburn; Howard Spiegler, Herrick Feinstein; Peter R. Stern, McLaughlin & Stern; Hon. Joseph P. Sullivan (Ret.) Holland & Knight; Nancy E. Wolff, Cowan, DeBaets
Description: One of our finest course offerings from NYCLA-CLE, brings together an unparalleled panel of experts from the bench, bar, museums, art galleries, auction houses, trade publications, appraisers, and insurance companies to discuss the latest legal issues affecting the art community. Specific panels presented included:
Art Litigation and Dispute Resolution: Litigation, Arbitration or Mediation—Considerations for Practitioners Learn how to choose between and among litigation, arbitration and mediation when confronted with disputes concerning pieces of art. Some of the issues discussed by the panel of experts include the advantages and disadvantages of litigation, arbitration and mediation in the art context; how arbitration and mediation can be used more effectively in art disputes; and ways to make mediation more useful in art disputes.
Commencing an Action in Art Litigation: Replevin, Quiet Title, Slander of Title, Injunctive Relief and Statutes of Limitation In art law cases, the use of provisional remedies is neither rare nor usual. Typically provisional relief is sought to prevent a sale or other transfer of art – often because it has surfaced publically for the first time in years. A discussion of the forms of provisional remedies available is provided, as well as illustrative cases involving art law.
Art Lending, Bailments, Consignments, UCC, Liens and Security Interests While Article 2 of the U.C.C. governs an array of issues arising in art transactions, many states, including New York, doubting the sufficiency of the U.C.C. alone to safeguard art buyers, have enacted legislation that in some cases overrides the U.C.C. Learn about warranties, both from a review of U.C.C. principles and legislative and judicial expansions of the protections.
Contemporary Art, Copyright and Moral Rights The United States has reluctantly recognized the moral rights of artists to protect their reputations from harm through adverse treatment of their works of art or misuse of their identity as artists. Non-economic and personal to the artist, these rights exist independently of an artist’s copyright in or ownership of his or her own creation.
Dealing with Artists Estates and Foundations, Dealers, Auction Houses and Museums Experts discuss issues relating to how to deal with artists’ estates and foundations, art dealers, auction houses, museums and the press. Hear how the estate of Andy Warhol was handled, including litigation concerning attorney’s fees; learn about the issues surrounding how a private gallery works with attorneys to avoid and resolve disputes; discover how museums handle dispute resolutions; and find out how the press covers breaking legal stories in the art world.
Art Litigation and Dispute Resolution: Antiquities, Authentication, Provenance, Insurance, Damages, Appraisals and Valuation; Foreign Law and Choice of Law
Buying and selling ancient art requires the prudent purchaser to research the origin and history of ownership of an object and to evaluate the available information in the context of the legal framework discussed by this panel, for potential penalties for the unwitting purchaser of smuggled objects include civil forfeiture and for those who knew or in retrospect “consciously avoided” full knowledge, jail.
Program Co-Chairs: Hon Stephen G. Crane, JAMSRaymond J. Dowd, Dunnington Bartholow & Miller LLPAll Programs include: (1) Affirmation, (1) DVD/CD packet and (1) set of Written Materials TITLE AVAILABLE IN DVD FORMAT ONLY.
Sunday, August 16, 2009
Image via Wikipedia
Quantum Systems Integrators, Inc. v. Sprint Nextel Corp., 2009 WL 1931196 (4th Cir. July 7, 2009) deals with a company changing software vendors. In this case, Sprint stopped using Quantum's software. After entering into a settlement agreement, a number of Sprint's computers inadvertently were left with copies of Quantum's software on them. When Sprint employees rebooted the computers, Quantum's software was automatically loaded into the RAM. Sprint employees didn't realize that the Quantum software was being loaded and didn't actually use it. Quantum received messages from the computer showing that its software was being accessed.
After a jury trial, the district court awarded $69,000 for eight infringing computers and almost $400,000 in attorneys fees. For each computer, the jury awarded the license fee ($8,700 for each computer). The Fourth Circuit found that the district court properly rejected Quantum's attempt to obtain a portion of Sprint's profits, holding that Quantum had failed to sustain its burden of proof that any of Sprint's profits were "reasonably related to" the automatically generated RAM copies. The court also rejected Sprint's argument that it did not engage in "volitional" copying, finding that the RAM copies satisfied the fixation requirement and that since the computers were Sprint's the case was not analogous to a passive ISP or third party that does not have control over what passes through its system.
The Fourth Circuit upheld the award of actual damages but remanded for a determination of the reasonableness of the attorneys fees, noting Quantum's "minimal success" and the apparently disproportionate amount of attorneys fees awarded, in line with its case law applying Fogerty v. Fantasy Inc., 510 U.S. 517 (1994).
Saturday, August 15, 2009
German and Other Foreign Heirs in New York: Standing To Sue Clarified in Andrew Lloyd Webber Picasso Case
Monday, August 10, 2009
Check out http://www.pbs.org/newshour/art/blog/2009/07/conversation-stuart-eizenstat.html
Sunday, August 09, 2009
Nazi Looted Art at Oberlin College and Other U.S. Museums: Prague Conference on Holocaust-Era Assets
In late June I was invited to speak on a panel of legal experts on artwork looted by the Nazis. My topic was legal obstacles to the recovery of stolen artworks.
The image you see here is of an artwork by the artist Egon Schiele called Girl with Black Hair. Every major Schiele expert in the world - Jane Kallir, Eberhard Kornfeld and Rudolph Leopold - has said that this artwork came from Fritz Grunbaum's collection. Yet Oberlin College refuses to return it - or even to share their research or conclusions about where they believe it came from. Oberlin's website shows that the work mysteriously surfaced in Switzerland in 1956 - and stops there.
U.S. museums and liberal arts institutions concealing the origins of their artworks is one of the biggest obstacles to researchers being able to restitute artworks to the Jews and other Nazi persecutees from whom they were stolen. As Holocaust victims and their descendants die, U.S. museums simply wait, knowing that they have stolen artworks in their collections. In his 2006 testimony to Congress, AAMD Director James Cuno estimated the number of potentially Nazi-looted works in U.S. museums at "tens of thousands".
It is astonishing that U.S. museums can engage in this Holocaust denial and feel no backlash. Shame on Oberlin College. Its Dean should be tossed out on his ear.
Amb. Stuart Eizenstat supports a U.S. Art Restitution Commission. Good for him, and not a moment too soon.
You can find my full speech in Prague at the link below.
Disclosure: I represent the heirs of Fritz Grunbaum, a Jewish cabaret performer who was murdered by the Nazis at Auschwitz.
Sunday, August 02, 2009
At issue is the federal "discovery" rule for accrual of an action versus the "injury" rule. I discuss this distinction in Chapter 5 of my Copyright Litigation Handbook (West 4th Ed. 2009). I was pleased to see that the Third Circuit discussed the cases that I had cited on this conflict (by the way, this fourth edition of Copyright Litigation Handbook just shipped last week).
The question is whether a cause of action for copyright infringement "accrues" when the infringement takes place (the "injury" rule) or whether it accrues when the victim, exercising reasonable diligence, discovers the infringement (the "discovery" rule). Most circuits have ruled that the federal discovery rule applies. But some district courts in the Second Circuit, relying on a powerfully-reasoned decision by Judge Kaplan in Auscape Intern. v. National Geographic Soc., 409 F. Supp.2d 235 (S.D.N.Y. 2004), have applied the "injury" rule.
To illustrate: under the injury rule, a court would either dismiss or grant summary judgment on a pleading that alleged infringements over three years prior to the action being filed.
Under the discovery rule, a court would permit equitable defenses such as tolling for fraudulent concealment and factfinding to determine whether a plaintiff could have, did, or should have discovered infringements over three years old prior to filing suit.
These rules relate to "accrual" of the action. The statute of limitations is always three years under 17 U.S.C. 507(b).
Graham v. Haughey determined that the "discovery" rule applies and that the plaintiff could sue on infringements that occurred over three years prior to the commencement of the action. Graham v. Haughey digs into the legislative history and consists of a point-by-point refutation of the Auscape decision. It also has an excellent discussion of issues relating to burdens of proof on damages, the nexus neccessary for damages to be attributable to copyright infringement, and the role of a judge in reviewing a jury verdict of copyright infringement.
Graham's facts are interesting because the infringement was committed by an ex-employee. The new employee used the infringing documents to generate millions in profits, but the publications were in proposals kept confidential by both the infringer and the recipient of the proposals for many years. After these secret transactions were finally revealed, the copyright owner sued and obtained a jury verdict in excess of $16 million.
This case involved an ex-employee breaching a contract not to retain or use copyrighted materials, so is an important cautionary tale for both new employers who don't want millions in liabilities and old employers who wish to protect their materials.
This is the odd case where a "publication" was not "public".
The Third Circuit remanded on apportionment issues.
Graham's counsel David J. Wolfsohn of Philadelphia's Woodcock Washburn (who was successful on the appeal and is pictured above) informs me that the matter is in abeyance pending Haughey's cert petition (due Sept 3). Haughey was represented by Floyd Abrams of Cahill Gordon & Reindell.