Law Prof: American Museums Have Violated Washington Principles on Nazi-Looted Art

Two Nudes (Lovers)

1913

Kokoschka, Oskar, Austrian, 1886–1980

163.2 x 97.5 cm (64 1/4 x 38 3/8 in.)

Boston Museum of Fine Arts

Professor Jennifer Anglim Kreder compiled a chart of Holocaust-era art cases decided in U.S. federal courts since 2004.  The results are bleak, and show that American museums have systematically violated the Washington Principles on Nazi-Confiscated Art.

I wrote about the excellent panel Prof. Kreder organized in Washington DC on a US Commission on Nazi-Looted Art here.

New! Copyright Law for the General Practitioner Update - CLE on the Web Available on Lawlines

New copyright law update available through Lawlines here.

Raymond Dowd, Dunnington, Bartholow & Miller, LLP

Joseph Peterson, Kilpatrick Stockton LLP
David J. Wolfsohn, Woodcock Washburn

Program Chair:

Raymond Dowd, Dunnington, Bartholow & Miller, LLP

Description:

Learn from experienced litigators about the basics of copyright law and practice, including assignments, licensing, recording security interests, dealing with the Copyright Office, pre-litigation due diligence and litigation.

Lecturer Bios
David Wolfsohn, a trial lawyer, has tried numerous copyright, patent, trademark, unfair competition, and trade secret cases. On behalf of plaintiffs, he has obtained multimillion dollar verdicts and settlements, including a $19 million jury verdict in June 2006 in a copyright case (The Graham Company v. US! MidAtlantic) and a $5.8 million settlement of a trade secret case.


After graduating cum laude and order of the coif from the University of Chicago Law School in 1988, David served as a law clerk to the Honorable Walter K. Stapleton of the United States Court of Appeals for the Third Circuit. He then worked at a Philadelphia litigation firm for 16 years, handling commercial, governmental, and intellectual property disputes. David joined Woodcock Washburn in 2005, where he litigates intellectual property cases.

David was also lead counsel (pro bono) in the landmark case Nixon v. Commonwealth, in which the Pennsylvania Supreme Court struck down as unconstitutional a Pennsylvania statute barring persons convicted of minor crimes decades ago from all jobs in health care related fields. For this representation, David received the Equal Justice Award in 2004 from Community Legal Services.

David frequently lectures about trial tactics and intellectual property matters. A former concert pianist, David sits on the board of Astral Artistic Services, an organization dedicated to advancing the careers of young concert musicians. For four years, David was the solicitor for the Borough of Swarthmore, and now serves on the Swarthmore Borough Authority.

Joseph Petersen is a partner in the Intellectual Property group in the New York office of Kilpatrick Stockton LLP. Mr. Petersen has extensive experience in complex commercial litigation with particular expertise in intellectual property disputes such as copyright infringement, trademark infringement, trade secrets, litigation, patent infringement, and domain name disputes. He also regularly counsels clients on the protection, enforcement and licensing of their intellectual property assets.
Selected Experience
• Successfully represented the plaintiff in Yurman Design Inc. v. Diamonds and Time, 169 F. Supp. 2d 181 (S,D.NY. 2001) (granting plaintiff's motion for preliminary injunction in trademark infringement litigation).
• Represented leading manufacturer of ant-theft devices in successful motion for preliminary injunction in action pending before the United States District Court for the Southern District of Florida.
• Obtained temporary restraining order restraining defendant's enforcement of foreign injunction enjoining client from importing merchandise to defendant’s competitor during peak of holiday selling season.
• Represented client in successful motion to dismiss antitrust claims brought against a leading jewelry firm
• Represented leading cable television network in opposition proceedings before the Trademark Trial and Appeal Board.

Background
Admitted to practice before the U.S. Court of Appeals, Second Circuit; U.S. District Court for the Southern and Eastern Districts of New York; U.S. District Court, District or Connecticut; New York and Connecticut state courts.

Education
Law: Vanderbilt University, J.D. (1998)
Undergraduate: State University of New York, B.S., summa cum/aude (1991)
Bar Admission(s)

New York; Connecticut, U.S. Court of Appeals for the Second Circuit; Eastern District of New York; Southern District of New York

Raymond Dowd is a member of DBM's intellectual property, corporate, litigation and arbitration practice groups. He has broad commercial litigation experience in both federal and state courts, and has represented copyright, trademark and domain name owners, broadcasters, distributors and content providers in transactions and litigation, representing both plaintiffs and defendants. He has conducted numerous bench and jury trials and arbitrations. He has obtained, enforced, and collected judgments including conducting seizures. In addition, he has provided corporate and transactional representation entrepreneurial companies from the incorporation and startup phase through significant growth. Mr. Dowd represents collectors and dealers of fine art and has litigated disputes involving authenticity, forgery, ownership and provenance. Mr. Dowd regularly speaks to trade associations on copyright, fine art, trademark and litigation issues, and participates in organizing continuing legal education programs.

Memberships and Affiliations: Copyright Society of the U.S.A.; New York State Bar Association; Commercial and Federal Litigation Section; Intellectual Property law Section; President, Southern District of New York State Chapter of the Federal Bar Association (2006-2008); Federal Bar Association, Vice President for the Second Circuit (2008 - ); New York County Lawyers' Association; Board of Directors (2003 - 2006); Co-Chair, Entertainment Media, Intellectual Property and Sports Law Section (2000 - 2003); Continuing Legal Education (2003 - 2008); Committee on Committees ( 2003 - 2007).

Publications: Copyright Litigation Handbook, (West 3d Ed. 2008); former columnist, New York Law Journal; Copyright Litigation Blog. Member, Editorial Board, The Federal Lawyer (2007 - ).

Bar Admissions: New York (1993); U.S. District Court for the Southern and Eastern Districts of New York (1994); Northern U.S. Court of Appeals for the Second Circuit (1998);U.S. Supreme Court (2000); United States District Court for the Northern District of New York (2000); United States Tax Court (2007)

Education: Manhattan College (B.A. 1986); Fordham University School of Law (J.D. 1991)
Languages: French, Italian

Dutch Return Corot Painting Looted By Nazis From a Jewish Banker

Camille Corot - Jeune femme a la fontaine

Dutch restitute a Corot looted by the Nazis from the Jewish banker Georg Behrens, by Catherine Hickley on Bloomberg here.

Art Litigation: American Association of Museums Should Be Prosecuted For Concealing Stolen Property

MoMA's Glenn Lowry - Asserting Statutes of Limitations Against Heirs of Nazi Persecutees and Getting Richly Compensated For It

On Friday, I attended a panel on the U.S. State Department's proposal to set up a U.S. Commission to deal with the problem of Nazi-looted art in U.S. museum collections.   More on the panel, Wrestling the Dead Hand of History organized by Prof. Jennifer Kreder here.

Amb. Stuart Eizenstat - Expressing Outrage

The atmosphere was one of unanimous outrage over the misbehavior of U.S. museums and their lack of adherence to the Washington Principles on Nazi-Confiscated Art.  U.S. museums have taken to suing heirs of victims of Nazi persecution to avoid discovery and litigation "on the merits".   U.S. museums assert laches and statute of limitations defenses, knowing that it will damage international efforts to obtain recoveries of artworks from museum collections around the world.  If the U.S. is not going to support Jewish heirs, then who will?

The Jewish Claims Conference and Ronald Lauder's Commission for Art Recovery have asked U.S. museums to renounce the use of "technical" legal defenses such as laches and statutes of limitations as being unethical.   According to Lauder's lawyer Charles Goldstein, who signed the letter, the AAM and AAMD have not even bothered to respond to the request.   This is not the usual museum practice in dealing with a billionaire's lawyer.

In the postwar era, U.S. museums acquired tens of thousands of potentially-looted artworks. They've given virtually none of it back, have not properly researched their collections, and sit back hoping that the heirs of an exterminated population will never figure it out.   According to the museums, it is the job of the people who were murdered to finance and assert claims, after which, museums will decide whether or not to give the work back.

Museums claim that no one had any idea about the Holocaust when they acquired these artworks from the 1940's until today, often as donations, almost always without paperwork.   Since the severe Nazi persecution of Jews and the spoliation of their property was on the front page of every newspaper in the world starting in March 1933, the museums are engaging in a particularly pernicious form of Holocaust denial.

The custom and practice in the art world has always been to get documentation of the artwork's prior ownership and authenticity.  If you didn't get the paperwork, you were taking a risk that the property was stolen.   This practice has not changed, yet museums falsely claim that this is a recent development.  Wealthy Americans who bought European art at bargain prices without paperwork in the '40's, '50's and 60's knew darned well that they were probably buying stolen art.  Museum people always knew of the problem and were specifically and repeatedly warned in writing by the U.S. State Department in the 1940's and 1950's against acquiring artworks lacking paperwork.  Receiving stolen property has alway been a crime.


18 U.S.C. § 662 : US Code - Section 662: Receiving stolen property within special maritime and territorial jurisdiction

Whoever, within the special maritime and territorial jurisdiction of the United States, buys, receives, or conceals any money, goods, bank notes, or other thing which may be the subject of larceny, which has been feloniously taken, stolen, or embezzled, from any other person, knowing the same to have been so taken, stolen, or embezzled, shall be fined under this title or imprisoned not more than three years, or both; but if the amount or value of thing so taken, stolen or embezzled does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

(Italics supplied).

U.S. museums that refuse to disclose the documents necessary to trace the true owners of artworks in their collections should be prosecuted and their directors jailed.

Alfred Flechtheim - U.S. Museums Will Not Reveal Provenance Documents Relating To His 1933 Inventory

Image Jacob Hilsdorf 1910 courtesy Wikipedia

U.S. museums have it backwards and should be trying to figure out whose stolen property they are holding.  It was heartwarming to hear Goldstein affirm that museums do not have a fiduciary duty to litigate all claims and defenses relating to the stolen art in their collections.

When will the AAM and AAMD respond?   And without Robert Morgenthau on the scene, who will keep the museums honest?

Art Litigation - Museums are morally obligated to return Nazi-looted art, says expert

When hell freezes over ...

Museums are morally obligated to return Nazi-looted art, says expert Art & Architecture Deutsche Welle 25.03.2010

Join Me At A Cocktail Party Friday April 23: Benefit for Puppetmaking and Cleaning Up the Hudson River

Photo David Chmura

Hudson River Pageant Benefit

Type: Causes - Fundraiser
Date: Friday, April 23, 2010
Time: 7:00pm - 10:00pm
Location: ACA Galleries
Street: 529 West 20th St. 5th Fl, Btwn 10th Ave and West St.
City/Town: New York, NY

DescriptionSupporting Earth Celebrations' Hudson River Pageant Engaging Youth and Community to Restore the Hudson River and Address Climate Change in NYC.

Friday, April 23rd, 2010
Cocktail Party

7pm-10pm

Includes Open Bar with Wine by Premier Cru Wine Merchants

Hor D'oervres

Light Dinner Fare

Spectacular Costumed Characters

Silent Auction

Festive Attire

Featured Performances by: Amanda Selwyn Dance Theatre, Jules Cazedessus - Original Songs, Among Other Great Artists and Performers

CO- CHAIRS

Dorian & Je!rey Bergen and Joel Bluestein

BENEFIT COMMITTEE

Nadia Amara & Edward Tobin, Nina & Peder Anker, Eric Baum, Phoebe Bernard & reg Fukutomi, Valerie Block, Philippe Buhannic & Katherine Haimo, Jules Cazedessus, Ray Dowd , Katherine Freygang, Jan Hanvik, Marianne Hyde, Richard Jordan, Iva Kaufman, Meg & Steve Kayman, Mary Lapides, Hans Li, Genevieve Maquinay Deseglise, Emmy McIntyre & Brett Peiser, Sara Oppenheim & Al Boland, Mark Pepper & Regula Wetli, Gwynne Rivers, Georges Romano, Bruce Rosenthal, Marc Seago, Martha Shaw, Bob Townley, Wendy Wheeler Smith, Dr. Iven & Pamela Young

ARTISTS COMMITTEE

Michele Brody, Alice Farley, Jon Fields, Julie Goodman, Becky Hubbert, David Hykes, Louda Larrain, Janet Morgan, Lucrecia Novoa, Inge Ray, Johanna Schwarzbeck, Kristine Shook, Pavla Uppal, Drew Vanderburg, Rick Vazquez, Izaskun Zabala

◆

All proceeds benefit Earth Celebrations' Hudson River Pageant: Art & Ecology Project, an educational project engaging youth and community to restore the Hudson River and address climate change in New York City. Earth Celebrations is a non-profit organization dedicated to fostering ecological awareness through the arts. The project engages participants through a series of workshops from March through May, creating spectacular puppets and costumes for the Hudson River Pageant. The culminating pageant is an ecological performance art event featuring a parade highlighting the native river species and habitats, with featured
performances at the various piers and sites along the route in the downtown portion of the

Hudson River Park on Saturday, May 22, 2010, 1-6pm.
Felicia Young - Founder/Executive Director
Please RSVP by Friday, April 9
Benefit Party: $100 per ticket
(212) 777-7969 or mail@earthcelebrations.com

For online payment visit:
earthcelebrations.com/river-restoration/hudson-river-pageant-bene"t/
For more information view our website:
http://www.earthcelebrations.com/

MAKE CHECKS PAYABLE TO EARTH CELEBRATIONS: 20 EAST 9TH STREET #16E, NEW YORK, NY 10003

ALL DONATIONS ARE TAX DEDUCTIBLE TO THE FULL EXTENT OF THE LAW.

April 16 2010 Art Litigation - Nazi Art Looting - Following the Trail To Egon Schiele's Dead City

Egon Schiele's Dead City III (1911)

April 16, 2010 lecture at Gratz College - more information:  www.gratzcollege.edu/cle

Full brochure here

Program description:

Following the Trail to Dead City

Raymond J. Dowd, Esquire
1:00 pm – 4:30 pm

This course presents the intriguing story of Egon Schiele’s painting, Dead City, after it was stolen by the Nazis and legal efforts to bring it back into the Grunbaum family.

Mr. Dowd will discuss how Fritz Grunbaum’s art collection surfaced in Switzerland in 1956 under disputed
circumstances and was later found in the Leopold and Albertina museums in Austria. In 1998, District Attorney Robert Morgenthau seized Dead City (along with Portrait of Wally) at the Museum of Modern Art in New York City and unleashed an international debate over what countries should be doing to return art to Jewish heirs. Mr. Dowd will underscore the role of the Swiss in laundering Nazi looted art; the response of the Austrian government, which has been somewhat less than cooperative; and the new commission the U.S. may establish to assist Holocaust victims and their heirs. Mr. Dowd has spoken on this topic at the Jewish Museum in Berlin and at Yad Vashem in Jerusalem. A terrific companion to last year’s popular course on “Reclaiming Nazi Looted Art.”

Three (3) substantive credits: $100

Criminal Copyright Infringement: Rabidly Neurotic Music "Pirate" Acquitted

I recently posted about the use of the term "music piracy" in a criminal copyright infringement proceeding here.

The Tech Dirt Blog reports that the defendant Adil Cassim was acquitted by the jury and joins in the debate about the term "music piracy".

Cassim was allegedly part of "Rabid Neurosis" - group that allegedly ripped sound recordings prerelease.  More from Billboard.biz here.

Ray Dowd as Local Counsel in the Second Circuit, Southern District of New York and New State Courts

RAYMOND J. DOWD is a partner in Dunnington Bartholow & Miller LLP, a New York firm founded in 1921.  He is part of Dunnington's corporate, intellectual property, litigation and arbitration and art law practice groups. He has broad corporate counsel and commercial litigation experience as first chair in federal and state trial and appellate courts.


Corporate counseling includes corporate and transactional work for entrepreneurial companies including international licensing. Trademark counseling includes registration, policing and enforcing rights. Counseling art owners and dealers includes transactional representation, UCC filings, tracking and recovering stolen art, handling disputes involving title, provenance, authenticity and theft.

Dispute resolution, litigation and arbitration includes corporate and partnership disputes, contract disputes, copyright, trademark, domain name , licensing, and rights of publicity, conducting bench and jury trials, arbitration, administrative proceedings, emergency applications for injunctive relief, quashing subpoenas, obtaining, enforcing, and collecting judgments.

Trust and estates matters include resolving business succession issues, handling contested probate proceedings through trial, and disputes involving heirship and decedents' estates.

International practice includes licensing deals in Latin America and Russia, litigations in Canada, France and Switzerland, pursuing discovery through letters rogatory, obtaining service of process in foreign countries, obtaining and challenging foreign expert and foreign legal opinions including cross-examination at trial.

Mr. Dowd is a Co-Founder and Co-Chairman of the Art Litigation and Dispute Resolution Institute at New York County Lawyers' Association together with the Hon. Stephen G. Crane.

AFFILIATIONS: Federal Bar Association - Vice President for the Second Circuit (2008-present), Editorial Board, The Federal Lawyer Magazine, President of Southern District of New York Chapter (2006-2008); Copyright Society of the U.S.A.; New York State Bar Association - Commercial and Federal Litigation Section, Intellectual Property Law Section; New York County Lawyers' Association - Board of Directors (2003 - 2006).

PUBLICATIONS: Copyright Litigation Handbook (West 4th Ed. 2009) ; Copyright Litigation Blog.

EDUCATION: Manhattan College (B.A. cum laude International Studies 1986); Fordham University School of Law (J.D. 1991), Articles Editor, Fordham International Law Journal.

LANGUAGES: French and Italian. Experienced litigating controversies involving German-language documents.

$20 Million Copyright Infringement Jury Award Upheld

Kudos to David Wolfsohn at Woodcock Washburn in Philadelphia - on remand from the 3rd Circuit, the District Court upheld his $20 million copyright infringement judgment.  The case involved an employee who filched sales materials from an insurance company and used the materials secretly to poach clients for years.  Wolfsohn got damages for infringements reaching much farther back than the three years provided in 17 USC 507.   Plaintiffs whose unregistered copyrights were infringed are entitled only to actual damages and profits under 17 USD 504.

For the March 19, 20101 decision, click on the link below.

http://www.scribd.com/doc/28814393/Graham-v-Haughey-03-19-2010-20-Million-Copyright-Infringement-Jury-Award-Upheld

I reprint my post of August 2, 2009 below on the Graham v. Haughey case.

The Federal "Discovery" Rule: Can you sue for infringements occuring more than three years ago?
In Graham v. Haughey, --- F.3d ---, 2009 WL 1564223 (3d Cir. June 5, 2009), the Third Circuit considered the question of whether a victim of copyright infringement may sue for infringements that occurred over three years prior to the commencement of the lawsuit.
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.

Nazi Art Looting: Egon Schiele's Dead City Tomorrow Night 3/24 At Sotheby's Institute NYC

Egon Schiele - Dead City III 1911

LAST CHANCE THE EVENT IS SELLING OUT

NYSBASections


Entertainment, Arts & Sports and Law EASL Section
Events
Section Publications
http://www.nysba.org/

Egon Schiele's Dead City: Current Issues In Nazi Art Looting and Recovery

March 24, 2010
6:00 to 8:00 p.m.
Sotheby's Institute of Art
570 Lexington Ave., NYC

1.5 MCLE credits in Professional Practice
Register online > www.nysba.org/deadcity

SEATING IS LIMITED PLEASE REGISTER EARLY

Speaker:
Raymond Dowd, Esq.
Dunnington, Bartholow & Miller LLP
Sponsored by the Entertainment, Arts & Sports Law Section's Committee on Fine Arts

Program Description:

In 1998, Manhattan District Attorney Robert Morgenthau seized Egon Schiele's Dead City and Portrait of Wally at the Museum of Modern Art, creating a scandal that changed the legal landscape of Europe and the United States for victims of Nazi persecution and their survivors. Ray Dowd represents the heirs of Fritz Grunbaum, a Jewish cabaret performer murdered in the Dachau Concentration Camp. Fritz's wife Lily died in the Minsk Death Camp. Grunbaum's art collection surfaced in Switzerland in 1956 under disputed circumstances, and in the first Holocaust-era art recovery trial in U.S. history, Bakalar v. Vavra, the District Court found that passing the artwork through Switzerland gave it clean title. The case is now on appeal to the Second Circuit. This presentation will cover the legal and evidentiary obstacles to litigating Holocaust-era expropriation and provide legal practitioners with basic tools to assemble evidence and prove Nazi property looting.

Pricing:

$25.00 for Members

$35.00 for non-members

$15.00 for students

For more information contact: Carolyn Clayton at 518-487-5596 or cclayton@nysba.org

Register online > www.nysba.org/deadcity

Copyright Office: Copyright Royalty Judges Have Subpoena Power Over Non-Witnesses

Copyright Office issued an opinion on a novel question of law, published in Federal Register here.  Copyright Royalty Judges have the power to issue subpoenas to non-participants in proceedings.

Ninth Circuit to Offer Remote Live Viewing of Cassirer v. Kingdom of Spain Case

Case update inspired by Clancco.

Cassirer v. Kingdom of Spain is an incredibly important Nazi art looting case proceeding before the Ninth Circuit Court of Appeals.  Museums around the world, including the U.S., have been propagating the myth that millions of Jews suddenly voluntarily decided to give away or sell all of their earthly possessions, including artworks for bargain basement prices, pay all of the money to the Nazi regime and flee Nazi persecution because they were simply exercising free will in a free marketplace. 

The museums, often run by the grandchildren of the people who avoided income taxation by donating the stolen works to the museums, now claim they didn't have any idea that this was going on (even this was all reported on the front pages of the NY Times).  Unfortunately, U.S. courts tend to buy the argument that museums ought to keep all of these pretty pictures.  Apparently, there is a sentiment that showing stolen artworks to children while concealing the provenance of the artworks has a salutory effect on America's youth.

The Cassirer case seeks to impose a constructive trust.

Paul Cassirer

http://www.ernst-barlach.de/vita/PaulCassirer.jpg

Bio on Wikipedia here

Camille Pissarro - Rue de St. Honore apres-midi, effet de pluie

Excerpt of Cassirer v. Kingdom of Spain and image from the IFAR website

http://www.ifar.org/case_summary.php?docid=1184185695

Claude Cassirer’s grandmother inherited the Pissarro, Rue de St. Honoré après-midi, effet de pluie, from her husband, whose father had purchased the work from a Parisian dealer. Mrs. Cassirer was forced to sell the work in 1939 in exchange for passage out of Germany. The work’s whereabouts remained unknown for many years thereafter. In 1976, Hahn sold the Pissarro to Baron Hans Heinrich Thyssen, who donated it to the Thyssen Collection, where it remains today. It is unclear how Hahn acquired the work. Claude Cassirer, Mrs. Cassirer’s only surviving relative, became aware of the work’s location in the Thyssen Collection “in the last several years.”

New development from Sergio Munoz Sarmiento at Clancco:

Ninth Circuit to Offer Remote Live Viewing of Cassirer v. Kingdom of Spain Case

International Law: Wrestling the Dead Hand of History - Panel on Nazi Looted Art

Alfred Flechtheim portrait 1910 by Jacob Hilsdorf

Courtesy Wikipedia

Professor Jen Kreder announced on the Intlawgrrls blog her panel this coming Friday March 26 in Washington DC at the American Society of International Law.

The panel, called "Wrestling the Dead Hand of History: Perspectives on a Proposed State Department Commission on Nazi Looted Art," and features Jen Kreder with Ambassadors Kennedy and Eizenstat, Dr. Lucille A. Roussin (left) of Cardozo School of Law, and New York-based attorney Charles A. Goldstein.

I support the US State Department's proposal to set up a U.S. Commission to return artworks in US museums that were stolen from Jews and never returned.

If the US doesn't take this measure and force our museums to start telling the truth about where the art in their collections come from, we can hardly expect other countries such as Russia, Poland and Austria to return all of the arts stolen from Jews by the Nazis.

I will be attending the panel. Jen is launching a special interest group of the American Society of International Law  on the International Law of Cultural Heritage & the Arts.

Above at top is a photograph of Alfred Flechtheim, the leading contemporary art dealer in the Weimar Republic and reviled in Nazi propaganda as the "Artjew Flechtheim".   You will find practically nothing written about Flechtheim in the English language - the U.S. museums who have the artworks stolen from his Berlin and Dusseldorf galleries would like to write Flechtheim out of history.  Below, Flechtheim's portrait by Otto Dix.  Dix's style shown below was known as "Neue Sachtlicheit" (New Objectivity).

Alfred Flechtheim the Art Dealer - Otto Dix 1926

Why Did Congress Write the Copyright Act's Criminal Provisions Without Using the Words "Music Piracy"?

Daniel Defoe, Author of Robinson Crusoe - Attacked By Pirates Since 1703

Image thanks to Wikipedia

I don't practice criminal law.  It is truly astonishing to see the poetic license that judges let prosecutors use to impose criminal penalties on defendants for crimes that don't exist.   Here's a case of a kid being prosecuted for "music piracy" - a crime not found in the Copyright Act, and specifically not in 17 U.S.C. Section 506 "Criminal Infringement".  U.S. v. Cassim, 2010 WL 933943, 4 (S.D.Tex. March 12, 2010).  Here is the judge's denial of defendant's motion in limine to exclude use of the term "music piracy".

IV. MOTION IN LIMINE REGARDING THE TERM “MUSIC PIRACY”


Defendants seeks to exclude any use of the terms “music piracy” from the jury. They argue that this term is not evidentiary, has no probative value, and is highly inflammatory such that it will create undue prejudice. The Government, in response, argues that this term would be highly probative of the Defendants' knowledge of the unlawful object of the conspiracy. The Court finds that, because this term was and is commonly used to refer to the conduct in question, it will be difficult for witnesses and lawyers to generate an adequate substitute during questioning. It need not, therefore, be entirely excluded. However, the Court invites counsel for Defendants to suggest any possible limiting instructions which, if offered to the jury, might mitigate any possible prejudice that the term might create.

I have litigated many copyright infringement cases without the need to refer to the word "piracy" though as a civil plaintiff it is a nice synonym referring to a person who makes multiple exact duplicates, rather than someone who borrowed portions of a copyrighted work.  But it certainly is not necessary in a civil proceeding and would appear to me to be highly improper to use in a criminal proceeding.


From Wikipedia's definition of "Copyright Infringement"

Copyright infringement (or copyright violation) is the unauthorized or prohibited use of works covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.


For electronic and audio-visual media, unauthorized reproduction and distribution is also commonly referred to as piracy (an early reference was made by Daniel Defoe in 1703 when he said of his novel True-born Englishman : "Its being Printed again and again, by Pyrates"). The practice of labeling the act of infringement as "piracy" actually predates copyright itself. Even prior to the 1709 enactment of the Statute of Anne, generally recognized as the first copyright law, the Stationers' Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labeled pirates as early as 1603.

The legal basis for this usage dates from the same era, and has been consistently applied until the present time. Critics of the use of the term "piracy" to describe such practices contend that it is pejorative and unfairly equates copyright infringement with more sinister activity, though courts often hold that under law the two terms are interchangeable.

Let's get the prosecutor a thesaurus, call the crime by the name Congress selected in drafting 17 U.S.C. Section 506 and let's leave the pirate stuff to Johnny Depp.

Beware of Default Judgments: Captcha Gotcha Spammers Under Digital Millenium Copyright Act

Craigslist is a wildly popular service for posting free classified advertisements.  Over the years I have hired a number of employees through Craigslist - responding quickly to an ad shows tech savvy, computer literacy and some level of good judgment.

Over the years we have all entered fuzzy, annoying-looking numbers and words into Captcha fields probably without thinking too much about it.   Captcha is a free spam-proofing device used by many websites to ensure that a human being is entering a website and using it for legitimate purposes.  There are numerous providers of Captchas, check out here and here.

From Wikipedia:

A CAPTCHA or Captcha (pronounced /ˈkæptʃə/) is a type of challenge-response test used in computing to ensure that the response is not generated by a computer. The process usually involves one computer (a server) asking a user to complete a simple test which the computer is able to generate and grade. Because other computers are unable to solve the CAPTCHA, any user entering a correct solution is presumed to be human. Thus, it is sometimes described as a reverse Turing test, because it is administered by a machine and targeted to a human, in contrast to the standard Turing test that is typically administered by a human and targeted to a machine. A common type of CAPTCHA requires that the user type letters or digits from a distorted image that appears on the screen.

I found one 2007 case finding CAPTCHA to be a technological measure to protect copyrighted materials, the circumvention of which would be a violation of the Digital Millenium Copyright Act. Ticketmaster L.L.C. v. RMG Technologies, Inc., 507 F. Supp. 2d 1096 (C.D. Cal. 2007)

In Craigslist, Inc. v. Naturemarket, Inc., C 08-5065 PJH, 2010 WL 807446 (N.D. Cal. Mar. 5, 2010) Craigslist sued a spammer who offered software that did auto posting on Craigslist and sold telephone-verified Craigslist accounts to other spammers or marketers.  To develop the software, the spammer had to access Craigslist, obtain data, code and images, steal telephone-verified accounts, and distribute that information.

When we go on a website, we usually click "I accept" the terms of use ("TOU").  This creates a contract or license agreement (a k a "end user license agreement" or EULA) governing use of the information obtained through the website or database accessed.

In Craigslist, Inc. v. Naturemarket, Inc., Craigslist sought to pursue the spammer through the Digital Millenium Copyright Act and through the terms of the TOU (essentially contract claims).

Craiglist was told by the spammer that he'd sold about $40,000 worth of the autoposter software.  Craigslist pursued both  Digital Millennium Copyright Act, 17 U.S.C. §§ 1201 ("DMCA") and the TOU (Contract) claims.

The spammer did not hire a lawyer to defend the lawsuit and failed to respond to pleadings and court notices.

Craiglist obtained default judgments pursuant to Rule 55 of the Federal Rules of Civil Procedure under both the DMCA for statutory damages of $470,000 and under the TOU (Contract) for $840,000. The court found the liquidated damages clause of $200 per unauthorized post to be enforceable.   The court accepted Craigslist's lowest estimate of unauthorized posts.  The spammer, Igor Gasov was held personally liable.

 Craigslist alleged that Defendants violated § 1201(a)(2) and (b)(1) of the DMCA. “A plaintiff alleging a violation of § 1201(a)(2) must prove: (1) ownership of a valid copyright on a work, (2) effectively controlled by a technological measure, which has been circumvented, (3) that third parties can now access (4) without authorization, in a manner that (5) infringes or facilitates infringing a right protected by the Copyright Act, because of a product that (6) the defendant either (I) designed or produced primarily for circumvention; (ii) made available despite only limited commercial significance other than circumvention; or (iii) marketed for use in circumvention of the controlling technological measure.” Ticketmaster L.L. C., 507 F.Supp.2d at 1111 (quoting Chamberlain Group, Inc. v. Skylink Tech., Inc., 381 F.3d 1178, 1203 (Fed.Cir.2004)).

The court found defendant's "auto poster" software to be a product violating the DMCA because it permitted posters to circumvent Craigslist's Captcha and telephone verification controls.

Looking at Google, we can see that the spammers did not get the message that auto poster software and selling verified Craigslist accounts can lead to significant personal liability.  It appears that the market for spamming Craiglist is quite large.  It is very dangerous not to defend these cases.   Craigslist's lawyers were awarded $65,038.20 in legal fees and $1,712.07 in costs.

Legal Materials Product Review: Copyright Litigation Handbook on Westlaw Next and Kindle

West publishing is rolling out Westlaw Next, a whole new way of accessing and working with content accessed through Westlaw.  Searches are a lot more intuitive, content is found through Google-type searches and can be saved to folders.   Once you've saved content to your research folders, you don't incur additional charges for accessing that content.

The Copyright Litigation Handbook was first published in 2006 and was instantly hailed as "indispensable" by the New York Law Journal.   It is updated annually and designed to be a handy volume to keep for frequent reference at deskside for the busy litigator looking for practical solutions and a quick reference to the Copyright Act, the Federal Rules of Civil Procedure, and to the cases interpreting their intersection in federal litigation practice.

Copyright Litigation Handbook was subsequently added to  the Westlaw database.  But anyone accessing Copyright Litigation Handbook on standard Westlaw had to know that the database is COPYLITIG in order to access it.   Now, if the content is relevant, it should pop up in easily accessible secondary sources pages that are better organized and easier to get at.  

If your West sales reps haven't given you the passwords to Westlaw NEXT, make sure to get the access keys, this is a tremendous time-saving product that makes it much easier to cut and paste relevant content.  A look at what the product looks like:

As you can see from the above, I went into Copyright Litigation Handbook and checked out what it had to say about default judgments.  The answers are clear and easy to read with your search remaining in the Google-type bar above.

You can see that once you are in the content, you can save to your research folder, add a note, highlight or copy with reference.   Again, much quicker and intuitive than Westlaw.  Saved folders are stored like Outlook and you can go back and view them in a really clear and intuitive manner.  In Westlaw, the research trails were annoying and confusing, I just always redid the research.   Your notes are searchable (I didn't test this feature).

Here you have a drop-down menu making it easy to email, print, download or send to your Amazon Kindle.  The Kindle format is nice, easy on the eyes book-style format.

Here you can see that viewing the outline of Copyright Litigation Handbook is again easier on the eyes.  As the text expands out, it is easier to follow where it came from and to follow it back.

Switching to full screen mode makes the text more readable.

You can add frequently-consulted texts like Copyright Litigation Handbook to your Favorites folder.

Vacancies in Article III Federal Judgeships Is A National Crisis

From http://www.uscourts.gov/judicialvac.cfm

Visual Arts and the Law Panel April 9 - Hofstra Law and NYSBA at the Cornell Club

Parthenon Selene Horse (source: Wikipedia)

ART LAW CANVAS(S):


AN EXAMINATION OF LEGAL ISSUES AFFECTING THE VISUAL ARTS COMMUNITY

FOR ARTISTS AND THE LAWYERS WHO HELP PROTECT THEM

When: Friday, April 9, 2010


Time: 12:00 p.m. – 5:00 p.m.

Location: CORNELL CLUB

6 East 44th Street,

New York, NY 10017

4 CLE Credits

Member CLE Cost: $175

Non- Member CLE: $200

Students/ Public: $25


12:00 p.m. Registration & Refreshments

12:30 p.m. Welcome & Introductory Remarks

EASL Young Lawyers Committee Co-Chairs - Stephanie Khalifa & Rachel DeLetto

President of Art Law & Culture Society - Monica Pham

Presented by:


THE ENTERTAINMENT ARTS & SPORTS LAW SECTION OF THE NEW YORK STATE BAR ASSOCIATION

and

ART LAW & CULTURE SOCIETY, PRESIDENT  MONICA PHAM
Portion of proceeds will be donated to

Haiti/Chile relief organizations.
12:40 p.m. The Art of Mediation- THE TRANSFORMATIVE APPROACH TO CONFLICT

Dealing with the Interaction not just the Transaction: Embedded within every transactional conflict, especially when creative properties are involved, is the history of the human interaction between the creative personalities involved. To address the transaction itself, without also addressing the interaction, may resolve the claims, but it will likely not resolve the residue of the poisoned interaction that gave rise to those claims. Transformative mediation offers a way to address both the transactional and interactional dimensions of conflict involving creative enterprises.

Prof. Robert Baruch Bush, Author of The Promise of Mediation, and Harry H. Rains Distinguished Professor of Arbitration and Alternative Dispute Settlement Law

1:10 p.m. Real or Fake? Warranties of Authenticity

A discussion of the relationship between the major international art auction houses Sotheby’s and Christies and small galleries. Art is an investment, but it is also part of our cultural heritage. What rights and obligations accompany the purchase and sale of art? The panel will discuss Thome v. Alexander & Louisa Calder Foundation, 890 N.Y.S. 2d 16 (2009) in which Judge Ramos held that the Calder Foundation had no duty to authenticate a work of art.

Moderator: The Honorable Charles Ramos, NYS Supreme Court, Commercial Division

Panelists: The Honorable Barbara Jaffe, NYS Supreme Court, Civil Division; Jay Safer, Esq., Partner, Locke, Lord & Bissell; John R, Cahill, Esq., Partner, Lynn & Cahill LLP; Jo Backer Laird, Esq., Of Counsel, Patterson Belknap Webb & Tyler LLP; Dennis Oppenheim, Artist.
2:00 p.m. Lunch Provided

Mesclun Salad of Field Greens with Housemade Vinaigrette, Traditional New York Style Cole Slaw, Black Forest Ham, Sliced Grilled Tarragon Chicken Breast, Smoked Pork Loin, Roast Beef, Mesquite Smoked Turkey Breast, Hummus and Pita Triangle Platter, Basket of Bread and Rolls

Grilled Vegetable Platter, Asian Chicken and Cashew Noodle Salad, Chicken Salad with Walnuts and Cranberries, Israeli Cous Cous Salad with Roasted Mushrooms, Horseradish Mayo, Red Pepper Basil Aioli Honey Dijon

Club-Baked Assorted Cookies, Basket of Whole Fruit to Include Apples, Oranges and Bananas

Coffee and Tea Service, Assorted Soft Drinks and Iced Tea
2:10 p.m. Copyright it: Protecting the fruits of your labor

A discussion of artistic authenticity and originality. What happens when an artist appropriates the work of another artist? This panel will address copyright issues that affect contemporary artists, including moral rights, resale rights, and the scope of fair use. When is an artistic expression protected by copyright and when does it infringe another’s copyright? Another angle of the "real" versus "fake" discussion is the idea of: "original" versus "copy" and whether an artist him/herself appropriated the work of another. Copyright Issues particularly pertinent to artists, moral rights and resale rights will be discussed. The following questions will be addressed: What is fair use? What is copying? How can an artist properly justify what he or she has originally created and what is “inspiration” from another source? How can artists protect themselves?

Moderator: The Honorable R. Bruce Cozzens (Civil Division)

Panelists: Raymond Dowd, Esq., Partner, Dunnington, Bartholow & Miller LLP; Sergio Munoz Sarmiento, Esq., Associate Director, Volunteer Lawyers for Arts; Jason Nardiello, Esq., Associate, Locke, Lord & Bissell; Amy J. Goldrich, Esq., The Offices of Amy Goldrich; Paul Ickovic, Artist
3:00 p.m. Sex, Art, and the First Amendment

A discussion of First Amendment rights and limitations on artistic expression. NEA v. Finley held that the statutory funding guidelines requiring the NEA to consider artistic excellence, merit, and general standards of “decency and respect” do not violate the First Amendment. Does it encourage discrimination in violation of the First Amendment's freedom of expression guarantees? How did it affect the Brooklyn Museum of Art and its legal battles with Mayor Rudolph Giuliani and the problem of conditions on government arts funding more generally?
Moderator: Prof. Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, Hofstra University School of Law

Panelists: Imo Imeh, Artist, and Ph.d Candidate at Yale University; Dean R. Nicyper, Esq., Partner, Fleming, Zulack, Williamson, Zauderer LLP; Marjorie Heins, director of the Free Expression Policy Project or author of Not in Front of the Children: “Indecency,” Censorship & the Innocence of Youth, Prof. Leon Friedman, Joseph Kushner Distinguished Professor of Civil Liberties Law.

4:00 p.m. Coffee Break
4:10 p.m. Keynote Address – Art Law Problems in Search of Solutions: from Adverse Possession to World Art law Systems
Professor Herbert "Bert" Lazerow- Professor of Law and Director of the Institute on International and Comparative Law, at the University of San Diego will examine all issues discussed by all the panels.
5:00 p.m. Closing Remarks by Prof. Leon Friedman, Hofstra University School of Law
A Portion of the Proceeds will go to the following Organization:

IN THE HEART OF PORT-AU-PRINCE: GHESKIO RELIEF IN HAITI

GHESKIO establishes refugee camp and field hospital for thousands of earthquake survivors and continues AIDS care

For More Information please go to:

http://weill.cornell.edu/globalhealth/

General Public, Artists & Law students are encouraged to attend!!

SDNY Federal Bar Association Chapter Meeting at Smith Gambrell & Russell LLP

The Federal Bar Association

invites you to a meeting of the

Southern District of New York Chapter

Date: March 23, 2010

Time: 5:30 p.m.

Place: SMITH GAMBRELL & RUSSELL, LLP

250 Park Avenue

19th Floor

New York, NY 10177

New members and all interested persons welcome, light refreshments to be served. Please come and get involved.

Respectfully submitted,

John G. McCarthy, President

Simeon H. Baum, President-Elect

Philip R. Schatz, Vice President

Gareth de Santiago-Keene, Secretary

William F. Dahill, Treasurer

H. Raymond Fasano, National Delegate

Roland M. Gell, Delegate, Network of Bar Leaders

R.S.V.P. or more information: Grace M. Fusco, Assistant to John G. McCarthy

gfusco@sgrlaw.com

Tel.: (212) 907-9700 Ext. 79606

The Federal Bar Association is the nation’s premier bar association for judges and lawyers involved in federal practice. The FBA publishes The Federal Lawyer - a monthly magazine for attorneys practicing in federal court and in the federal government. For more information on the Federal Bar Association, please visit http://www.fedbar.org/.

4th Circuit: Fine Art Paintings from Photographs and Actual Damages For Copyright Infringement

In Hofmann v. O'Brien, 2010 WL 675006 (4th Cir. Feb 26, 2010), the Court of Appeals for the Fourth Circuit considered the following fact scenario following a jury trial:

1. Plaintiff Douglas Hofmann is a fine art painter who works from photographs.  Hofman staged numerous photographs involving ballet dancers.   He intended to paint fine art works from the photographs.   A low res example of Hofman's work from his website.

Douglas Hofmann Master Class

2.   John O'Brien is a deceased fine art painter.  During his lifetime he took one of Hofmann's photographs without Hofmann's permission and created a painting from the photograph that was essentially a copy.   His widow, Mary O'Brien posted an image of O'Brien's painting on his website and offered prints for sale.  An example of O'Brien's work:

John O'Brien Her First Ballet

3.   A trial was held.  The jury awarded $201,550 in actual damages based on claims of conversion and copyright infringement.   Hofmann's out of pocket costs to create the photograph were $1,550.

The main issue before the court was whether the jury instructions on damages were correct and whether the jury's damage award was supported by the evidence.   Since the photograph was presumably not registred timely, Hofmann was forced to prove "actual damages" under Section 504(b) of the Copyright Act.  Section 504(b) states:

(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

The Fourth Circuit found that the artist had not proved actual damages sufficient to support the jury's award and reversed for remittitur or trial.   

Cases throwing out testimony relating to actual damages of a copyright are legion and proof of actual damages is notoriously difficult.    As the Fourth Circuit cautions "General claims of 'hurt feelings' or an owner's 'personal objections to the manipulation of his artwork' must not enter into the calculus'

[quoting Mackie v. Reiser, 296 F.3d 909, 917 (9th Cir. 2002)].

The decision doesn't tell us whether the widow knew that the work was infringing - a widow is not generally the best defendant, no matter what the merits of your case are.

This case reinforces the importance for artists of promptly registering copyrights with the Copyright Office so that they may be entitled to statutory damages and attorneys fees.    I discuss these issues further in Copyright Litigation Handbook - Chapter 15 - Evidence and Experts); Chapter 16 - Jury Instructions; Chapter 17 - Damages and Profits; and Chapter 18 - Costs and Attorneys Fees.

Pleading Copyright Claims: Israeli Copyrights, the Berne Convention and Protecting Cracked Software

In Waves Audio Ltd v. Uptime Inc., 2010 WL 308301 (S.D.N.Y. Jan 22, 2010), Judge Naomi Reice Buchwald dealt with an unusual case:  a copyright infringement action that had already spent two years in litigation in New York State Supreme Court.  Plaintiff Waves distributes an audio software and alleged that Uptime Studios used a cracked/pirated copy.  The plaintiffs voluntarily dismissed the state claims and refiled a federal action.   Judge Buchwald considered the issue of whether the plaintiffs should be allowed to amend a FOURTH time in the federal action to allege the copyrights they owned and to add claims to unspecified Israeli copyrights under the Berne Convention.

Judge Buchwald told Waves that a fourth bite at the apple (too many amendments after numerous warnings about the complaint's lack of specificity) was too much and didn't let the plaintiff add the Israeli copyrights.

Lots of litigation recently regarding the Berne Convention see my recent post here.  Software sellers having a nightmare figuring out who owns all that code?  Lots more cases like this to come.

Federal Bar Association - SDNY Chapter Swearing In Of New Officers By Chief Judge Loretta A. Preska

On March 1, 2010 Amy Gell, my fellow Vice President for the Second Circuit of the Federal Bar Association, and I organized a ceremony for the swearing-in of new officers of the Federal Bar Association's SDNY Chapter. The Hon. Loretta A. Preska, Chief U.S. District Judge of the Southern District of New York presided.  New chapter officers:
President: John G. McCarthy
President-Elect: Simeon H. Baum
Vice President: Philip R. Schatz
Secretary: Gareth de Santiago-Keene
Treasurer: William F. Dahill
National Delegate: H. Raymond Fasano
Delegate to the Network of Bar Leaders: Roland M. Gell

Myself and Chief Judge Preska

John G. McCarthy about to be sworn in.

I recount some of the achievements of the Federal Bar Association.

Judge Preska welcomes the new officers.

History and workings of the Southern District of New York.

Amy Gell welcomes John McCarthy as new President.

The McCarthy era begins.

The new leadership of the Federal Bar Association for the Second Circuit and Southern District of New York.

President-Elect Simeon Baum puts his mediation skills into practice.

Phil Schatz with Judge Preska.

Gareth de Santiago-Keene and Beata with Judge Preska

Danny Phillips with Bill and Tara Dahill

Amy Gell and I with our mentor, Past President M. Barry Levy

Roland Gell with Judge Preska

John McCarthy and I were classmates Fordham Law '91, we both served on the Fordham International Law Journal, he was Managing Editor and I was an Articles Editor.

The Federal Bar Association is the nation’s premier bar association for judges and lawyers involved in federal practice.  The FBA publishes The Federal Lawyer - a monthly magazine for attorneys practicing in federal court and in the federal government. For more information on the Federal Bar Association, please visit http://www.fedbar.org/.