A Thief Cannot Pass Good Title: Research Tips on West Reference Attorney Blog

How does one research a Nazi art looting case?

Coverage of the Bakalar v. Vavra case and interview with me in the wake of my victory for the heirs of Fritz Grunbaum at the Second Circuit at the West Reference Attorney Blog under the heading "A Thief Cannot Pass Good Title" here.

I met a number of West Reference Attorneys when I took a tour of the West HQ and printing plant in Eagan, MN.  They are a great group, check out their blog for the latest topics in legal research/news.

 More on Fritz Grunbaum and the theft of artworks from him when he was in the Dachau concentration camp here.

For a translation of the Second Circuit's Bakalar v. Vavra decision into German, go here.


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10/6 Dunnington Sponsors Morgenthau Reception at Museum of Jewish Heritage for NYCLA Sustaining Members

I am co-hosting an evening at the Museum of Jewish Heritage on October 6 for Sustaining Members of the New York County Lawyers' Association.  If you are not a Sustaining Member, sign up now!

Dear Sustaining Member,

I cordially invite you to join me at The Morgenthaus Exhibit at the Museum of Jewish Heritage, and to a private reception on Wednesday, October 6, 2010 from 6:00PM-8:00PM (reception 7:00PM).
Our special guest will be Robert M. Morgenthau. The Museum is located at 36 Battery Place, New York, NY (click here for directions). The support provided by Sustaining Members like you makes much of what we do possible, and assures that NYCLA has a strong voice when we collectively speak out on all the vital issues that affect the bar and the public. Thank you for contributing to over 100 years of excellence at the Home of Law.

The Morgenthaus: A Legacy of Service
The Morgenthaus have embraced the promise of America since their arrival in 1886. Wanting to contribute to their country and their communities, they dedicated themselves to public service. The exhibition tells the story of three generations of this family, and explores the fascinating ways in which their services to others changed the course of world events, American politics, and Jewish history.

I look forward to seeing you at this special event. RSVP: agluck@nycla.org. (Please reserve early as space is limited)

Sincerely,
James B. Kobak
NYCLA President
Chair: Hon. Louis Crespo · Co-Hosts: Hon. Stephen G. Crane & Raymond Dowd · Sponsors: Dunnington, Bartholow & Miller LLP; JAMS; Hon. Louis Crespo


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Copyright and Fine Art: Rave Reviews at New York County Lawyers' Association

Corot's Portrait of a Girl

Last week I gave a three-hour CLE program at New York County Lawyers' Association on Copyright and Fine Art, together with the Hon. Stephen G. Crane of JAMS who acted as moderator:



Some nice words from NYCLA's Executive Director Bari Chase:

We just compiled the comments from Tuesday’s program and as you can see you got rave reviews.

“Speaker knew exactly what he was talking about. Very good job!”

“Loved it. Wonderful. Very interesting. (Please consider holding another art law symposium, too)”

“It was really interesting—pleasantly surprised”

“Perhaps the best seminar I’ve attended at NYCLA”

“The information was very interesting, and the speaker was clear, dynamic, and knowledgeable”



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Art Litigation: Second Circuit Sends Art Ownership Dispute Back to the Drawing Board

Egon Schiele's Seated Woman With Bent Left Leg (Torso)

The headless woman who invaded my life five years ago, a well-known fixation of mine known to readers of the Copyright Litigation Blog.  She is pretty much single handedly responsible for me learning a great deal about Nazi art looting and adding that dimension to a blog that started out with other intentions.  People seem to like the mix!

Article from NYLJ on Second Circuit reversal in Bakalar v. Vavra here.

More on the litigation and Bakalar v. Vavra decision here.

More on Nazi art looting here.

More on Fritz Grunbaum and other artworks stolen from him here.

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Copyright Law: Analysts' Opinions Copyrightable, Not "Hot News"

Above - Tipstrader.com is no longer operating

Sometimes your case is a winner, but not for the reasons you thought.  That's why litigators, much to the frustration of judges, tend to toss the kitchen sink into a complaint.  Better to have a grouchy judge and have pleaded at least one winning alternative theory than to lose and have the court say you're too late and should have cooked up an alternative theory earlier.

Such was plaintiff's dilemma in Agora Financial LLC v. Samler, ---- F. Supp.2d ---- 2010 WL 2899036 (D. Md. June 17, 2010).

In Agora, a magistrate judge was called to report and recommend after a defendant had defaulted.  The facts: investment newsletter publisher sued website that culled all of its recommendations and published them on Tipstrader.com.   Claims?   "Hot news misappropriation" and Section 43(a) of the Lanham Act.

A nice, lean complaint, just like they tell us to file.  Right?  Wrong.

In an interesting decision that explained the "hot news" misappropriation claim, the court ruled that the defendants had not violated the "hot news" exception because the analyst recommendations were opinions, not facts, and thus were protectable under copyright law.  

"Hot news" misappropriation:

(i) the plaintiff generates or gathers information at some cost or expense ...; (ii) the value of the information is highly time-sensitive ...; (iii) the defendant's use of the information constitutes free-riding on the plaintiff's costly efforts to generate or collect it ...; (iv) the defendant's use of the information is in direct competition with a product or service offered by the plaintiff ...; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened....


Since copyright law preempts equivalent state law claims, the "hot news" misappropriation claim was not available.   The Lanham Act claim failed as well.

The court, discussing the U.S. Supreme Court's Feist opinion, which rejected the "sweat of the brow" doctrine and required a modicum of originality to qualify for copyright, found the analyst's opinions to satisfiy the originality test and thus be covered by copyright.  So the plaintiff lost the application for a default, but was granted the gift of learning that its activities are protected by copyright law.

In Copyright Litigation Handbook, Chapter 7 "Drafting the Infringement Complaint" gives some thoughts on framing copyright pleadings.   Chapter 10: "Removal from State Court and Preemption" reviews problems raised by the preemption doctrine and gives guidance in navigating the differences between state and federal claims in the copyright context.

The 2010 Copyright Litigation Handbook just shipped, so now is a good time to get your copy.  This year I greatly expanded my treatment of applications for default judgments, which seems to be a growing area of copyright law.

Westlaw users can access Copyright Litigation Handbook through the COPYLITIG database.

More on preemption here.

More on hot news here.

More on default judgments here.

More on Feist here.

 Purchase the 2010 Copyright Litigation Handbook from West here  

Bearcat Tire

In In re Outsidewall Tire Litigation, 2010 WL 2929626 (E.D. VA July 21, 2010), the court considered the question of whether a U.S. copyright owner could collect for infringements in China.   The court found that the Second and Ninth Circuits had permitted such recoveries where a predicate act of infringement had occured in the United States.   Here, a copyrighted tire design was copied in the U.S. then transported to China, where it was exploited.  The court permitted recovery of profits (not actual damages), even though the initial act of infringement fell outside the statute of limitations.

The court noted that both the Second and Ninth Circuits had permitted recoveries under similar circumstances and upheld the jury verdict.

The issue arose in the context of a motion pursuant to Rule 50 of the Federal Rules of Civil Procedure to determine whether the evidence adduced at trial was sufficient to support the jury's verdict.

Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling

(a) Judgment as a Matter of Law.
(1) In General.
If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
(2) Motion.
A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial.
If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment — or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged — the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
(c) Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial.
(1) In General.
If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial.
(2) Effect of a Conditional Ruling.
Conditionally granting the motion for a new trial does not affect the judgment's finality; if the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders.
(d) Time for a Losing Party’s New-Trial Motion.
Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered must be filed no later than 28 days after the entry of the judgment.
(e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal.
If the court denies the motion for judgment as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment.

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Rule 26(e) of the Federal Rules of Civil Procedure: Production of Images After Discovery Cut-Off Ok'd

In Teter v. Glass Onion, Inc, 2010 WL 2945520 (W.D. Mo. July 22, 2010), the court considered a motion pursuant to Rule 37(c) of the Federal Rules of Procedure to exclude from evidence images culled from the internet and Internet Archive after the discovery cutoff.

Rule 26(e) of the Federal Rules of Civil Procedure provides:

(e) Supplementation of Disclosures and Responses.

(1) In General.
A party who has made a disclosure under Rule 26(a) — or who has responded to an interrogatory, request for production, or request for admission — must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.

 In Teter, the plaintiff requested all documents that were to be used at trial during a formal discovery request.
 
Rule 37(c) of the Federal Rules of Civil Procedure provides:
 
(c) Failure to Disclose; to Supplement an Earlier Response, or to Admit.

(1) Failure to Disclose or Supplement.
If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

[ * * * ]

In this case, the materials were provided 20 days after the close of discovery.  The court found that the images were publicly available to both sides from a public domain source, the adversary could not possibly be prejudiced.

I cover Discovery in Chapter 14 of the Copyright Litigation Handbook.  Not every judge takes Teter's common-sense view.   And Teter should not be seen as a free pass from a discovery cut-off.   When discovery has already been produced and new materials come in, scan the new materials, privilege review/redact/log them, and get them out right away with a cover letter saying you are supplementing pursuant to Rule 26(e).  Not every judge will permit documents produced after a discovery cutoff to be used in a trial.  


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Verdict overturned in "Nazi" art flap - NYPOST.com

Verdict overturned in "Nazi" art flap - NYPOST.com

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Art Litigation: Second Circuit Rules In Another Stolen Egon Schiele Drawing Case

The Second Circuit Court of Appeals ruled today in a case involving the Estate of Fritz Grunbaum.  A Massachusetts inventor and sculptor named David Bakalar purchased a drawing taken from Grunbaum while he was in the Dachau Concentration Camp, where he was murdered by the Nazis.

The decision is below.  The Second Circuit concluded that the trial judge erred by applying Swiss, rather than New York law, to determine title to an artwork located in New York.

I was lead trial counsel at the district court level and argued the appeal to the Second Circuit.

Fritz Grunbaum's art collection made headlines when D.A. Robert Morgenthau seized Egon Schiele's Dead City from the MoMA in New York City.   At the same time, Morgenthau seized Egon Schiele's Portrait of Wally, which was also stolen.   Portrait of Wally was returned by Austria this summer.

The Grunbaum heirs are waiting on Austria to make a decision on whether or not to return Dead City and the other artworks stolen from Fritz Grunbaum that are now in the Albertina and Leopold Museums.   Austria has promised to issue a report soon, and then The Austrian Commission for Provenance Research is expected to rule.

Oberlin College has steadfastly refused to share its provenance research into Black Girl, another work stolen from Fritz Grunbaum while he was in Dachau.  Oberlin's provenance page here.

If American researchers and academic institutions like Oberlin won't be honest about the Nazi provenance of the artworks in their collections, why should we expect better of Austria?

More on Oberlin's falsified provenance of Black Girl here.

More on Nazi Art Looting here.

More on Fritz Grunbaum here.

More on Egon Schiele here.


Art Litigation - Nazi Looted Art - Bakalar v Vavra - Stolen Egon Schiele Drawing

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Copyright Law: Removing Copyright Management Information from Photographs May Violate DMCA and Lanham Act

 Selfmadephoto.com

In Cable v. Agence France Presse, 2010 WL 2902074 (N.D. Ill. July 20, 2010), a photographer sued Agence France Presse for violations of the Digital Millenium Copyright Act 17 USC 1202 and the Lanham Act.  The violation alleged was that AFP removed the photographer's name, copyright notice and a "hotlink" to his website that were embedded in the photographs, then resold or reused the photographs.

AFP moved to dismiss, claiming that the photographer's name, copyright notice and hotlink were not "copyright management information" as intended by the DMCA.  AFP argued that "copyright management information" referred to copyright management performed by technological systems.

The court rejected AFP's argument and declined to dismiss the claim based on a DMCA violation.   The court also upheld a Lanham Act claim based on the same facts, finding that a claim for "reverse passing off" had been alleged, relying on the Supreme Court's Dastar case.

The DMCA - 17 USC 1202 - provides in relevant part:

§ 1202. Integrity of copyright management information3



(a) False Copyright Management Information. — No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement —

(1) provide copyright management information that is false, or
(2) distribute or import for distribution copyright management information that is false.


(b) Removal or Alteration of Copyright Management Information. — No person shall, without the authority of the copyright owner or the law —
(1) intentionally remove or alter any copyright management information,
(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or
(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

(c) Definition. — As used in this section, the term “copyright management information” means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work:
(1) The title and other information identifying the work, including the information set forth on a notice of copyright.
(2) The name of, and other identifying information about, the author of a work.
(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
(4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
(5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.
(6) Terms and conditions for use of the work.
(7) Identifying numbers or symbols referring to such information or links to such information.
(8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.
More on the DMCA here and here.

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Software Programs: Joint Authorship, Work for Hire and Declaratory Judgment Actions for Copyright Ownership

Woods v. Resnick, 2010 WL 2814414 (W.D. Wis. July 16, 2010) involved two men who were members of an LLC.   One was the "idea guy".  The other was a software programmer who worked from home.

The "idea guy" claimed that he owned the software.  He hired an expert to show that he'd made independently copyrightable contributions, which is one of the requirements of joint authorship.  The court disregarded the expert's findings in part because the expert was not an expert in copyright law and found that the "idea guy" had supplied only some non-copyrightable formulas.

The software programmer worked at home, was the only one with access to the source code, worked independently, and importantly, never signed a work for hire agreement.

The court considered cross-motions for summary judgment.   From the decision, it does not appear that either party registered any claims with the Copyright Office. The court found the software programmer to be the "sole author" of the software program and thus the owner.

Interestingly, the court considered an argument that the LLC's representations to third party that it was the sole owner were admissions that the software programmer had transferred the copyright to the LLC.  17 USC 204(a) provides

§ 204. Execution of transfers of copyright ownership

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.

The court rejected the argument that the representations and warranties contained in service agreements to licensees that the LLC owned the copyright were sufficient to create an assignment satisfying 17 USC 204(a).

More on joint authorship here.

More on work for hire doctrine here.

More on assignments of copyright here.

More on declaratory judgments here.


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