Wednesday, November 19, 2014

Art Law Event Of The Year This Friday!

7th Annual Art Litigation and Dispute Resolution Practice Institute

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

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

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

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

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

Monday, November 10, 2014

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


Federal Bar Association

Southern District New York Chapter & Civil Rights Section

In Conjunction with New York County Lawyers’ Association

Cordially Invites You to this CLE:

Pre-Trial Practice in the Southern District of New York

A Panel Discussion with the Magistrate Judges of the SDNY 

November 13, 2014

4:00 -7:00PM 

SDNY Thurgood Marshall Courthouse,

40 Centre Street, Room 506, New York, NY 

Topics Include:

Initial Conference, Discovery & Sanctions, Settlement Conferences,

Consent to Proceed before a Magistrate Judge, and Best Practices

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

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

Continuing Legal Education in New York and New Jersey.

        Moderator: Wylie Stecklow, Stecklow Cohen & Thompson

        Scheduled Panelists:

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

Will include discussion among panelists and Q&A from participants


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

Thursday, November 06, 2014

Brandeis Association Selects Dunnington Partner Raymond J. Dowd To Commemorate 76th Anniversary of Kristallnacht

Egon Schiele's Town on the Blue River - Krumau (1910)
            Dunnington partner Raymond J. Dowd has been selected to speak at “Murder, Mystery & Masterpieces: The Ethical Implications of World War II Stolen Art,” to be presented by the Brandeis Association and the Queens Women’s Bar Association. The event will take place the Queens County Bar Association (90-35 148th Street, Jamaica, NY) tonight at 6:00 p.m., the date being chosen to coincide with the 76th anniversary of Kristallnacht (November 9-10, 1938). A light kosher supper will precede the event, beginning at 5:30 p.m.
       The Nazis are infamous for their rampant theft of artworks belonging to Jewish people and others deemed undesirable. Public awareness of this pillaging has only grown in recent years with the release of films such as The Monuments Men (2014) and The Rape of Europa (2006). Additionally, newly opened archives in the United States and Europe have contributed to an ever-increasing number of claims brought by the Nazis’ victims and their descendants. As a result, the body of case law pertaining to such matters is constantly growing and evolving.
       Mr. Dowd recently represented the heirs of Holocaust victim Fritz Grunbaum, who was killed at Dachau in 1941, in coming to a restitution settlement agreement concerning the painting Town on the Blue River (Stadt am blauen Fluss – Krumau), painted by Egon Schiele in 1910. The watercolor landscape was among eighty-one works of art by Schiele seized from Mr. Grunbaum’s apartment in Vienna by the Gestapo in March 1938. In 1998, a spotlight was shone upon Mr. Grunbaum’s fate and that of his art when New York District Attorney Robert Morgenthau confiscated the painting Dead City III from New York City’s Museum of Modern Art, where it was on loan from Austria. Because the exhibition was immune from seizure as a result of an international treaty, the piece was ultimately returned; however, the incident was key in propelling the movement to restore Nazi-looted artworks to their rightful owners. Town on the Blue River was auctioned at Christie’s at their Impressionist and Modern Evening Sale on November 5, 2014, where it reached a record high of $2,965,000. The proceeds will be shared by Mr. Grunbaum’s heirs and those of Ilona Gerstel, in whose possession the piece spent nearly a half-century.

     Joining Mr. Dowd in this discussion of art stolen during World War II and the legal and ethical complications in which the restitution of such pieces is mired will be Professor John Q. Barrett of St. John’s University School of Law, who also serves on the Expert Advisory Committee of the International Nuremberg Principles Academy. Following presentation of recent happenings relating to Holocaust-era assets and discussion of their longer-term impact, Mr. Dowd and Professor Barrett will welcome questions from the audience.
The event is free. To register, please click here.

About the Brandeis Association The Brandeis Association was established in 1969 as a Not for Profit Corporation. The stated purpose of the Bar association, as set forth in both the Brandeis Constitution and Articles of Incorporation, is to encourage friendship and culture among our members, to foster respect for law and legal institutions and to vigorously assert its interest in justice and fair play in the County of Queens and in the City and State of New York. All members of the Judiciary, Lawyers, Court personnel and others who support the Jewish faith and the U.S. Constitution are eligible for membership.
About Dunnington partner Raymond J. Dowd Mr. Dowd’s practice focuses on litigation in federal and state trial and appellate courts, arbitration and mediation for cases involving art law, copyrights, trademarks, cybersquatting, privacy, trusts and decedents’ estates, licensing, corporate and real estate transactions. He lectures frequently on copyright and art-related topics and has presented in many venues, including at the 2009 Prague Conference on Holocaust-Era Assets, where he served on an expert panel, the Jewish Museum in Berlin, Yad Vashem in Jerusalem, the Pennsylvania Academy of the Fine Arts, the San Francisco War Memorial, and the U.S. District Court for the District of Columbia. In 2007, he co-founded the Art Litigation and Dispute Resolution Institute at New York County Lawyers’ Association. Mr. Dowd authors Copyright Litigation Handbook (West 7th Ed. 2013-2014)(updated annually). Currently Mr. Dowd serves on the Board of Directors of the Federal Bar Association, having earlier held the positions of President of the Southern District of New York Chapter (2006-2008) and general counsel of the national organization, and as President of the Network of Bar Leaders.
Dunnington, Bartholow & Miller LLP was selected as a 2014 Top Ranked Law Firm for Intellectual Property by Corporate Counsel/ALM/The American Lawyer. Dunnington is a full-service law firm providing corporate, litigation, intellectual property, real estate, taxation and estate planning services for an international clientele. Find out more at
Attorney advertising. Past results do not guarantee future outcomes
 Copyright law, fine art and navigating the courts. All practice, no theory.
Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd Copyright Litigation Handbook on Westlaw

Monday, November 03, 2014

Can A Jewish Man Imprisoned In Dachau Concentration Camp Transfer Valid Legal Title To A Schiele Painting?

Egon Schiele's Seated Woman With Bent Left Leg (1917)
On October 31, the family of Fritz Grunbaum gathered at the Museum of Jewish Heritage - A Living Memorial To The Holocaust to thank former District Attorney Robert Morgenthau for his efforts to recover Egon Schiele's Dead City III, an artwork he seized on behalf of Grunbaum's family at the MoMA in 1998.

Mr. Morgenthau, referring to the above drawing, read the following from a concurrence written by Judge Edward Korman when he sat by designation on  a case called Bakalar v. Vavra at the Second Circuit Court of Appeals:

Grunbaum was arrested while attempting to flee from the Nazis. After his arrest, he never again had physical possession of any of his artwork, including the Drawing. The power of attorney, which he was forced to execute while in the Dachau concentration camp, divested him of his legal control over the Drawing. Such an involuntary divestiture of possession and legal control rendered any subsequent transfer void.

Bakalar v. Vavra, 619 F.3d 136, 148 (2d. Cir. 2010)(concurrence).   The three judges on the Second Circuit panel in this published, precedential opinion found that the record suggested evidence that Nazis had looted Fritz Grunbaum's art collection and remanded to the trial court to reconsider the evidence.

Yet, despite what Judge Korman wrote, this week Sotheby's is planning to auction the Drawing without mentioning the Dachau power of attorney that Fritz was forced to execute, without mentioning Schenker, the Nazi looting entity that held the Drawing, and without mentioning Ludwig Rochlitzer, the Aryan trustee appointed to liquidate the Grunbaum's assets in January 1939.

To understand some of the facts relating to the Drawing's provenance, some explanation is necessary.
On March 22, 1938 Fritz Grunbaum was arrested by the Gestapo in Vienna and imprisoned in Dachau, where he died penniless.  Shortly after his arrest, a Nazi named Kieslinger inventoried Grunbaum's art collection.  Kieslinger counted 81 Schieles.  Five oils listed by name, including Dead City III.  The remaining 76 Schiele drawings and watercolors were not listed by title.
On April 26, 1938, the Nazis passed a decree requiring all Jews to declare their assets over 5,000RM.  According to the law, these Jewish assets were to be available to the Reich at the pleasure of Reichsmarshall Goering.  Each Jew was to declare the assets until the assets were gone or until the Jew had left the Reich.  On June 30, 1938, while in the Dachau Concentration Camp, Fritz was forced to execute a power of attorney (Vollmacht) permitting his wife to liquidate his assets.   Shortly thereafter under Nazi pressure and with her husband in a concentration camp, Fritz's wife Lily filed Jewish Property Declarations declaring Fritz's property, including the art collection with the Kieslinger inventory.  
Following Kristallnacht, the Nazis passed a decree forbidding Jews to buy or sell property and requiring the appointment of Aryan trustees to liquidate their property.  On January 1939, attorney Ludwig Rochlitzer wrote to Elisabeth Grunbaum, stating that the Nazis had appointed him to be the guardian of the "whole property" of the Grunbaums.

Thus, as of January 1939, Fritz and Elisabeth had lost control of their property as a matter of Nazi law.
The last Grunbaum Jewish property declaration was filed in June 1939.   Nazi-era export records show that a Nazi-controlled freight forwarding company named Schenker had possession of Fritz's art collection.  However, a lack of customs stamps on the export application showed that the art collection never left Vienna while the Nazis were in control.
Fritz died in January 1941.  In Nazi-era probate proceedings following Fritz's death, Elisabeth declared, under penalty of perjury, that Fritz had no property at the time of his death.  Elisabeth was deported to Maly-Trostinec, a death camp in Minsk in October of 1942.   She lasted so long because she had real property in Slovakia, and this took some time to sell.  The Nazis waited until a Jewish person had sold every last bit of property, including life insurance policies, before murdering them.
In the provenance of the Drawing, Schenker's possession is critically important, because it is the last place the Drawing was before it surfaced in Switzerland in 1956.  From court filings, an excerpt from a Schenker company history below in German with English translation following:
On September 18, 1956, art dealer Otto Kallir bought Dead City III and 18 other artworks by Egon Schiele, including the drawing above from a Swiss art dealer named Eberhard Kornfeld.   Kallir knew that Dead City III belonged to Grunbaum because he'd catalogued Grunbaum as the owner when he wrote a catalogue raisonee of Schiele's oils in 1930.    Even Eberhard Kornfeld's 1956 catalog listed Fritz Grunbaum as the immediate prior owner of Dead City III.

In 1928, Kallir borrowed 22 Schieles from Fritz Grunbaum for an exhibition at the Hagenbund commemorating the 10th anniversary of Schiele's death.   Many of those drawings were in the batch of Schieles Kallir purchased on September 18, 1956.   Kallir knew Fritz Grunbaum well and knew that Fritz was a famous cabaret performer who had been murdered in the Dachau Concentration Camp.   Thus, Kallir knew when he bought this batch of Schieles that they had been stolen by the Nazis from a concentration camp victim.

In 1998, District Attorney Robert Morgenthau seized Egon Schiele's Portrait of Wally and Dead City III when those works were on loan from Austria to the Museum of Modern Art.  Because Austria successfully questioned the standing of the claimants to Dead City III, the work was returned to Austria where it remains - although stolen from Fritz Grunbaum - in the Leopold Museum today.

In 1998, in the wake of the seizure of Dead City III by Morgenthau, Eberhard Kornfeld was asked where he'd gotten Dead City III and the other Schieles.  For the first time he claimed that he'd bought them in 1956 from Fritz Grunbaum's sister-in-law (despite his 1956 catalogue saying he'd gotten Dead City III from Fritz Grunbaum)  The only problem was that he never produced any invoice from his gallery to Lukacs that included the Drawing.  He produced a mess of obviously forged documents that handwriting experts expressed "massive doubts" as to their authenticity.  I have included a link to the report below.   To produce a final handwriting expert report, the experts needed to see the originals in Berne Switzerland.  However, Bakalar's lawyers and Kornfeld obstructed the experts from independently viewing the documents until court deadlines for discovery had expired.  Thus, no competent handwriting expert has yet been able to conduct a scientifically reliable comparison and thus to prove that the documents Kornfeld produced were forged.   But even among the documents that Kornfeld produced, there was no mention of the Drawing, and thus no documentary reason to include Lukacs in the Drawing's provenance.  Indeed, even assuming the forgeries to accurately list the artworks he acquired, Kornfeld did NOT acquire a 1917 drawing of a headless woman from Mathilde Lukacs.
In early 2008, Dr. Jonathan Petropoulos, a Ph.d from Harvard in history and one of the world's experts on Nazi art looting put together a report on the Drawing's provenance.  The report concluded that the Drawing was stolen.  The report concluded that the Mathilde Lukacs story was untrue.  The report can be found here:   Bakalar put in no expert report, but moved to exclude the report because it was filed after a court deadline.  The trial judge granted Bakalar's motion.

Thus, the trial court in Bakalar v. Vavra never dealt with the substance of the Petropoulos Report and with the proffered expert testimony demonstrating that the Nazis had looted the Drawing and that Mathilde Lukacs never had possesson of the Drawing.

Only time will tell whether Dr. Petropoulos' view of the Drawing's provenance will prevail as the view that is historiographically sound.   Only when handwriting experts gain access to Kornfeld's original documents and examine them with a stereoscopic miscroscope will we have scientifically sound proof of the forgeries.

But as a legal matter, Judge Korman's view of New York law would appear to be the one that the New York Court of Appeals would adopt, following its precedents in Menzel v. List, Guggenheim v. Lubbell, and Matter of Flamenbaum.  New York's Dead Man's statute bars as incompetent testimony relating to a transaction with a deceased, so Kornfeld's self-serving testimony is ordinarily inadmissible under New York law.   Since Kornfeld's own business records contradict the claim that he got the Drawing from Mathilde Lukacs, a New York court might well take the view, based on documentary evidence, that Mathilde Lukacs does not belong in the Drawing's provenance.  But see Bakalar v. Vavra 500 Fed.Appx. 6 2d. Cir. 2012 (unpublished summary order).
 Copyright law, fine art and navigating the courts. All practice, no theory.
Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd Copyright Litigation Handbook on Westlaw