From Murder To Museums: The Pursuit of Nazi Looted Art - August 16 Southampton NY

Please join me in Southampton New York on August 16 at the Rogers Memorial Library at noon for a presentation on Nazi looted art, the legacy that it has left our nation's museums and cultural institutions, and the controversies over restitution that are now engaging our nation's courts.  Learn how Abraham Lincoln's contribution to international law is now being used to pursue artworks stolen by Adolph Hitler and the Nazi Regime.  To register online visit http://alpha2.suffolk.lib.ny.us/iii/calendar/month/C&P=%7C1&R=80 by phone (631) 283-0774 ext 523.


Raymond Dowd Nazi Art Looting Lecture August 16 Southampton NY by Ray Dowd on Scribd

www.dunnington.com
 Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 

Association of Corporate Counsel of New Jersey: Museum Night With Nazi Looted Art & Copyright Litigation Handbook

Adds intrigue and mystery to

 

Museum Night:  Practical Lessons for In-house Counsel

 

By adding the fascinating topic of

NAZI LOOTED ART

...new legislation pending…

 

Hear all about it from Ray Dowd, who has handled World War II-era restitution cases

 

 

and who is quoted in Newsweek Magazine article October 4, 2016

http://www.newsweek.com/2016/10/14/nazi-looted-art-shepherdess-bringing-sheep-university-oklahoma-505736.html.

 

join us in a lively conversation with RAY DOWD, author of Copyright Litigation Handbook (9^th Ed. Thomson Reuters 2015-2016)
and specialist in restitution cases

“History is being buried because the courts are closing the doors,” Dowd says.

Ray will also explore how fine art can provide practical insights on protecting intellectual property in the digital age

***A copy of Ray Dowd’s book will be raffled and discounts extended to all attendees.***

Where:  The Morris Museum
6 Normandy Heights Road, Morristown, NJ
When:  October 26, 2016 from 5:30-8:30PM (dinner and discussion)

                   
1+ hour CLE credit

there is no cost for this event, please come as our guest for dinner and discussion

CLICK HERE TO REGISTER

 www.dunnington.com
 Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 

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. AGENDA 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 Faculty: 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

www.dunnington.com
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
 

Art Litigation: Pornucopia Scandal and Regulation of Nudity in Art

The Pornucopia gallery show is creating a furor on New York's Lower East Side. Artinfo reports here on New York City's growing prudery and Congressman Anthony Weiner's attempt to remove a 90 year-old statue from a Queens plaza. More from CBS and video here.

Here is a link to an AP story on former AG John Ashcroft concealing the breasts of the statutes at the Justice Department, Congressman Weiner's action is reminiscent of Ashcroft's move.

Weiner has long harbored mayoral ambitions, spending his time, money and energy on attacks on public art appear to be part of his vision for New York City.

More on litigation and controversies involving fine art here.
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Copyright and Fine Art: Sept 14 CLE Program at New York County Lawyers' Association

Sept 14:  Copyright and Fine Art Continuing Legal Education Program

Location:
New York County Lawyers' Association
14 Vesey Street, 2nd Floor Auditorium

Course ID: C091410
Number of Sessions: 1
Credits: 3 MCLE Credits
3 MCLE Credits (NY and NJ*): 3 Professional Practice; Transitional and Non-transitional

Course Description:
Today's digital world relies increasingly on works of fine art. Fine art and the creative process relies on appropriation, mimicry, satire, parody and collage. How does the Copyright Act and the Visual Artists Rights Act fit in? What materials can an artist use? To what degree may an artist protect the integrity of artworks? How does anyone make money?

This lively and entertaining program considers case law involving works of fine art to illustrate current controversies in copyright law that affect painting, sculpture, architecture, photography and video. The principles considered, such as "work for hire" and the "fair use doctrine" apply to all creative and commercial endeavors that use copyrighted materials and should be of interest to those in intellectual property, business law, employment law and litigation.

Faculty:
Program Chair & Faculty: Raymond J. Dowd, Dunnington Bartholow & Miller LLP
Moderator: Hon Stephen G. Crane (Ret.), JAMS Mediator

Raymond Dowd is a member of Dunnington Bartholow & Miller's intellectual property, art law, 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. 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. His 2009, Copyright Litigation Handbook (West 2010), was called "an indispensable guide" by The New York Law Journal.

Purchase Copyright Litigation Handbook from West here  

Art Litigation: Trademarks in Works of Fine Art NaziSexyMouse Deemed Legal In Poland

Max Papeschi's NaziSexyMouse

Max Papeschi's Faschion

Today the Baltimore News.net reported here that a spokesperson for Poland's public prosecutor found that an art gallery's display of artist Max Papeschi's NazySexyMouse was legal.  Poland lost six million lives due to Nazism.  My earlier post on the controversy here.
More Max Papeschi here (nuclear war at Disneyland) and here.

Below Papeschi uses Hitler to hawk a Chanel-type perfume.




Purchase Copyright Litigation Handbook from West here

Trademarks in a Copyrightable Work: TM Owner Shuts Down Museum Exhibit

Museum Exhibits of Sculptures Made From Louis Vuitton Fakes Shut Down

Sculptures of locusts removed from a museum in Japan after the designer complained, HT Techdirt, stories here and here.

Making fine art from materials in which trademarks appear is a common problem.  These locust sculptures were said by the artist to comment on the relationship between authenticity and imitation.

Does an artist need to purchase REAL Louis Vuitton to make a statement about how fake Louis Vuitton is?How is displaying something in a museum perceived to be a commercial endorsement by Louis Vuitton?

Sculptural works are protected by copyright law.  17 USC 102 a 5

§ 102. Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.


 Purchase Copyright Litigation Handbook from West here  

My Favorite Fair Use Video Mashup: Mona Lisa Descending a Staircase

Fifth Circuit on Corporate Logos, First Amendment, VARA and Copyright, Utilitarian Objects and Ralph the Cactus Planter

http://www.austinchronicle.com/

In Kleinman v. City of San Marcos, --- F.3d ----, 2010 WL 447894 (5th Cir. 2010 Feb. 10, 2010), the Fifth Circuit decided the question of whether Ralph the Cactus Planter, a junked Oldsmobile '88 filled with dirt, planted with cactus and covered with paintings by artists commissioned to include the message "make love not war" was protected by the First Amendment or a work covered by the Visual Artists Rights Act ("VARA").

The Fifth Circuit looked to the Second Circuit's analysis in Bery v. Bery, 97 F.3d 689 (2d Cir. 1996) and adopted Bery's distinction between works of fine art and works of decorative art.   The court found the Junked Vehicle statute to survive intermediate scrutiny under a First Amendment analysis. 

The court found that VARA did not apply, since Ralph was a distinctive corporate symbol of the Planet K business (novelty shops).  VARA excludes "any merchandising item or advertising, promotional, descriptive, covering, packaging material or container."    The court upheld the district court's finding that Ralph was "promotional material" and thus VARA did not apply.

In the court's words:

Irrespective of the intentions of its creators or Planet K's owner, the car-planter is a utilitarian device, an advertisement, and ultimately a “junked vehicle.” These qualities objectively dominate any expressive component of its exterior painting. Appellants concede that the car falls within the definition of the San Marcos ordinance. Moreover, the Eighth Circuit, confronted before Hurley with a wrecked auto that was displayed streetside to remind the public how the owner's son had been killed, had no difficulty finding that the auto's removal under a junked-vehicle ordinance survived intermediate scrutiny. Davis v. Norman, 555 F.2d 189 (8th Cir.1977). When the “expressive” component of an object, considered objectively in light of its function and utility, is at best secondary, the public display of the object is conduct subject to reasonable state regulation. We therefore pretermit “recourse to principles of aesthetics.”

The decision is problematic for artists and lacking in copyright analysis.   A chassis of an car that has been almost completely transformed is not at all a "utilitarian object".

Marcel Duchamp Fountain, 1917 photo Alfred Steiglitz

(courtesy Wikipedia).

The artwork would appear to be a sculptural work and have sufficient copyrightable elements to be protected as such under federal law.  Two painters were commissioned to paint the work.  The court's VARA analysis seems problematic, compare the First Circuit's thoughtful analysis in Buchel v. Mass MoCA, discussed here.   Query also how narrowly tailored the junk vehicle statute really is.

Why put a fence around Ralph?  Can the state really put a fence around every art installation that contains part of an old car?

Copyright and Fine Art: Federal Bar Association Conference in Hawaii This Friday December 11

This Friday I will be speaking at the Federal Bar Association's First Annual Hawaii Conference and discussing inter alia the Shepard Fairey case involving the Obama/Hope poster.   For more information, check out:

http://www.fedbar.org/hawaii.html

December 11, 2009


First Annual FBA Hawaii Conference

Location: The Royal Hawaiian Hotel

Speakers: Lawrence Baca, FBA President; Hon. William A. Fletcher, Ninth Circuit; Hon. Gerald Bard Tjoflat, Eleventh Circuit; Prof. Kathleen Sullivan, Stanford Law; Prof. Linda Krieger, Richardson School of Law; Robert Kohn, FBA Federal Litigation Section; Raymond Dowd, FBA Southern District of New York Chapter; Simeon Baum, FBA Alternative Dispute Resolution Section; Claudia Bernard, Chief Ninth Circuit Mediator

CLE: 6.5 CLE hours on federal appellate, trial, and ADR topics. Program includes continental breakfast, lunch, and evening reception.

Registration: View schedule at a glance or complete conference program. Register online or download printable form. For more information, contact Melissa Stevenson at mstevenson@fedbar.org or (571) 481-9100.



Hotel Accomodations

Conference Hotel: The Royal Hawaiian, A Luxury Collection Resort. Conference room rate: $250 per night, garden view, plus applicable taxes, guaranteed through November 11, 2009, thereafter on space available basis (special rate upgrades also available). Reservations call: (800)-782-9488 or (808) 921-4621. Alternative: Hilton Hawaiian Village, Beach Resort & Spa. Walking distance to conference hotel. Special room block rate of $161 per night, plus applicable taxes, guaranteed through November 11, 2009, thereafter on space available basis. Reservations call: 808-949-4321, use Group No. 610, Group Confirmation No. 1000537328.

Cooper Union and Marcel Duchamp

I gave a lecture on copyright and fine art last week at Cooper Union. The audience was an interesting mix of fine art and engineering students and the questions were varied and challenging. I learned more about my art examples - a student corrected me on the source photograph for a Vik Muniz memory drawing, and the program's Director, Robert Thill, happens to be particularly well-informed on Marcel Duchamp's artworks and career.

In my lectures, I cite Marcel Duchamp as the originator of the "Readymade" - which is generally credited with sparking the major debate of "what is art" that characterized the last half of the 20th Century. I show a photograph of the urinal (known as the "Fountain") that Duchamp submitted to an art show, which was famously refused.

Professor Thill referred me to an online journal called: "Tout-fait: The Marcel Duchamp Studies Online Journal, found at http://www.toutfait.com/. He referred me to an article called Marcel Duchamp: A readymade case for collecting objects of our cultural heritage along with works of art. by Rhonda Roland Shearer.

The article and journal is sponsored by the Art Science Research Laboratory on Greene Street. This group has studied all of the objects that Duchamp claims that he simply purchased from mass production and then used as artworks. From the little I read, it appears that Duchamp may have actually constructed the urinal himself, as well as many of the other objects that he claimed he simply found.

In my lecture, I use the Duchamp Fountain/urinal as an example of an artwork which is questionably a work of art and not protectable by copyright, both because it is a useful object and because it lacks protectable original authorial expression. The Tout-Fait journals are fascinating reading, and fascinating to know that Duchamp may have sculpted that urinal, since there was no urinal of that description commercially available at the time. Thanks, Cooper Union!

Visual Artists Rights Act - Right to Display Works That Do Not Yet Exist

The Massachusetts Museum of Contemporary Art sued Swiss artist Christoph Buchel over an installation called Training Ground for Democracy. Buchel is an installation artist who allegedly did not finish an installation piece. The MOCA wanted the right to display the unfinished installation that it had already spent $300,000 for.

In its brief in support of its summary judgment motion, Mass MOCA's counsel Skadden Arps found a couple of cases for the proposition that "VARA most decidedly does not cover works that do not yet exist." citing Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 329 (S.D.N.Y. 1994) rev'd on other grounds, 71 F.3d 77 (2d Cir. 1995) cert. denied, 517 1208 (1996) and Flack v. Friends of Queen Catherine Inc., 139 F. Supp.2d 526 (S.D.N.Y. 2001).

To find out whether the court agree with the argument that VARA did not cover non-existent works, I checked the PACER system for the U.S. District Court of Massachusetts. The court's decision was non-existent.

There was a notice of appeal, appealing from "a final order and/or judgment (or alternatively, order denying injunctive relief) announced from the bench on the 21st day of September, 2007 by the Honorable Michael A. Ponsor (1) denying Buchel's motion for summary judgment and request for injunctive relief under . . . . VARA . . . 17 U.S.C. Section 106A, and the Copyright Act Section 101 et seq. and (2) granting plaintiff's relief in its entirety, allowing it to display the work at issue with a disclaimer."

Practice Point: When a judge rules from the bench, counsel can do three things to get a piece of paper from which to appeal. First, order an expedited copy of the transcript from the court reporter. 1. submit the transcript to the judge and ask the judge to "so order" it; 2. submit a proposed order to the judge according to the judge's rules or 3. ask the judge whether the judge will be issuing a written order or decision so that you can appeal it.

Appeals generally require an appealable paper, that is, an existing written decision from a judge from which you appeal. It is analogous to the fixation requirement in copyright law.

Submitting a proposed order is generally the best and most elegant way of proceeding, and if it is not life or death and the court's discussion was lengthy, it will almost certainly help your accuracy to have the transcript. It allows you to get back to your office, clear your mind, and draft something that will make the court's decision clear. It also may be an opportunity to clarify an issue that you were not clear on from the court's oral comments.

I can't wait to see Mass MOCA's display of this non-existent work, to which VARA does not apply, and to see the disclaimer.

Some of the artist's demands in pursuing the work are found at Exhibitionist.

-The artist will not give permission to show an unfinished project nor will the artist allow the museum to show any work in progress, as the museum had suggested in previous discussion related to the postponed opening date.
- Money needs to be raised and in place to finish the project as it was proposed and completed.
- A projected budget for the second round will be sent, if an updated to punch list with very detailed photographs of the installation and the updated list of items that have been organized has been sent.
- The additional monies raised must cover the costs for ALL elements and ALL structural elements, which are clearly defined and which were much discussed. This money would have to cover the cost of the salaries, flights, per diem and housing for the 1st and 2nd round for assistants and the replacement crew and equipment to be hired.
- There is NO negotiation about the scope of the project. It will be realized as proposed.

Sounds like the non-existent Training Ground for Democracy has lessons for us all about the nature of democracy. The above photograph (of the non-existent exhibit) is found on Mass Moca's website. Does a photograph of a non-existent work exist? For more on Buchel, his work and the case, check out Anaba.

Richard Prince - Practicing Without a License

In 2005, a Richard Prince photograph of a Marlboro cigarettes advertisement was auctioned for over $1.2 million - a world record. He photographed the Marlboro ad without permission removing the identifying marks. In a 1977 essay, Prince proclaimed that he was "practicing without a license" - referring to his practice of stealing other people's pictures and publishing them as his own.

Prince is having a one-man show at the Guggenheim museum, titled "Spiritual America". The title of the show comes from disturbing nude photograph of a prepubescent Brooke Shields taken by photographer Gary Gross that Prince "rephotographed" and presented in a gilt frame in a gallery on the Lower East Side. The photograph is part of the Guggenheim show and reprinted in its catalog.

Prince likened his taking of others' photographs to sampling someone else's 8-track tape, he could manipulate his "8 -track photographs" in the following way:

1. the original copy
2. the rephotographed copy
3. the angled copy
4. the cropped copy
5. the focused copy
6. the out-of-focus copy
7. the black-and-white copy
8. the color copy

Prince's show is interesting, disturbing, and challenging. In Nancy Spector's catalog essay, she likens Prince's acts to the act of Marcel Duchamps submitting a urinal as part of an art show (Duchamps called this "readymade") - and this act is widely considered with opening up and introducing the art of the 20th century. Is Prince a Warholian or Duchampian genius - or a fraud? If auction prices, income, and museum shows are a measure - Prince is a genius of the highest order. He certainly has his critics, though.

As we move into a world where digital photography and sophisticated consumer-level photo retouching software is available, appropriating and manipulating images has become a widespread phenomenon. His appropriation may foreshadow the copyright battles of the future, and a weakening of the visual artist's copyright.

But as you go up the Guggenheim spiral, you will note less wholesale appropropriation, and more borrowing of bits and pieces. Once an artist is successful and no longer judgment proof . . . remaining an outlaw becomes problematic. His latest series consists of scanning faces from the works of De Kooning and sticking pornographic cut-outs onto the bodies.

Maybe we will all see "moral rights" in a different light after this show. See it and judge for yourself.