76th Anniversary of Kristallnacht: Murder, Mystery and Masterpieces: Ethical Implications of WWII Stolen Art

The Brandeis Association and the Queens Women’s Bar Association 

Present: 

Murder, Mystery & Masterpieces:

The Ethical Implications of World War II Stolen Art

Guest Speakers:

Professor John Q. Barrett, St. John’s University School of Law

Raymond J. Dowd, Esq., Dunnington, Bartholow & Miller, LLP

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NOVEMBER 6, 2014,  6:00 p.m. to 9:00 p.m.

Queens County Bar Association,

90-35 148^th Street, Jamaica, NY 11435

Light Kosher Supper at 5:30

2.5 CLE Credits in Ethics and Professionalism. This event is free.  Registration is required for all participants before November 1, 2014.

Register at: www.brandeisassociation.org

 

This program commemorates the 76th Anniversary of Kristallnacht

 

Thank You To Our Co-Sponsors:

The Federal Bar Association: Eastern and Southern District of New York Chapters

 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 

Copyright Law - Ninth Circuit: Was Raging Bull Asleep At the Wheel? An Unusual Laches Case

Copyright Infringement, Unjust Enrichment, Laches, Equitable Estoppel, Motion for Summary Judgment, Rule 11 Sanctions, Attorneys Fees

Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F.3d 946 (Ninth Circuit August 29, 2012).  Petrella owns renewal copyright in Raging Bull book and two screenplays.    Her father wrote the book and screenplays and died in 1981.  She filed a renewal application in 1991.  In 1998 her attorney wrote to defendants claiming that Raging Bull was an infringement of her copyright.  An exchange of letters was had, ending in 2000.   Petrella filed this action in 2009.  The district court granted summary judgment on the equitable defense of laches.  The Ninth Circuit affirmed.   The Ninth Circuit opined that laches bars a copyright owner’s claim where a plaintiff, with full knowledge of the facts, acquiesces in a transaction and sleeps upon his rights.  A defendant must prove (1) the plaintiff delayed in initiating the lawsuit; (2) delay was unreasonable; and (3) the delay resulted in prejudice.   Plaintiff claimed that she had delayed for personal reasons, together with the fact that the film had not made any money.  The Ninth Circuit analyzed two types of prejudice: expectations-based prejudice and evidentiary prejudice.  The Ninth Circuit focused on the many investments that the producers continued to make in Raging Bull during the relevant time period and found that they had been prejudiced caused by Petrella’s delay.  The Ninth Circuit affirmed the district court’s denial of damages.  The opinion provoked a dissent that pointed out that the Ninth Circuit is the jurisdiction most hostile to copyright owners and out of synch with other jurisdictions.   The dissent reasoned that the majority opinion confounds the doctrine of equitable estoppel with laches and misuses the laches doctrine in a manner that is too broad and vague in a manner not intended by Congress.

www.dunnington.com
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

ART LAW: STOLEN ART & LITIGATING HOLOCAUST-ERA EXPROPRIATION CLAIMS - Los Angeles September 11, 2013

I will be speaking at a panel sponsored by the Federal Bar Association in Los Angeles at Latham & Watkins.

Time: 5:30 p.mRegistration: 5:00 p.m.
A moderated panel discussion featuring leading authorities discussing claims to Nazi-looted artworks; the legal and practical obstacles facing claimants of property stolen by the Nazis; and the moral and other issues confronting institutions possessing property against which claims have been made.
Location: Latham & Watkins
355 South Grand Avenue
Los Angeles, CA 90071-1560
Cost: Cost: FBA Members $60 - FBA Non-Members $70
Government Employees: $40
FBA Member Group of 10 $500
Federal Judiciary and one guest - Complimentary
Federal Judiciary - Additional Guests $25
(Parking Included)

For full flyer: StolenArtPanelFlyer.pdf

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 Law - DePaul Article: It's OK for US Museums To Sue Jews Over Artworks Stolen During the Holocaust

I was provided with an article from Volume XXIII of the DePaul Journal of Art, Technology and Intellectual Property Law (2013) at page 279.   The article is written by Simon Frankel, a partner of Covington & Burling who was counsel to the Museum of Fine Arts Boston and his associate Ethan Forrest.  The article argues that it is ok for museums to sue Jews make sure that their rights to reclaim stolen artworks in museum collections are cut off.

I provide a contrary viewpoint in my recently-published article Nazi Looted Art and Cocaine: When Museum Directors Take It, Call The Cops.

I think that any museum directors who are suing Jews and asserting statutes of limitations and laches to avoid scrutiny of stolen artworks in their collections ought to be put in jail, particularly since taxpayers finance the cost of each acquisition of stolen art.  When Leonard Lauder announces a murky "billion dollar gift" what he means is that he won't pay a billion in taxes and will dump a lot of art that he bought in Switzerland on the cheap and potentially can't sell on the market on unsuspecting taxpayers and that years from now we run the risk of museum directors crying about how they can't figure out where the artworks came from and that when Jewish families invoke Holocaust-era claims, the museums can hire expensive lawyers to deny that the Holocaust ever happened, much as museums are now doing.  A billion dollar loss to New York City taxpayers means fewer schools, crappier roads, and that another billionaire gets a free ride for offloading potential junk in his portfolio.

We need to stop museums from accepting junk provenances: those that are not published and based on readily-available documents and that can be subjected to peer review, as the ethics codes of professional historians require.  The culture of museum secrecy and obfuscation has to end.

Lootedart.com has given my article top billing here.

Center for Art Law calls it an article with "a cheeky title and noble purpose" in a post titled "Attorney's Appeal for Intervention Against Museums Addicted to Nazi Looted Art" here

Jasper Jottings focus on my attack on museums enabling tax cheats here

Sullivan & Worcester's Art Law Report called my arguments "compelling" and the article "noteworthy" pointing out that it raises arguments that museums cannot easily answer here

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 

Murder, Mystery and Egon Schiele's Dead City February 8 at Jewish Federation of San Antonio

Thanks to the Federal Bar Association and the Jewish Federation of San Antonio, I will be speaking at the Jewish Federation of San Antonio on February 8 about Egon Schiele's Dead City and the mystery and litigation that it has spawned since District Attorney Robert Morgenthau seized it in 1998 at the Museum of Modern Art.
The MoMA's possession and concealment of artworks stolen from Holocaust survivors has come under fire recently, check out William Cohan's MoMA's Problematic Provenances in December ArtNews here.
For more stolen art by Egon Schiele at the MoMA visit Art Stolen from Fritz Grunbaum.

For the latest brief filed last week in Bakalar v. Vavra, an appeal to the Second Circuit arguing that the District Court's application of the laches doctrine to award a stolen drawing to a Massachusetts art collector, see the embedded document below.
11-4042-Cv Appellant's Brief and Special Appendix

www.dunnington.com
 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West 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?