Yale Files Suit To Legalize Vladimir Lenin's 1918 Expropriation of Van Gogh

Today's visit to the Yale University Art Gallery's website reveals that the known provenance of Vincent Van Gogh's The Night Cafe is as follows (in italics):

Le café de nuit (The Night Café)
1888 Artist: Vincent van Gogh, Dutch, 1853 - 1890
Bequest of Stephen Carlton Clark, B.A. 1903
1961.18.34
This object is on view at the gallery.
Note: This electronic record was created from historic documentation that does not necessarily reflect the Yale University Art Gallery's complete or current knowledge about the object. Review and updating of such records is ongoing.

But an astonishing new lawsuit filed by Yale University in Connecticut alleges that Yale has known for many years that this Van Gogh once belonged to Ivan Morozov, a Russian aristocrat. NY Times article here. According to the Complaint, Vladimir Lenin signed a decree in 1918 nationalizing Ivan Morozov's art collection.

Yale is suing Morozov's grandson, who lives in France, for a declaratory judgment that Lenin's 1918 decree confiscating Morozov's collection was legal. The Complaint contains an endless list of publications in which Yale purportedly published its ownership of the Van Gogh, and, as best this reader could tell, always giving Stephen Carlton Clark as the first known provenance.

But the Complaint claims that the Van Gogh passed through the Matthiesen Gallery in Berlin and then through the Knoedler Gallery in New York. Why are the names of these galleries not displayed on Yale's website with the corresponding acquisition dates?

When did Yale learn that this work had been expropriated by Vladimir Lenin? And why does Yale's website continue to contain a misleading provenance that is directly contradicted by a complaint filed in Connecticut federal district court?

The Complaint says that Yale filed this lawsuit in response to a letter from an attorney for Pierre Konowaloff which attached a copy of a complaint to be filed in Connecticut District Court, thus creating the "case or controversy" under 28 U.S.C. Section 2201.

Practitioner's note: Annexed to the Complaint (available on PACER) is an "Order to Appear or Plead Pursuant to 28 U.S.C. Section 1655" that requires the defendant to appear or plead by May 22, 2009. The Complaint is dated March 23 and the order is dated March 25 and recites that the defendant has not yet appeared in the action. This painting has been sitting safely at Yale for 50 years. Unless Yale desperately needs to sell it in the near future, I can't imagine why or how it got an order fast-tracking the case before the defendant had even been served.

Just wait until Rush Limbaugh gets hold of this.

Constitutionality of Copyright Statutory Damages - Free IP CLE on IP Colloquium

Professor Doug Lichtman of UCLA has put together an amazing series of monthly podcast CLE (Continuing Legal Education) programs available for free at http://www.ipcolloquium.com/. These programs can be downloaded and listened to on your Ipod. Following the program, you submit the verification passwords and get CLE from your local jurisdiction.

The February 2009 program on statutory damages was lively, engaging and professionally-produced. Lichtman interviewed Charles Nesson of Harvard, who has taken on the defense of a young person accused of downloading seven songs and then making the songs available for others to copy.

Lichtman then interviews a series of experts on punitive damages, discussing the factors that may go into a jury determination on punitive damages.

In concluding the program, Lichtman steps outside the traditional role of moderator and concludes that Nesson is wrong. I am not entirely persuaded that Nesson is wrong, and I think that he made some powerful and troubling arguments that were perhaps too quickly discounted. The facts in Nesson's case are quite troubling, as are the RIAA's attacks on minors and the impecunious. I think it likely that some federal judges may agree that the RIAA has gamed the federal court system by aiming its efforts at those who can't fight back.

I look forward to checking out the IP Colloquium's other programs. If the program on statutory damages is typical, these programs should be an entertaining, thought-provoking way of getting CLE credits.

Hot News Misappropriation and Copyright Law

In Associated Press v. All Headline News Corp., 2009 WL 382690 (S.D.N.Y. Feb. 17, 2009), Judge Castel considered a Rule 12(b)(6) motion to dismiss AP's complaint alleging (1) violations of the Copyright Act 17 U.S.C. 106 (2) violations of the DMCA 17 U.S.C. 1202, the Lanham Act Sections 1114 and 1125(a) and New York common law.

AHN, found here was sued by AP, found here. It was alleged that poorly-paid Florida employees took AP content, removed copyright notices, reworked it and republished it as their own.

The court denied the bulk of the motion to dismiss, finding that AP's claims for misappropriation and unfair competition under New York law are not preempted by the Copyright Act. The court dismissed the Lanham Act claims, finding that AHN did not infringe AP's trademark by wrongfully deleting its trademark from its news reports.

The decision finds the "hot news" misappropriation theory under New York law still viable. Along the way, the court performs a nice conflict of laws analysis between Florida and New York law. Quoting NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997) the court found:

under New York law, a valid, non-preempted claim for misappropriation arises when:
(i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant's use of the information constitutes free riding on the plaintiff's efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; 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.

The court applied New York - the law of the "place of injury" - that is, the place where the plaintiff suffered economic loss because of the misappropriation of its ideas.

The court also permitted the DMCA claim to proceed - holding that removing copyright notices from published articles violates the statute's clear language and rejecting the defendants' arguments that DMCA violations are limited to removing encryption and other digital coding.

This is a case that is likely to be cited for its conflict of laws analysis.

UNICOR Slave Laborers May Not Sue U.S. Government for Copyright Infringement

As of 2006, UNICOR Federal Prison Industries Inc. employed over 21,000 inmates and had net sales of $717 million. Source: Wikipedia. Information about UNICOR, founded in 1934 is available on the Bureau of Prisons website here. UNICOR has been criticized for having prisoners engaged in slave labor performing toxic e-recycling jobs here and here.

In Walton v. U.S., 551 F.3d 1367 (Fed. Cir. Jan. 28, 2009), the Court of Appeals for the Federal Circuit decided that the U.S. had not waived sovereign immunity over claims of copyright infringement from persons engaging in labor for UNICOR.

Robert James Walton made an American Eagle calendar for the General Services Administration while in prison. UNICOR, apparently in violation of a statute forbidding it to sell to private purchasers (according to BOP site here), sold the calendar to private purchasers.

The United States has waived sovereign immunity as follows (italicized language from the opinion):

Section 1498(b) of Title 28 of the U.S.Code provides that the “exclusive action” for infringement by the United States or its specified affiliates (including a government corporation) of “the copyright in any work protected under the copyright laws of the United States” shall be a suit in the Court of Federal Claims “for the recovery of his reasonable and entire compensation as damages for such infringement.” This jurisdictional grant is immediately followed by this language:

Provided, however, That this subsection shall not confer a right of action on any copyright owner ... with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used[.]28 U.S.C. § 1498(b).

In other words, a copyright infringement suit cannot be maintained against the United States, if the copyrighted work was prepared (1) while in the “employment or service” of the United States and (2)(a) as part of the official functions of the employee or (b) in whose preparation government “time, material[s], or facilities” were used.Walton v. U.S. 551 F.3d 1367, 1369 (C.A.Fed.,2009)

Walton relied on case law saying that prisoners were not "employees" of the federal government. According to the decision, prisoners receive "compensation ranging from $.023 to $1.15 per hour and various other benefits."

The Federal Circuit concluded that Walton's work was done "in the service of the United States" and found the U.S. had not waived sovereign immunity.

The decision appealed from (31 pages on Westlaw) has very good language for a plaintiff who doesn't have a copyright registration certificate and who later cures this by procuring one and either amending or supplementing the complaint. Walton v. US., 80 Fed. Cl. 251 (January 23, 2008).

I don't know how the appeal was briefed, argued and decided five days later. Appellant was represented by Covington & Burling.

Berlin Court Returns Poster Collection to Jewish Heir

A Berlin administrative court has ruled in favor of Peter Sachs, an heir of a victim of Nazi art looting. Article here.

The decision requires the German History Museum to return thousands of posters, including one of Simplicissimus's Red Bulldog.

According to the Kulturkampf blog:

Simplicissimus was a German magazine that began in 1896 and ran until 1967. It was characterized by a sharp, satirical style that was enhanced by its stylish imagery. The paper's mascot, the red bulldog by Thomas Theodore Heine, is an almost iconic image, and its original is at MoMA in New York.

It is good to see the anti-fascist bulldog's return to its Jewish owner after so many years.

Austrian Jewish comedian Fritz Grunbaum founded an antifascist political cabaret called Simplicissimus in Vienna. When Hitler invaded Austria on March 12, 1938, Grunbaum was arrested by the Gestapo and put in the first transport to Auschwitz. Today the Vienna cabaret is known as Kabarett Simpl.

Simple justice can take a long, long time.