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.


Purchase Copyright Litigation Handbook from West here  

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


Purchase Copyright Litigation Handbook from West here  

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”



 Purchase Copyright Litigation Handbook from West here  

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.

 Purchase Copyright Litigation Handbook from West here  

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