5Pointz Ruling Upheld (UPDATED)

The Second Circuit has upheld the $6.75 million judgment in favor of the artists in the 5Pointz lawsuit. Eileen Kinsella has the story here. (The artnet headline calls the decision "stunning," but an affirmance of a district court decision is never that stunning. Although this one may have surprised some people.) The decision is here.

The part of the decision getting the most attention -- part of what the Court calls the "crux of the parties' dispute" -- is that temporary works of art are eligible for VARA protection. That seems clearly right. The Court mentions Christo's "The Gates" for example.

I've always been more interested in the damages aspect of the case. The district court found it could not quantify the damages, so the $6.75 million was all statutory damages. The Second Circuit now has ruled that that was appropriate -- that in a case where actual damages could not be established, a nearly $7 million statutory damages award was justified. Now, it may be the facts of this case were so unique and so egregious that it won't have a wider impact -- basically what happened is that early in the litigation the artists got a TRO preventing the demolition of the site, it expired, and, while the district court was considering their application for a preliminary injunction to replace it, the developer had the work painted over, "without any genuine business need" to do so, "simply, as the district court found, an 'act of pure pique and revenge.'" But the idea that significant statutory damages can be awarded in a VARA case even where actual damages can't be proven could be a big deal.

UPDATE: Some reactions. First, Derek Fincham:

"I am always surprised when I encounter art lawyers and academics who are critical of the idea of moral rights. They will often make the argument that artists do not want or need moral rights, and developers like Wolkoff will not allow art anywhere near their buildings ever again. But this elides the reality, these condominium developments have as I understand it been built to take advantage of the newly gentrified neighborhood, and the new ‘luxury’ development will still be called 5 Pointz, and feature aerosol art. The art will happen no matter what, this ruling just gives the artists vindication for the personality of these artists that was bound up and integral in these images. Developers like Wolkoff claim that these moral rights damage their property rights; but a moral right is not an economic right. Instead it accounts for the psychological suffering which takes place when an artist’s art has been harmed in some way."

And Sergio Muñoz Sarmiento:

"Big news? I think so. And I think developers, in fact, any commissioning party commissioning an art work by an artist should be processing right about now."

"Hackers posing as a veteran London art dealer tricked a Dutch museum buying a John Constable painting into paying $3.1 million into a fraudulent bank account."

"Scamming their way into the middle of months of negotiating emails between Simon C. Dickinson Ltd. and Rijksmuseum Twenthe, the imposters persuaded the museum to transfer the funds to a Hong Kong account."

"This case is a classic example of someone who held himself out to be a dealer trying to exploit an artist at the outset of his career. Mr. Fordjour has always acted in good faith with respect to Mr. Blumenthal and fully expects to prevail in this lawsuit."

Dealer Robert Blumenthal is suing artist Derek Fordjour over a deal he claims they made in 2014 to buy 20 paintings for $20,000. Not $20,000 each -- $20,000 in total. He got 13 of them and is suing for the other seven. Eileen Kinsella has the story here.

"While this lawsuit might not be quite as egregiously bad as some of Liebowitz's other lawsuits, it's still pretty bananas."

Mike Masnick: Copyright Troll Lawsuit Over Duct Taped Banana Picture.

Gagosian-Tananbaum Suit Settled

This is the one with the ouroboros, and where the Judge had said: "Next year, Mr. Tananbaum will go buy more art from Mr. Gagosian. I’m the only one getting agita." Which, based on the joint statement issued by Gagosian and Koons ("Mr. Tananbaum is a passionate collector, and we look forward to our continuing relationship"), appears to be correct (though I can't speak to anybody's agita levels but my own). Story here.

"How the Legal System Left Artist Purvis Young’s Beneficiaries Empty-Handed"

Story here. Some background here.

Muddier

Portland Press Herald: "Evidence of deleted emails muddies fight over Robert Indiana’s estate."

Previous mud-level status reports here and here.

"The UK artist Bruce Munro, best known for his immersive, light-based installations, is suing the Florida-based Fairchild Tropical Botanical Gardens for copyright infringement."

Story, and side-by-side images, here.

"Caught smuggling Picasso on his yacht, Spanish billionaire collector gets €52m fine and 18 months in prison"

"According to Spain’s strict heritage laws, permits are required for exporting items more than 100 years old, which can be classified as 'national treasures.'"  They're serious about the public trust over there.

"According to the gallery director Karen Marks, a lawsuit about Maier’s estate has been settled, and the photographs are back on the market, with a commission from each sale going into an escrow account managed by Cook County, Ill."

A bit of art law news buried in a piece on the current Outsider Art Fair. Background here.

Shed employees move to unionize

Story here. More here: "Over the past year, a wave of employees at museums across America have pushed to unionize. Much of the action has been centered on New York, with workers at the New Museum, the Guggenheim Museum, the Brooklyn Academy of Music, and elsewhere having successfully formed unions, though the movement has also begun reaching other cities. Employees at the Frye Art Museum in Seattle unionized, and the Museum of Contemporary Art Los Angeles voluntarily recognized its workers’ efforts to form a union."

"Under the rules, they have to register with the government’s tax agency, and dealers and auctioneers must establish the identity of the 'ultimate beneficial owner' — meaning both seller and buyer — before entering into a transaction."

New anti-money laundering regulations in the UK. They went into effect Friday. NYT story here. Kenneth Mullens of Withers here. More here.

"Marciano Foundation Worker Files Suit Claiming Mass Layoffs Were Illegal"

New York Times story here. Background here.

"Court Orders Art Dealer Asher Edelman’s Company to Pay $1 Million in the Botched Sale of a Keith Haring Painting"

Story here. Decision (on summary judgment) here. After receiving an invoice, Edelman wrote to the seller, "As thirty days from your invoice will pass tomorrow, I need to cancel the transaction because of non-payment to me," but the Court points out in its decision that that's not a thing: "While Edelman's notice of cancelation hints at some legal right to do so … Edelman testified at his deposition that he understood 'there's no specific law' authorizing his cancelation. Rather, it was Edelman's understanding that '[t]radition in the industry' permitted such cancelations."

Inigo Update

Athena Art Finance has joined the fray:  A Prominent Art-Finance Company Says Embattled Dealer Inigo Philbrick Owes It $15 Million for a Loan He Never Paid Back.

Background here. "Philbrick’s whereabouts are currently unknown and his two former gallery spaces, in Miami and London, have been shuttered. His Miami attorney recently filed a motion to withdraw as counsel, writing that the dealer has 'failed to fulfill his obligations.' The UK High Court has granted requests from three separate plaintiffs to freeze Philbrick’s assets."

"UMB Bank has lost Thomas Hart Benton art, mismanaged the artist’s trusts, lawsuit says"

Story here.