Tuesday, October 31, 2006

"The Law Firm of Hubris Hypocrisy & Greed"

Fortune magazine has a long story on the troubles at famed class-action law firm Milberg Weiss, which was recently indicted for allegedly paying the plaintiffs in their cases millions of dollars in illegal kickbacks. Interestingly, it was a case of art-related insurance fraud that put in motion the chain of events that led to the indictment.

As Fortune tells the story, it all started with a report of domestic abuse in a Cleveland suburb in 1996. The alleged abuser was James Little, an attorney with Arter & Hadden, a large (but now defunct) Cleveland firm. The complainant mentioned to police that Little, in addition to having a serious crack habit, was also in possession of millions of dollars worth of stolen paintings. In February 1997, Little struck an immunity deal and led the FBI to a storage locker rented by his mother. Inside were Picasso's "Nude Before a Mirror" and Monet's "The Customs Officer's Cabin in Pourville." Little said he had brought the paintings to Ohio after having been given them to hold for "safekeeping" several years earlier by a former colleague in Los Angeles, an entertainment lawyer named James Tierney, who in turn had taken possession of them as part of an insurance scam pulled off by a retired eye surgeon named Steven Cooperman. Cooperman had reported the two paintings stolen from his Brentwood home in 1992 (by which time he had served as lead plaintiff in dozens of Milberg Weiss lawsuits). He was deeply in debt and facing foreclosure on his house when the paintings disappeared:

"Police were immediately suspicious. Nothing else was missing, there was no sign of forced entry, and the ... alarm system hadn't made a sound. But the doctor had an alibi: He and his third wife had been vacationing on the New Jersey shore. The theft, of course, was faked. Cooperman had enlisted his lawyer friend Tierney, who agreed, as Tierney later put it, to 'help him bury the body.' Cooperman gave him the keys and the alarm code for the house; Tierney made off with the paintings after the doctor left for vacation."

Cooperman filed an insurance claim for $12.5 million. Initially, the insurance companies refused to pay, but Cooperman sued for the full $12.5 million plus punitive damages. The case soon settled for $17.5 million, and the paintings remained missing for five years, when the domestic abuse complaint led police to James Little's chatty girlfriend. Little then led the FBI to Tierney, who in turn led them to Cooperman, who in 1999 was convicted in Los Angeles of insurance fraud.

"Facing up to ten years in prison, he was released on a $10 million bond .... He hired a new lawyer, ... who raised the idea of cutting a deal with prosecutors to reduce his client's prison time. Did Cooperman know anything - anything big - that might be of interest to the federal government? ... As it turned out, Cooperman did know something big: the secrets of Milberg Weiss."

Monday, October 30, 2006

NYLJ on Trademark Dilution

Tomorrow's New York Law Journal has a piece by Paul Llewellyn of Kaye Scholer on the recently passed Trademark Dilution Revision Act, which I wrote about previously here.

Selling Schiele

This is not going to make the "absolutists" happy.

Koons Wins

The New York Law Journal reports today ($) on a big victory by Jeff Koons in a copyright infringement lawsuit brought against him by photographer Andrea Blanch. Koons used part of a photograph by Blanch in his painting "Niagara" (which you can see, and read about, here). The Southern District granted summary judgment to Koons on fair use grounds last year, and the Second Circuit has now affirmed.

Blanch's photo, entitled "Silk Sandals by Gucci" (you can see a mediocre black-and-white reproduction here), appeared in Allure magazine in 2000. Koons digitally scanned the photo and incorporated it into "Niagara," as one of the four pairs of legs depicted (the ones second from the left). He used only the legs -- "discarding the background of the airplane cabin and the man's lap on which the legs rest." He also "inverted the orientation of the legs so that they dangle vertically downward ... rather than slant upward at a 45-degree angle as they appear in the photograph." He added a heel to one of the feet, and modified the colors.

As Professor Patry says, "the case can be reduced to two fundamentals: Koons' use was highly transformative and the copyright owner suffered no harm to her market; the rest is window dressing." On the first point, the Court noted that when a work is "used as 'raw material' in the furtherance of distinct creative or communicative objectives, the use is transformative." Quoting the Supreme Court's opinion in Campbell v. Acuff-Rose Music, Inc. (the 2 Live Crew /Pretty Woman case), it went on to say "the test for whether 'Niagara's' use of 'Silk Sandals' is 'transformative' ... is whether it merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message" -- a test which, in the Court's view, "almost perfectly describes Koons's adaptation of 'Silk Sandals': the use of a fashion photograph created for publication in a glossy American 'lifestyles' magazine -- with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details and, crucially, their entirely different purpose and meaning -- as part of a massive painting commissioned for exhibition in a German art-gallery space."

On the second point -- the lack of harm to her market -- Blanch had conceded that (1) she has never licensed any of her photos for use in works of graphic or visual art, (2) that Koons's use did not cause any harm to her career or interfere with any plans she had for "Silk Sandals" or any other photo, and (3) that the value of "Silk Sandals" did not go down as a result of this use. "In light of these admissions," concluded the Court, "it is plain that 'Niagara' had no deleterious effect upon the potential market for or value of the copyrighted work."

I think the Court clearly reached the right result here -- I agree with Professor Patry that it's a "commendable decision" -- but I have the same discomfort with it that I always have with any fair use decision: the nagging sense that it doesn't really provide much useful guidance going forward. Consider Rogers v. Koons, another fair use case which Koons famously lost. There, Koons took a postcard photograph of a group of puppies with their owners and turned it into a sculpture called "String of Puppies." (You can see the photograph and Koons's sculpture, side-by-side, here.) Is there any doubt Koons used the postcard "as 'raw material' in the furtherance of distinct creative or communicative objectives"? That he "added something new, with a further purpose or different character, altering the first with new expression, meaning, or message"? Doesn't that "almost perfectly describe Koons's adaptation of" Rogers's postcard photo: the use of an ordinary photograph created for sale in commercial card shops -- "with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details and, crucially, their entirely different purpose and meaning" -- as part of a large sculpture produced for exhibition in a leading New York art gallery? Professor Patry suggests that because "Niagara" used only portions of Blanch's photo, and as part of a collage, "it was easier for the court to see the transformative nature" of the use. Perhaps. But what if Koons hadn't dropped the lap on which the legs rested, or changed their direction, or added a heel or modified the colors? What if he did two of those things but not the others? When can an artist feel comfortable that he's done enough transforming to avoid a lawsuit? Maybe Judge Kozinski is right that "the real issue is that fair use doctrine is a red herring that we should just dump."

Thursday, October 26, 2006

A long 15 minutes (UPDATED 2X)

Forbes.com has its annual list of Top-Earning Dead Celebrities, and Andy Warhol checks in at no. 6. He brought in $19 million last year:

"Most recently, his estate, managed by the nonprofit Andy Warhol Foundation for the Visual Arts, signed off on a new apparel line with jeansmaker Levi Strauss & Co. It will also reap royalties from a licensing deal with Barneys New York. The high-end department store will feature Warhol's work in a holiday campaign--think bags, billboards and store windows--aptly titled 'Happy Warholidays.'"

Here is the rest of the top 10:

1. Kurt Cobain
2. Elvis
3. Charles Schulz
4. John Lennon
5. Albert Einstein
6. Warhol
7. Dr. Seuss
8. Ray Charles
9. Marilyn Monroe
10. Johnny Cash

The Washington Times reports here. My post on last year's list (when Warhol placed fourth) is here.

UPDATE: Relatedly, the lead story in today's New York Times Style section is entitled "The Selling of St. Andy." It says "the marketing of Andy Warhol is in full flood" -- in carpets, coffee mugs, calendars, greeting cards, T-shirts, tote bags, a line of Levi’s jeans called Warhol Factory X ($185), shoes, plastic Day-Glo colored watches by Seiko, makeup. Even a Pez dispenser.

What would Warhol have thought of all this? Dealer Jeffrey Deitch is quoted as saying it's “the fulfillment of Andy’s fantasy about business art. I think he would have been amazed to see what has developed.”

UPDATE 2X: A reader points out that I somehow left Marilyn Monroe off the list. Now corrected above.

Tuesday, October 24, 2006

"One for the books"

Dan Barry has a column in tomorrow morning's New York Times on "the increasingly muddy Estate of William M. V. Kingsland — nĂ© Melvyn Kohn," which, as I mentioned last week, included a number of stolen artworks. Barry writes:

"A central question for everyone, of course, is Mr. Kingsland’s role in all this. Was he a thief, a fence, or just an innocent collector of pretty things that happened to be hot?"

Renoir Infringement Suit

The Arizona Republic reports on a copyright infringement lawsuit involving some Renoir sculptures that went to trial today to determine the extent of damages; liability was decided on summary judgment earlier this year.

The background to the lawsuit is in this report from a year ago. The defendants in the case are Rima Fine Art in Scottsdale and its individual owners, as well as Jean-Emmanuel Renoir, Renoir's great-grandson, who lent his name to the gallery's plans "to sell hundreds of thousands of Pierre-Auguste Renoir sculptures, merchandised as everything from bedding and bird feeders to dolls, diamonds and dog leashes." The lawsuit was brought by the Societe Civile Succession Richard Guino, a French trust. Renoir worked with artist Richard Guino from 1913 to 1918, when, in his 70s and hindered by arthritis, he began to make sculpture. At least 17 works resulted, initially signed only by Renoir, who died in 1919. Guino died in 1973. His family then sued the Renoir estate, and in 1982 the family was awarded co-authorship of the works by the French courts. Profits have since been divided between the two families, and the original plasters "placed in a neutral domain, the Susse Foundry in Paris."

The current case turns on a hypertechnical question of copyright law -- whether publishing a pre-1978 work in a foreign country without a copyright notice placed the work in the public domain in the U.S. The gallery's lawyer is quoted as saying "[b]asically what [the District Court Judge] said was that he believed we were correct, but he was bound by the 9th Circuit" -- and, for once, that doesn't appear to be mere spin from the losing side. The District Court said that it would follow the 9th Circuit's decision in Twin Books Corp. v. Walt Disney Co. (83 F.3d 1162 (1996)), which held that the foreign publication without notice did not cause the work to enter the public domain (hence the finding of infringement here), but made it very clear that it was doing so against its better judgment.

The District Court had suggested that an interlocutory appeal might be appropriate given the circumstances. The 9th Circuit apparently turned it down, but I'm sure the case will be back before it pretty soon.

Monday, October 23, 2006

Steve Wynn's Elbow

I'm a little late getting to the story of how Steve Wynn put his elbow through Picasso's "Le Reve," which he was about to sell to collector Steven Cohen for $139 million. Nick Paumgarten had an amusing piece about it in last week's New Yorker. Nora Ephron, who was an eyewitness, wrote about it at the Huffington Post. Artnet covered it here (second item).

Problem is, as law prof Miriam Cherry says in the comments here (scroll down), there really aren't any interesting legal issues here. One possibility is the contract angle (before the accident Wynn had agreed to sell the work to Cohen) -- but he willingly rescinded the sale. As Cherry says at her own blog, "it would have made for a more interesting contracts problem if Wynn hadn’t done the honorable thing and agreed to keep and repair the painting!" The Wall Street Journal's law blog calls it "The Greatest Contract Dispute That Never Was."

Nor are there any moral rights issues: Wynn could have intentionally put his elbow through the painting for all the law cares. (Cherry titles her post, "The Right to Destroy," which was also the title of an earlier post of mine; and her fellow law prof Avi Bell is put in mind of Joseph Sax's Playing Darts with a Rembrandt, also mentioned in my earlier post. He says,"I'm not sure quite how this story fits in, but it has to say something.")

Maybe the real takeaway lesson here, if there is one, is: Anything can happen. As a commenter at the Wall Street Journal blog says, it's "a good example to use the next time a client dings me for worrying too much about 'unlikely' events when negotiating indemnities and other 'what if' contract provisions."

Here is an image of "Le Reve." Here is a Wikipedia entry on Wynn's art collection (already updated, of course, to include these developments). And here is Wikipedia on Cohen as collector (also right up to date).

Virtually Dali

There was a long piece in the New York Times last week about the virtual world of Second Life and how it's "is fast becoming a three-dimensional test bed for corporate marketers, including Sony BMG Music Entertainment, Sun Microsystems, Nissan, Adidas/Reebok, Toyota and Starwood Hotels." Apparently a Congressional committee is investigating whether virtual assets and incomes should be taxed (I can't imagine how they could).

Here's the art law connection:

"Mr. Verbeck of Electric Sheep said copyright infringement was rampant. His company runs an online boutique where Second Life residents sell each other pixelized creations of everything from body parts to home furnishings to roller skates — many of them unauthorized knockoffs. So far, the boutique has not had many requests to stop selling fake products. But 'we did have a request from the Salvador Dali Museum — which was great,' Mr. Verbeck said. 'Second Life is so surreal that it was perfect.'”

Sunday, October 22, 2006

Pretty Sure This Isn't Legal

I'm no expert on Russian law but I'm going to go out on a limb and say this is against the law:

"A group of men burst into a contemporary art gallery [in Moscow] Saturday, destroying work by an ethnic Georgian artist and beating up the owner, Marat Guelman. Mr. Guelman is well known both for his display of politically inspired and irreverent art and, most recently, his public attacks on neofascists for their dislike of non-Russians and of Western influence on Russian society."

The full story is here.

Friday, October 20, 2006

"It just adds another layer to the mystery of Billy Kingsland”

The New York Times today reports on the odd tale of William Milliken Vanderbilt Kingsland, "for decades a curmudgeonly fixture of Upper East Side society, an occasional art dealer and full-time gossip," who died intestate in March. It turns out that some of the art that crammed his Upper East Side apartment had been stolen, including two paintings that went missing from Harvard's Fogg Art Museum more than 30 years ago -- an 18th century portrait by John Singleton Copley, and a a portrait of a former Harvard president. The Times quotes "a court official familiar with the investigation" as saying a Giacometti bust Kingsland owned was also stolen, and that Christie’s had withdrawn it from a scheduled sale. Stair Galleries, an auction house in Hudson, N.Y., which recently auctioned off 250 of Kingsland’s works, is now "contacting every buyer and undoing the entire auction, which yielded $200,000."

The New York Sun, which back in April ran a lengthy obituary of Kingsland (who the Times also reports today was actually born Melvyn Kohn), has a story on this latest twist too here. They report that, "while Stair Galleries did buy some of Kingsland's art collection, Christie's bought the most valuable artwork from the estate."

Wednesday, October 18, 2006

Lichtenstein and Copyright

Alex Beam has an interesting piece in the Boston Globe on copyright issues surrounding Roy Lichtenstein's use of images from comics. An art teacher named David Barsalou has been tracking down and cataloging specific comics that were the inspiration for Lichtenstein's paintings; so far he's found about 140. "Color me naive," writes Beam, "but I never thought Lichtenstein's work was a direct copy of scenes from comic books. I assumed that he stylized certain scenes suggested by the comic vernacular of the 1950s and 1960s." He also correctly points out that Lichtenstein could have faced serious copyright problems (Beam doesn't mention it, but just think of Rogers v. Koons); he says the interesting question is why he never did. The question is in any case now moot: there's a three-year statute of limitations for copyright claims.

You can see samples of Barsalou's research at his website, Deconstructing Roy Lichtenstein.

Something rotten in the state of Pennsylvania?

Christopher Knight of the LA Times finds something fishy in the fact that "two state appropriations for the Barnes Foundation totaling $107 million were made 13 months before" the start of the hearing on the Foundation's petition to move to Philadelphia. But Lee Rosenbaum says it's a tempest in a teapot.

Monday, October 16, 2006

"A Tangled Artistic Odyssey"

Yesterday's Sacramento Bee had a story on a now-settled lawsuit brought by an artist named Henry Villierme against the John Natsoulas Gallery in Davis, CA. Apparently Villierme consigned some paintings to the gallery in 1990, but they ended up being sold -- not as work by Villierme, but by Richard Diebenkorn, who had been Villierme's teacher in the 1950s at the California College of Arts and Crafts in Oakland.

One interesting question is how to quantify Villierme's damages. On the one hand, he probably had a claim for "conversion," but, as the article points out, "it is difficult to pinpoint the market value of Villierme's paintings, because the artist had been inactive for so long" (he apparently dropped out of the art world "for decades" and worked in a bank). For a recent museum exhbition, two of his paintings were valued for insurance purposes at $35,000 and $18,000. He may also have had a VARA claim -- for use of his name as the author of a work that he did not create -- but it's hard to see how it's damaging for a painter to be mistaken for Diebenkorn. Indeed, the curator of the Crocker Art Museum in Sacramento, is quoted as saying: "I learned about an artist I did not know about. I would be happy to have [one of the Villierme 'Diebenkorn's'] in this museum as a Henry Villierme. It would be pretty wonderful if it would end up here."

Sunday, October 15, 2006

Astor Settlement

The Brooke Astor guardianship dispute has been settled, with her son agreeing to give up his current power of attorney and, prospectively, his appointment as an executor of her estate. The Childe Hassam painting (mentioned most recently here) does make an appearance in the settlement: the son is paying $1.35 million to J.P. Morgan Chase to cover late penalties and interest, presumably as a result of their underreporting, on Mrs. Astor’s 2002 tax return, about $5 million in capital gains from the sale of the painting.

Saturday, October 14, 2006

Fisk-O'Keeffe Case Going to Trial

A Tennesse court has denied Fisk University's motion for summary judgment, so the Georgia O'Keeffe Museum's lawsuit seeking to block the sale of two works she bequeathed to Fisk in 1949 is heading to trial in February. The Tennessean reports here. Earlier posts on the case here and here.

Thursday, October 12, 2006

Barnes News

Lee Rosenbaum discusses the announcement by Pennsylvania Congressman Jim Gerlach that he plans to introduce a bill that "would impose a penalty on any tax-exempt organization, and in this case the Barnes Foundation, for accepting a donation that would be used to move the organization contrary to the intent of the donor." The AP story, which notes that Gerlach is "locked in a tight re-election contest," is here. An earlier post on the Barnes move here.

More Eisenberg vs. fractional gifts

I mentioned a couple of weeks ago that a Minnesota Public Radio story made the odd choice of Georgetown University's Pablo Eisenberg as defender of the changes to the laws governing fractional gifts of art to museums, since he thinks the deduction "ought to be abolished altogether" (which, as I pointed out, is not what the new law does, at least not intentionally). Eisenberg now expands upon his view in The Chronicle of Philanthropy, arguing that "while placing restrictions on fractional giving was a major step in the right direction, it is not enough. Donors shouldn't get any deductions at all unless they give away their art objects fully and completely. That's the next act for Congress."

Those Disputed Pollocks

Will go on view at the Everson Museum of Art in Syracuse next June "even if laboratory tests show that the works are fake." Cleveland Plain Dealer art critic Steven Litt has the story here. The works are often referred to as the "Matter Pollocks" (they were discovered by a New York filmmaker named Alex Matter in a Long Island storage space that had belonged to his father, Herbert Matter, who was a close friend of Pollock and who died in 1984). "The Straus Center for Art Conservation at Harvard University has said it soon will release the first physical analysis of the works, which include two dozen paintings and a dozen sketches and studies on paper. The analysis likely will show whether the materials used to make them existed during Pollock's lifetime. If they did, it wouldn't prove conclusively that the works are by Pollock.... However, if the examination shows the materials did not exist during Pollock's lifetime, it would prove that ... they're fakes." Litt quotes Everson's director as saying she decided to exhibit the works because "the rental fee for the exhibition was low - $40,000, plus $5,000 for shipping" and Matter agreed that the museum did not have to describe the works as Pollocks. A planned show at Guild Hall in East Hampton this past summer was reportedly cancelled because Matter insisted that the paintings could only be displayed as Pollocks.

Not unrelatedly, the Guardian reports today on new software developed by researchers at the University of Maastricht that may make it easier to spot forgeries: "Using high-resolution scans of paintings, the ... software builds up a library of characteristics, such as brushstrokes, colours and type of canvas used, that form a 'fingerprint' for a particular artist. A painting can then be compared against this fingerprint to help experts decide whether it is a fake."

Wednesday, October 11, 2006

Project Posner

For the Posnerphiles out there. Professor Patry takes it for a test drive here.

Phony Hirsts?

The New York Times had this report this morning (scroll to the bottom):

"Suspicion of forgery has led Sotheby’s in London to withdraw from sale three limited-edition prints attributed to Damien Hirst, the BBC reported. Featuring randomly colored circles in a grid, the prints are in his trademark spot style and, if genuine, would be worth as much as $18,600 each. They are believed to have drawn attention from forgers who use advanced technology to copy artworks. Sotheby’s confirmed that the pictures had been withdrawn and that their authenticity was being investigated. The BBC said apparent differences in the artist’s signature and in the color of the spots had aroused suspicion. 'As soon as something is worth money, it becomes a target for forgers,' said Hector Patterson, a fine arts consultant and appraiser. 'Auction houses are, on the whole, vigilant about this problem, as their repute is partly at stake.'"

"In the United States, this artwork might be called a lawsuit waiting to happen"

CBSnews.com has this story on a piece by Carsten Holler that was installed Monday at the Tate Modern in London.

The New York Times has more, including the following quote from one of the curators, who calls the installation “participation art”: “Holler firmly believes that slides should be far more widely used in public life. The idea is that if we all went down a slide on a daily basis, it might profoundly change our lives.” The tallest of the slides is 182 feet long and deposits its passengers 87 feet from the top floor of the building.

Tuesday, October 10, 2006

Trademark Dilution Revision Act

The Trademark Dilution Revision Act of 2006 was signed into law last week, amending Section 43(c) of the Lanham Act and clarifying certain issues under the Federal Trademark Dilution Act of 1995. The central provision of the new law is the creation of a cause of action for the owner of a trademark against anybody who uses it in a way that is "likely to cause dilution" of the mark, overruling the 2003 Supreme Court decision Moseley v. V Secret Catalogue, 537 U.S. 418 (2003), which interpreted the Lanham Act to require actual (not just likely) dilution.

There had been some concerns expressed about the possible narrowing, or even elimination, of fair use defenses in earlier drafts of the bill, but the final version broadly excludes from liability "any fair use, including a nominative or descriptive fair use ... other than as a designation of source for the person's own goods or services," including use in "identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner." The Act also retains the exclusions for news reporting and commentary, and for noncommercial use of a mark. The exclusion for "noncommercial uses" was omitted from earlier drafts, but was reinserted in response to protests from artist groups and others claiming the need to protect noncommercial speech that does not necessarily parody, criticize, or comment on the trademark owner.

Peter Grosz

Peter Grosz, the son of German Expressionist George Grosz, recently passed away, and the obituaries mentioned that in recent years he "became involved in a long lawsuit against an art dealer. He claimed that Serge Sabarsky, who sold George Grosz's work for his sons for years, cheated them by buying it himself under the table without getting a competitive price." The suit was apparently settled a couple of months ago. A New York Times article ($) from 2001 (by which time the case had already been going on for six years) has further details on the dispute:

"In th[e] suit, filed in State Supreme Court in Manhattan, the Grosz estate claims that Mr. Sabarsky secretly acquired 440 Grosz works for himself, primarily drawings and watercolors produced in Germany in the 1910's and 20's, the period of his most valuable artwork. Another 110 works are missing, the Grosz estate says. ... 'What he did over the years was to buy art saying he sold it to third persons, but buying it for himself and giving us a fictional sales price,'' said Peter M. Grosz, 75, elder son and executor of his father's estate. 'We got paid for it, but it wasn't on an open market, and it wasn't done competitively. It's up to an art dealer to increase the price, but because he was buying it for himself, he wanted to keep the prices as low as possible.'


"Mr. Sabarsky's deal with the Grosz family was made with a handshake: Mr. Sabarsky would promote the works and receive a 33 percent commission for retail sales, 40 percent for wholesale. For several years Mr. Sabarsky made an annual accounting to the brothers, but from 1983 to 1990 there was just one. That accounting and others, Peter Grosz said, referring to papers the Grosz family said were from Mr. Sabarsky, did not list specific clients, just a notation about whether a sale had been wholesale or retail. ...

"In 1994 the Grosz estate fired Mr. Sabarsky. The next year, having come to believe that Mr. Sabarsky had been secretly acquiring art for himself, the Grosz estate brought suit. ...

"The original suit, filed in 1995, seeks $6 million in damages."

Sabarsky was the co-founder (with Ronald Lauder) of the Neue Galerie in New York, recently making big news for its $135 million purchase of the Klimt Adele.

Monday, October 09, 2006

Discarded Art

The New York Times had a little piece on Sunday about Josh Sapan, the CEO of Rainbow Media Holdings, the cable tv programming company, who has built a collection of hundreds of artworks that he has found "on the streets and sidewalks of Manhattan, where he has prowled for years with downcast eyes, ready to rescue abandoned gems from the hydraulic crush of the sanitation truck." He's set up a website to display "the collection" here. My first thought is to wonder about Sapan's interference with an artist's "right to destroy" her own work. In 1982 Frank Stella brought a lawsuit in New York State court against dealer Stephen Mazoh over two rain-damaged paintings he had intended to discard but which disappeared from the landing outside his studio and then reappeared at Mazoh's gallery. The case ended up settling, with Stella recovering -- and then destroying -- the works. Sapan's website doesn't appear to identify any of the artists by name, but what if one of the art students whose work he's "rescued" turns into the next Frank Stella and an enterprising art historian someday makes the connection?

"Did the Getty get off easy?"

That's the question CultureGrrl Lee Rosenbaum asks in an op-ed in Friday's Los Angeles Times. She says we'll never really know: "The problem with the 12-page public summary of the attorney general's findings is that there is no way of knowing. [The AG's office] declined to release the facts and figures on which the report's conclusions are based, asserting that information acquired during the investigation is 'exempt from public disclosure under the Public Records Act of California.'" Her conclusion:

"The much-publicized personal friendship between Munitz and [AG] Lockyer made it all the more essential for the attorney general's report to provide sufficient detail to instill confidence in its findings. With this report, and with the refusal by all parties to provide further details on its findings, it's not just the Getty Trust that has shown disregard for its public trust, it's also the California attorney general's office. The damage that this sorry episode inflicted on public confidence in the Getty and, by extension, all nonprofits is perhaps the biggest cost of the inadequate oversight by the Getty's board of Munitz's actions — a loss for which there can never be adequate compensation."

Wednesday, October 04, 2006

Hermitage Theft Fallout

ARTnews assesses the "fallout" from the recent disclosure of thefts at the Hermitage, which includes "public outrage, long-winded tirades in the media deploring the deteriorating moral fabric of the country, and a museum community in turmoil."

Idea Theft Update

A couple of months ago I posted about the status of "idea theft" cases in the wake of the Ninth Circuit's decision in Grosso v. Miramax. Aaron Moss of Greenberg Glusker Fields Claman & Machtinger had a recent piece on the issue in The Hollywood Reporter, Esq.:

"As the dismissal of Grosso’s own case ... by a Los Angeles Superior Court judge demonstrates, there is a big difference between getting into court and actually staying there."

Tuesday, October 03, 2006

Getty Report

The California Attorney General's Office issued its report on the Getty yesterday. Here's a quick overview from the Chronicle of Philanthropy. Tyler Green summarizes the key findings and rounds up the coverage. Lee Rosenbaum has more, and the report itself is here.

Sunday, October 01, 2006

Orphan Works Bill

Melise Blakeslee of McDermott Will & Emery has a good overview at law.com of the status of the Orphan Works Act, which was introduced into the House in May but will have to be re-introduced when Congress reconvenes after elections in January.

She gives a good working definition of an "orphaned work" -- one where "the copyright owner cannot be found after a diligent search" -- and points out how risky it can be under current law to use one:

"[D]amages can be significant. Should the previously unknown copyright owner appear and make a claim, the Copyright Act provides for an award of actual damages, and may, under certain circumstances and the court's discretion, provide for statutory damages of up to $150,000 per infringing work, along with an award of attorney fees."

The proposed law "would lessen the monetary penalties facing a good-faith user should the copyright owner eventually appear and make a claim. To qualify for reduced penalties, the good-faith user must prove that it made a reasonably diligent effort to locate the copyright owner prior to the allegedly infringing use. ... Once it is established that a diligent search was conducted, the penalty is limited to a reasonable royalty fee."

Something to keep an eye on next year.

"A must-read for giving us the first detailed look at how the Klimt deal went down"

That's Lee Rosenbaum's assessment of Tyler Green's story in the current Fortune magazine about Ronald Lauder's purchase of Klimt's "Adele." Lee also wonders about what Tyler calls Austria's "strangest reason" for not returning the painting: "that Adele herself wanted the paintings to be given to Austria upon [her husband] Ferdinand's death." From my reading of the Supreme Court's 2004 decision in the case, it's probably more accurate to say the Austrian position was that Adele had already given it the work prior to its seizure by the Nazis. The Bloch-Bauer heirs conceded that Adele's will (she died in 1925) "asked" her husband "after his death" to bequeath the paintings to Austria. Their complaint in the U.S. action added that the attorney for her estate then advised the Austrian Gallery that the husband "intended to comply" with the request, but that he wasn't legally obligated to do so because he, not his wife, owned them. He died in 1945, in Switzerland, where he had fled from the Nazis, and his will left everything to his niece, Maria Altmann (who was the named plaintiff in the lawsuit), another niece, and a nephew. The Gallery did take the position, as early as 1948, that Adele had bequeathed the paintings to it, after which Ferdinand had merely been "permitted" to retain them during his lifetime. A few years ago a committee of Austrian government officials and art historians concluded that Adele's precatory request had created a binding legal obligation on the part of her husband to donate the paintings to the Gallery upon his death. The Supreme Court's decision didn't at all get into the merits of those claims (which presumably would be decided under Austrian probate law), instead dealing solely with complex issues of sovereign immunity.