"My client just decided to settle after doing the math and deciding it was simpler to pay."

Artinfo reports on a settlement in a private California resale royalty suit brought by artist Mark Grotjahn against collector Dean Valentine.  Under the settlement, Valentine agrees "to pay Grotjahn the five percent he owed on the three works he resold, as well as some of the artist’s legal fees."  Artinfo notes that "the outcome of the case could affect the current class-action lawsuit that artists have filed against major auction houses Sotheby's [and] Christie's," but it's not clear from the article to what extent the Commerce Clause issue was implicated in the Grotjahn case.

Latest on the California Resale Royalty Class Action

The plaintiffs have filed their response to the auction houses' motion to dismiss.  No online link yet; background about the case here.

The main question in the case, I've been saying, is whether, as applied outside California, the statute violates the Commerce Clause.  In their motion to dismiss, the auction houses argued that "where State A purports to regulate the sale of goods occurring in State B simply because that sale involves a resident of State A, the regulation is invalid."  In attempting to distinguish some authority cited by the auction houses, the plaintiffs here argue that, in those cases, "the only nexus with the state was that the consumer was from the state."  In this case, by contrast, the ("undeniable") nexus is that the sellers "reside in the state" (p. 11).  "[W]hile part of the transaction may occur outside of California, it cannot be said that the transaction occurs wholly outside of California because the seller is necessarily a state resident" (p. 12).  I'm not a constitutional lawyer, but that doesn't sound especially convincing to me.

"Goldsmith says in the court papers that the dealers assured him of the works’ authenticity and told him they had relationships with the sellers and 'personal connections' with the artists."

"But when he had some of the works evaluated by Basquiat’s and Haring’s estates in 2010, he was told that they were forgeries."

Arnet reports that a New York collector is suing a pair of secondary market dealers over the sale of $950,000 worth of work purportedly by Basquiat, Haring and Warhol.

"The court 'exhibited a lack of intrinsic comprehension of art,' she wrote."

Artnet's Rachel Corbett has a report on Janine Gordon's appellate brief.

"It was undisputed at trial that the subject of the condition precedent, i.e., that funds be received from Galerie G, never occurred."

An interesting decision in the Southern District last week in a breach of contract case involving a "back-to-back transaction" for the sale of a Mondrian.  Edelman Arts sued Anne Faggionato's Art International, but the court ruled that a statement in a fax cover sheet enclosing a signed bill of sale that it was "to be held in escrow until the monies from the buyer have been received" created a condition precedent that was never fulfilled.  (Edelman's position was that that was "only a timing provision.")  Courthouse News story here.  Opinion here.

Lawsuit Filed to Block Christo's Latest Project

In Colorado.  "The lawsuit, filed ... by a group of students at the University of Denver’s Sturm College of Law, argues that land managers did not adequately address the long-term effects of the project on wildlife, especially the bighorn sheep that clamber about on the canyon’s cliffs."   They say that, in approving the project, "federal analysts framed their assessment in ways that excused the impact of the thousands of bore-holes, rock-bolts and anchors that will have a cumulative effect, ... not unlike industrial mining." Ann Althouse says that's "a new twist on the old 'what is art?' question. These law students are arguing about the art/mining distinction."

Mo(o)re on Sports Artists and Trademark

As a follow-up to his New York Times piece earlier this week on the Daniel Moore case, Daniel Grant has a post at the Huffington Post on another sports artist, Rick Rush, "who successfully fought a trademark infringement lawsuit [brought by Tiger Woods] over a period of five-and-a-half years."

I linked to the Rush decision in my very first post about the Moore case, now more than five years ago.

Barnes Sanctions Hearing

Cheryl Alllison of the Main Line Times has a report on this morning's sanctions hearing in the Barnes case.  Judge Ott "closed the hearing after about 45 minutes and said he would take the matter under advisement."

Six days a week, 9:30-to-6:00 ...

... of adversely affected experience in an impossible to predict way.  The Barnes sets its opening hours.

As near as possible

The Tennesse Attorney General has gone ahead and filed for permission to appeal the most recent ruling in the Fisk case.  Here's a brief AP story.  Here's the brief.  And here is donor-intent protector Lee Rosenbaum, coming out of retirement to cheer on Super Cooper's forfeiting of his neutrality.

A few comments on the brief:

1.  It contains as clear a statement of Donor Intent Absolutism as you will ever see:  "[T]he fact that the donee may cease to exist if it is not permitted to change the conditions of a gift ... does not authorize a deviation from the conditions of the gift."   Wow, that's cold.  O'Keeffe said no sales and that means no sales.  If that results in Fisk having to shut its doors, so be it.  But wasn't it also part of her intent that Fisk own the works?  After all, she could have given them to anyone, but she chose Fisk.  Why do we assume the no sale part of her intent is more important than the Fisk part of her intent?  It's not as if she said "here is a bunch of artwork, I don't really care who owns them or what happens to them just as long as, please God, they never ever be sold!"  In other words, do we really think that, given the choice, O'Keeffe would prefer to see Fisk close down and the works sent somewhere else than the collection sharing arrangement on the table now, in which Fisk survives and retains a 50% interest in the works?

2.  Speaking of that retained 50% interest (and the related right to exhibit the works for two out of every four years):  the brief bizarrely reads as if the whole collection is being shipped off to Russia or something, never to be seen again.  It claims the deal that's been approved converts the collection "into nothing more than a source of revenue for Fisk."  It argues that, under the cy pres doctrine, any deviation "must be as close as possible to what the donor intended" and this deal "is far removed from Ms. O'Keeffe's intent and purpose."  What was that intent and purpose that we are far removed from?  According to the AG, it's that the work "be used for art education in Nashville and the South."  O'Keeffe's "primary charitable purpose was to enable the public -- in Nashville and the South -- to have the opportunity to study the Collection in order to promote the general study of art."  Seriously?  That's their argument?  That a collection-sharing arrangement that has the work in Nashville at Fisk half the time and at a brand new museum of American art in Arkansas (which may well "become a place of pilgrimage for art lovers from around the world") half the time is far removed from an intent to enable the public -- in Nashville and the South -- to have the access to the collection?  Really?

3.  Finally, a word about this silly notion that allowing this collection-sharing arrangement to go forward will "chill" future charitable donations.  Look, this case isn't inventing a new way to subvert donor intent; it's applying long-standing doctrine (one that existed at the time O'Keeffe made her gift).  As the AG's brief itself notes, the cy pres doctrine was "first codified in New York in 1893."  Every single charitable gift comes with an implicit asterisk to the effect that, when changed circumstances make compliance with the terms of the gift impracticable, a court may modify those terms.  That was true before the Fisk decision, and remains true after.  Reversing the decision in this case would not make that asterisk go away.  No donor can ever be "certain" that the conditions of her gift will be honored for all eternity.  Fisk happens.

"All this raises the prospect that a decision by the Second Circuit could affirm the lower court judgment without shifting the copyright landscape dramatically."

"That is to say, the appeals court could leave for another day how transformative a work needs to be and say simply that these works fail the test because of what Prince said."

Nicholas O'Donnell reads Cariou's appeal brief.

Related post here.

"Is Prince v. Cariou Already Having a Chilling Effect?"

Julia Halperin at ARTINFO.

Barnes Update

The Main Line Times:  "A court hearing is scheduled for Thursday, Feb. 2, at 9:30 a.m.... at which the Friends of the Barnes Foundation and other petitioners will present their objections to sanctions imposed by Montgomery County Orphans’ Court Judge Stanley R. Ott."

More More Moore

Daniel Grant had an update in the New York Times today on the University of Alabama-Daniel Moore lawsuit.  There's an appellate court hearing on Thursday.  This is what the parties are appealing:

"The District Court Judge Robert Propst wrote in his 2009 ruling that there was no reason for buyers of Moore’s prints to assume that the products were licensed and endorsed by the university. Rather, he wrote, 'it is likely that people who buy the Moore paintings do so, at least partially, because of their loyalty to the University of Alabama and its football team.'  The judge, however, did prohibit Moore from selling his images on products of a more commercial nature, like coffee mugs and calendars, without obtaining a license from the university, and his ruling was vague on the number of prints in an edition that the artist could create."

Oh Sister

I don't remember seeing this in the earlier reports on this story, but, according to this article in the Albany Times-Union, not only did that upstate order of nuns lose their fraud claim against the two dealers, there was also a defamation award in the dealers' favor, to the tune of $250,000.

More on Appropriation and Fair Use

Had a chance to read the Cariou appellate brief.  They smartly keep the argument as narrow as possible:  they don't say all appropriation is infringement, just that this particular example -- where "a transformative purpose is negated by the sworn testimony" of the artist (p. 5) -- is.  They say Prince "admi[tted] that he had no message he wanted to convey about Cariou's photographs and only appropriated them because he liked them" (pp. 1-2).

Relatedly, Cat Weaver says "the dueling Cariou v Prince briefs have added new certainty to my theory that transformative use is a singularly unhelpful notion."

And Joy Garnett has organized a panel, "The Case For Appropriation," Feb. 16 at SVA.

Art Dealer Faces Fraud Charges

The NYT's Patricia Cohen has the details.

Overtime

The University of Alabama's lawsuit against artist Daniel Moore is still going!  Oral argument on the appeal scheduled for Feb. 2.  Jon Solomon of The Birmingham News says it's "embarrassing" and a "PR nightmare" for the university.

Prince-Cariou News

Patrick Cariou's lawyers filed their appellate brief yesterday.  Haven't had a chance to read it myself, but in the meantime, here are reports from ARTINFO's Julia Halperin and Artnet's Rachel Corbett and commentary from Peter Friedman.

"The new lawsuit seeks some $14 million from Mr. Gagosian for various alleged misdeeds in the sale of Roy Lichtenstein’s Girl in Mirror."

Dan Duray has the details on a new lawsuit involving Gagosian Gallery and the Cowles family.  He points out that, were it not for this suit, "news might not have broken last week that the lawsuit between [Gagosian] and collector Robert Wylde had been settled for $4.4 million."  For background on that earlier suit, see here.