Wednesday, December 7, 2016

Proposed “Holocaust Expropriated Art Recovery Act” Will Change Rules of Restitution

In September, a bill was placed on the Senate Legislative Calendar, the Holocaust Expropriated Art Recovery Act of 2016. The act concerns cultural property unlawfully lost due to persecution during Nazi era, between 1933 and 1945. This will apply to claims pending on or filed after enactment, but before 2027.

The law will change how statute of limitation periods govern these cases. Plaintiffs alleging their art was unlawfully lost will have six years after discovery, and this allowance will preempt any other statutes of limitations relating to the matter.

The act aims to: “ensure that claims to artwork and other property stolen or misappropriated by the Nazis are not unfairly barred by statutes of limitations but are resolved in a just and fair manner.”


Law Ends, at Yale School of Architecture


Very excited to give the annual Myriam Bellazoug Memorial Lecture at the Yale University School of Architecture. The lecture, “Law Ends,” will deal with the role of rules and regulations in relation to culture and social interactions. The lecture will take place on Dec. 1st. One reason I’m excited about this lecture is that it gives me an opportunity to reach a different audience with some ideas that have been percolating in my courses and seminars, i.e.- my head. Let’s just hope it makes sense…or not.


Exhibition: A Place Called Motherfuckin’ Lovely

 Image: Detroit, Michigan (Circa 2013). Image courtesy of Sergio Munoz Sarmiento. Copyright 2013 Sergio Munoz Sarmiento. All rights reserved.

Image: Detroit, Michigan (Circa 2013). Image courtesy of Sergio Munoz Sarmiento. Copyright 2013 Sergio Munoz Sarmiento. All rights reserved.

I’ve co-curated an ongoing exhibition with Sima Familant. Here’s the scoop.

In, A Place Called Motherfuckin’ Lovely, the works and artists in the exhibition are purposefully and subtly disjunctive in order to take on what we deem identifies a forgotten “America,” in both its history and current manifestation – the place where dreams come true, where airplanes come to die, where racial and gender antagonisms still live large and across the nation, where privilege and violence merge in unsuspecting ways, and where walls are being erased and being raised. The artworks leave the viewer with many questions, one of which is: is the vision of “America the Great’ still true, and can we really make “America” great again?

The first iteration includes the following artists and groups: Asco, Gaspar Enríquez, David Hammons, Robert Indiana, Alex Israel, Cameron Jamie, Mike Kelley, Sean Landers, Bruce Nauman, Joyce Pensato, Suicide Girls.

Click here for more info on the exhibition.


David Zwirner Sued over Jeff Koons Work

London based art dealer, Fabrizio Moretti, is suing David Zwirner for $6 million. Last week, Judge Ostrager partially denied a motion to dismiss, and the lawsuit will move forward.

The dispute arises out of a sale of Jeff Koons’ Gazing Ball. Moretti is claiming that Zwirner violated the New York Arts and Cultural Affairs Law. Moretti purchased edition 2 of 3 in 2014. At the time, the sculptures were not yet complete. When the first in the edition was complete, it was labeled 3 of 3 and sent to auction. A second was completed and labeled 1 of 3 and sent to another buyer. When Moretti filed suit in August, the work was still not delivered. Further, the works that were created were not identical to the “prototype” displayed in David Zwirner Gallery.

The Art Newspaper reported Moretti’s attorney stating: “The idea not only that [a gallery] can deliver the work to you whenever they want, they don’t even have to tell you what work you’re getting, what size it is, or any information that a specific law requires.”

Zwirner calls this a “case of buyers remorse” and that the contract for sale never specified a deadline of delivery.

The case raises important questions of how to deal with editions of proposed works when selling to multiple buyers.


Renegades of Art & Law

artlawAs many of you know I teach law school and art school courses in art law and art & Law. I also give quite a few lectures and seminars on art & law. During my classes and talks, I often refer to the scholarly and artist work of some of my peers, and after these classes or talks I am always asked for their names or the names of other thinkers or writings in these fields.

I’ve finally gotten around to writing this brief blog post to make this information more public. But I also want to use this opportunity to pay homage to the creative individuals who are working in this great field of art & law to make it more complex and engaging. These artists and scholars are also producing material that is complicating our understanding of art, its history and its criticism, which is one aspect I frequently insist on when I teach and lecture: that we must allow ourselves to be influenced by those “outside” of our immediate circle and comfort zone. To quote architect Richard Rogers, “You have to absorb and analyze influences. That begins in my opinion by having other people around you, and not just architects. There are still architects who think that architecture is about architecture. There’s much more to architecture than architecture.”

With that in mind, when it comes to the practice of law as well as sharp insights on the hot debates concerning copyright, deaccessioning and authenticity, Donn Zaretsky is definitely at the top of this field. Not only does he represent major artists, he also co-teaches art law at NYU’s School of Law and pens his thoughts on his Art Law Blog as well other online and print venues.

Recently I’ve had the pleasure of discussing the legal doctrines of contracts and property vis-a-vis art with Joan Kee, art historian at the University of Michigan who holds degrees in law (Harvard) and art history (NYU). Joan also has some writings online and is currently finishing up a book on art and law from the 1970s to the 1980s. Can’t wait to read this book!

Dan Brooks is another great thinker and practitioner. Not only did Dan represent Patrick Cariou in the now infamous copyright and appropriation case of this century, Cariou v. Prince, he also contributes strong observations as to how courts have gone off the rails when it comes to statutory interpretation and its impact on artistic production. For a good example, take a look at his Rectifying Fair Use after Cariou v. Prince: Reviving the Forgotten Statutory Text and Requiring that Unauthorized Copying.

If you’re into lawbreakers and heart breakers, then U.C. Berkeley School of Law scholar Sonia Katyal is the art law scholar for you. Primarily an intellectual property, art law, civil rights (including gender, race and sexuality), property theory, and technology/new media thinker, Sonia has a particular interest in how artists break and challenge the law in order to bring attention to law’s own fiction and oppression. Of notable interest is her law review article, Property Outlaws, c0-authored with formidable property scholar, Eduardo M. Peñalver.

If you’re of the appropriation should know no boundaries or borders, then NYU’s art law guru Amy Adler is for you. I’ve had the pleasure of visiting Amy’s art law class and debate the pros, cons and relevancy of current appropriation practices and moral rights, and Amy can certainly pose interesting, unique and non-Marxist challenges to current copyright and moral rights law.

This post would certainly be out of whack if Martha Buskirk was not in the mix. After all, Martha gave us the seminal texts on Tilted Arc and artistic authorship and ownership. One key aspect I appreciate much about Martha is that she’s not afraid to dive right into the complexity of legal texts without ejecting the artistic and aesthetic. A true gift indeed.

Earlier this year I had the pleasure of being on a panel at RISD on aesthetics and law. This is where I met Brian Soucek, law prof over at UC Davis School of Law. A scholar on antidiscrimination law and civil procedure, Brian is also generating interesting material on how U.S. Courts have defined “art” and, more importantly, on why the law should have a say on what is and isn’t art. Controversial, indeed!

These are some heavy-hitters, and they’re being joined by up-and-coming thinkers such as Nate Harrison (PhD, UCSD), who focuses on digital media and appropriation practices. I’ve had Nate lead seminars for the Art & Law Program and it’s been a real treat seeing him develop his arguments to include the ethics of cultural appropriation. Nate’s the guy that made a video on the history of the most appropriated riff of all time, which you can watch here, along with millions of other viewers. And here’s an interesting online article on The Pictures Generation and the U.S. Copyright Act. I look forward to seeing more of his work.

If you’re interested in a fresh approach to copyright and artistic practices, look no further than Colby Chamberlain (PhD, Columbia University), who approaches intellectual property via the artistic movement known as Fluxus and the artist-provocateur, George Maciunas. If you think, as I do, that copyright/appropriation conversations are generally tired and predictable, take a look at Colby’s recent work for guidance on how bureaucratic and legal procedures are used to inform aesthetic practices.

A more controversial approach to appropriation and copyright is voiced by artist and arts lawyer, Alfred Steiner. Alfred is one of those rare artist-lawyer types who does not shy away from controversy or thoughts on art and copyright.

One last note. I may not agree with all of their positions or viewpoints regarding art and art & law, but it is precisely the availability of multiple positions that makes this growing field of art & law that much more interesting to me than traditional art history and art criticism. When we are forced to think about art in relation to the vast philosophical discourses of law, I think you can clearly see why so many artists, students, lawyers and scholars are interested in engaging with art & law. I trust you agree.

In no way is this “list” exclusive, so if I’ve managed to exclude anyone it is only because of my ignorance and not intentional.


Contentious Relationship Between Fashion and Copyright Heard by the Supreme Court

“So when Marcel Duchamp has a shovel on the wall and says it’s a work of art, he can have a copyright as long as he doesn’t try to sue people who make shovels?” Justice Bryer remarked on Monday when the Supreme Court heard arguments in the copyright matter Star Athletica v. Varsity Brands.

The case involves a classic cheerleader outfit, whose designers are fighting to protect through copyright law. The Plaintiff claims to be challenging the “two-dimensional artwork” on the surface of the garment, fitting it into the realm of visual art. Could this matter creating a monopoly over cheerleader uniforms?

A ruling is due in June.




Rare Photographs Win Copyright Damage Award of $1.6 Million

The Third Circuit upheld actual damages of $1.6 million in a copyright infringement case involving stem cell images. Photographer, Andrew Paul Leonard, frequently licensed his stem cell images for up to $1,500 due to their rarity. Stemtech International, Inc. utilized two of Leonard’s works on their websites, and for other promotional materials, without license.

Because of the registration timeline, Leonard was forced to argue for actual damages, which he was able to do by adopting the “fair market value” approach to damages. Leonard obtained the verdict of $1.6 million.

Does the decision sets an unreasonable precedent for considering the rarity of works in calculating damages?




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