Sunday, April 19, 2015

Case Dismissed: Collector/Gallery Dispute

A new article released by the Frankfurt Kurnit Art Law Group discusses the recent dismissal of McKenzie v. Fishko, a case brought by Richard F. McKenzie and his foundation against his dealer, Forum Gallery, and its director, Bella Fishko, (collectively “the gallery”) for breach of contract, fraud, and breach of fiduciary duty.  McKenzie purchased over 100 artworks through the gallery based on two oral agreements: one for a 5% commission on purchases at the “best possible price” of artworks by artists not represented by the gallery, and another for a 20% discount on purchases of artists represented by the gallery (primary market sales) where the gallery would act as McKenzie’s agent.

In 2011, McKenzie learned that the gallery may have been artificially inflating the price of artworks he had purchased to eliminate any “discount” and also that the gallery may have earned secret profits by misrepresenting whether a  work was purchased from another collector through the gallery or from the gallery itself.  However, on February 24, 2015, a New York federal judge found for the gallery, dismissing all of McKenzie’s claims because of a lack of evidence aside from McKenzie’s own testimony.

Frankfurt Kurnit asserts that this case follows a trend in the courts in which the burden of due diligence falls on buyers regarding the market value of artworks, especially in the absence of a written agreement. Galleries do not owe a fiduciary duty to collectors despite a long-standing relationship, unlike that owed to artists who consign their works to galleries as established under the New York Art and Cultural Affairs Law. This case emphasizes the importance of memorializing agreements between collectors and galleries.

More via Frankfurt Kurnit.


Copyright for 3D Scans

Sketchfab has published an article discussing copyright law as applied to 3D printing and scans. Public domain artworks and their replicas legally can be scanned and those scans shared based on a 1999 district court case involving photographic reproductions of public domain artworks. These scans and any models or prints made from the scans can be sold commercially because there is no copyright in the original works or in their replicas.  The scans also do not qualify for copyright because they have been considered insufficiently original by the 10th Circuit.

However, any specific improvements or changes to the original scan or any creative additions to the scan, which are substantial and can be separated from the scan itself, may be copyrightable. The copyright would be limited to the modifications or additions. Any protection for the scan may be accomplished through contract.

More via Sketchfab.


Munich Court Rejects Cousin’s Inheritance Claims to Gurlitt Collection

The trove of over 1,000 artworks, originally collected for a museum planned by Hitler, was discovered in a Munich apartment during a tax investigation in 2012. Cornelius Gurlitt, a reclusive art collector who died in May 2014, had willed the works to Kunstmuseum Bern in Switzerland. However, a cousin of Gurlitt, Uta Werner, filed a lawsuit to block the transfer of the artworks to the museum. This week, a German court rejected the suit.  As reported by the New York Times,

In a statement in German released on its website on Thursday, the Munich court said:  “The decision finds Cornelius Gurlitt’s will, in which he names the Kunstmuseum Bern as sole heir, valid. The decision dismisses the claim made by his cousin that the testator Cornelius Gurlitt was incapable of making a will at the time of signing.”

Via ARTnews.


Changes in UK Copyright Law May Affect Artists


Copyright statute during the reign of Anne, Queen of England, Scotland and Ireland from 1702-1707 and Queen of Great Britain and Ireland from 1707-1714.

Eileen Kinsella reports for artnet News on recent changes in British copyright law affecting artists, museums, art publishers, and curators. The new provisions of the Copyright, Designs and Patents Act 1988 (“CDPA”), which go into effect in 2020, affect copyright protection of mass-manufactured artistic works.  This class of works, which would include images of artworks printed in art books or on museum promotional goods, was previously treated differently in UK copyright law than artistic works which had not been copied by an industrial process.  The change extends a series of reforms in UK law in recent years as governments struggle with intellectual property in the context of the Internet.

Section 52 of the CDPA, titled “Effect of exploitation of design derived from artistic work,” previously limited copyright protection for industrially manufactured artistic works to a term of 25 years after its manufacture.  The new provisions repeal this term, extending the copyright term for such works to 70 years following the death of the author, the duration of copyright in artistic works generally.  The law will apply retroactively, so images that had been open for such use, those with expired rights (images created by artists 25 years ago) may again be protected if the artist is still alive or died less than 70 years ago. Any goods produced and sold with such images would constitute a violation of the CDPA unless a license were obtained, which, as Kinsella explains, could be prohibitively expensive.

The more troublesome issue is the penalty for such a violation. The 1988 version of the CDPA made physical copyright infringement a criminal offense punishable by a prison term; in 2002, the maximum prison term was extended to 10 years, and in 2010, the maximum fine for such offenses was increased to £50,000. In 2014, a new Intellectual Property Act extended the criminalization of copyright to registered designs (discussed in detail here and here).  In fact, these laws follows a long precedent in the UK of criminal sanctions for copyright infringement. World Trademark Review reported, “[c]riminal provisions have been in place for copyright infringement since 1864 and for trademark infringement since 1994,” Dids Macdonald, CEO of advocacy group Anti Copying In Design (ACID).

By reducing the copyright term of industrially manufactured artistic works, goods produced and sold with artistic images that infringe on the extended copyright may subject museums, galleries or art publishers to these criminal sanctions. Section 107 of the CDPA outlines the offences subject to the maximum penalty, which may also include an artist who attempts to sell an artwork which appropriates a copyrighted image (§107(1)(a)).  Such criminal liability may indeed cause the chilling effect the law usually attempts to avoid.


Chubb Advises Artist Involvement in Restoration

In response to the Visual Artists Rights Act of 1990 (“VARA”), the Chubb Group of Insurance Companies has published a white paper titled “Conservation of the Works of Living Artists” which advises consultation with living artists during the restoration of their artwork. VARA grants an artist the right to denounce a work of visual art that is distorted, destroyed, mutilated, or otherwise modified; often restoration attempts may alter or damage an artwork, leading an artist to disclaim the work and therefore eliminate any market value in the piece. According to PR Newswire, while the owner of such a work may be reimbursed through insurance, an insurer necessarily hopes to protect itself from a total loss. Involving the artist in the conservation of their work, by performing the restoration themselves or approving a plan through conservators, may help to reduce the risk of an artist disclaiming the work as a result of the restoration.

More via PR Newswire.


Chief Proponent of 1976 Copyright Act Dead at 91

Robert Kastenmeier

Robert W. Kastenmeier, a Wisconsin Democrat who in 1976 managed the first general revision of copyright law since 1909, died on Friday at his home in Arlington, Va. He was 91.

“Copyright and intellectual property is basically not ideological,” Mr. Kastenmeier said in an interview for this obituary in 2012, adding, “If you think the law has to be changed, updated, that doesn’t really have anything to do with being conservative or liberal.”

More via The NY Times.


The End of the Image at Triple Canopy

Schematic drawing for a replica of an antique basin stand, by furniture maker Frank B. Rhodes, included in Triple Canopy's Pointing Machines (Basin Stands), 2014.

Schematic drawing for a replica of an antique basin stand, by furniture maker Frank B. Rhodes, included in Triple Canopy’s Pointing Machines (Basin Stands), 2014.

The advent of 3D imaging and printing allows for the effortless production of objects, including cultural objects, based on coded, changeable data.  This technology confronts the legal definition of the image and original expression, traditionally protected under the law.

On Friday, April 10, 2015, Triple Canopy will host a conversation titled The End of the Image where Edward Lee, professor of law at IIT Chicago-Kent College of Law, Jennifer L. Roberts, Elizabeth Cary Agassiz Professor of the Humanities at Harvard University, Sergio Muñoz Sarmiento, artist and art lawyer, and Allyson Vieira, New York artist, moderated by Triple Canopy editor Alexander Provan, will probe the intersection of intellectual property, art, originality and the law in the context of emerging technologies.

The talk, which the public can attend for a $7 fee, will take place at 155 Freeman Street, Brooklyn, NY at 6:30pm.


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