Tuesday, January 28, 2020

Top 13 Art Law Disputes of 2019

Listed in no particular order, these lucky stories and disputes certainly caused a bit of controversy in the art industry. One can also say that this abridged list is a testament to the growing number of lawsuits and legal issues in the art industrial complex.

Overall I think this list pretty much covers the top legal issues without rehashing the usual suspects and disputes (read: copyright and appropriation). There’s a little estate law, speech, public space, moral rights, and gifts, but also a bit of “woke” propaganda, labor, resale royalties, contracts, and yes, even a little copyright. If you think there’s a story (or two) that I missed, or if you know of any updates to these stories, feel free to email me.

  1. For the Love of Love. Although Robert Indiana died in May of 2018, his estate is nowhere near settled. Some attorneys of course are probably more than happy to hear that. A December 2, 2019 accounting filed with the court stated that lawyers working on this dispute have been paid nearly $4 Million, including over $500,000 for the attorney representing the Indiana estate. According to the accounting, “The law firm of Hogan Lovells LLP, based in London and Washington, D.C. has been paid $1,562,040. The law firm of Venable LLP, based in Washington, D.C., has been paid $1,397,611. Pierce Atwood LLP of Portland has been paid $211,907, Preti Flaherty of Portland has been paid $96,303, LeBlanc & Young LLP of Portland has been paid $16,128, and attorney Kelly Mellenthin has been paid $645.” As one commentator put it, “Merry Christmas to the attorneys.”
  2. “Is San Francisco really the snowflake capital of the western hemisphere?” “Yes,” according to one commentator regarding the controversy surrounding San Francisco’s George Washington High School Mural. Apparently, the San Francisco Unified School District decided against destroying the controversial mural and have instead elected to cover it up, away from the innocent eyes of San Francisco school children.
  3. Aerosol sniffing. A current “hot” topic in the artlawsphere is the question of whether painted murals on architectural buildings, visible from public space, obtain copyright and moral rights protection in the United States. Concerning this very question, Mercedes-Benz filed a lawsuit against four artists seeking a declaratory judgment that Benz’s use of three murals in Benz’s Instagram ads did not violate the artists’ copyrights. The Michigan district court declined to dismiss Benz’s complaint, and has allowed the lawsuit to proceed against the mural artists. This one, if not settled, is a very interesting case to keep an eye on.
  4. Plant your Tulips right here! Jeff Koons’s “Tulips” were finally presented and unveiled to the French. The French, no strangers to protests, shutdowns and vandalism, weren’t too happy.
  5. For the People. Ai Weiwei won his legal battle against Volkswagen over an advertisement that used one of his installations as a backdrop without his permission. In July of this year, a court in Copenhagen awarded the artist a total of 1.75 million Danish krone (approx. $260,000) in compensation for what it described as “an improper exploitation of the artwork for marketing purposes.”
  6. Aunt Noland’s Cabin. Like the Energizer bunny, here’s another lawsuit that keeps going and going: Cady Noland’s claims against collectors and galleries for what she calls, unauthorized copying, or what the defendants call, maintenance and restoration. The case was dismissed earlier this year because apparently Germany is not part of the United States (who knew?!). But, when the going gets tough, the tough…
  7. Warhol’s Prince. A New York district judge ruled that Andy Warhol’s artwork using photo image of the late-pop icon, Prince, did not violate the photographer Lynn Goldsmith’s copyright. This ruling sided with the Andy Warhol Foundation for the Visual Arts.
  8. Like the NYC subway. Art collector Steven Tananbaum, the chief investment officer of GoldenTree Asset Management LP — or, as Gagosian called him, the “imperious” multimillionaire — claims [Gagosian] lures unwary investors with promises of custom-made art, then keeps them waiting, and waiting, all the while using their payments to keep the scheme going. In his initial complaint he called it a “garden-variety, interest-free fraudulent financial routine that hearkens the name Ponzi.”
  9. Resale Royalties? What the heck has happened with the pending federal bill concerning artists’ resale royalty rights, otherwise known as The American Royalties Too Act of 2018? Remember that resale royalties provide visual artists with the opportunity to earn a percentage of the proceeds when their works are resold. Given the kangaroo-court currently in session in Congress, it’s no wonder artists’ rights are not exactly at the top of the list.
  10. The Small-Claims Enforcement (CASE) Act. CASE is legislation that proposes the creation of a voluntary small claims board within the U.S. Copyright Office — providing copyright owners with an alternative to the expensive and complicated process of bringing copyright claims to federal court. This new board, called the Copyright Claims Board (CCB), would allow recovery in each case of up to $30,000 in damages total, with a cap of $15,000 in statutory damages per work infringed.
  11. One clothes, one folds. The Marciano Art Foundation chose to shut-down rather than welcome the unionizing of young Marxists, while LA MOCA chose to fall within 2019 “woke”-guidelines and allow its staff to unionize.
  12. Whitney’s Kander. Warren B. Kanders, the vice chair of the Whitney Museum in New York, resigned from his position after more than half a year of protests against his ownership of Safariland, a company that produces tear-gas canisters and other supplies used by the military and law enforcement. Any bets on which museum board members will be forced to resign in 2020?
  13. Pretty in pink.Protesters stormed the Palace of Fine Arts in Mexico City in protest of a painting depicting Mexican revolutionary and national hero, Emiliano Zapata, dressed in pink garb and, as the artist explains, “feminized” in order to critique Zapata’s “glorified masculinity” (apparently some artists think art is about critique). Zapata’s grandson, Jorge Zapata Gonzalez, wants it removed, and threatened a lawsuit if the painting remained on exhibit. I’m not that well-versed in Mexican law, but perhaps a reader can educate me on what claims, if any, Zapata Gonzalez might have. Viva la revolucion!


“Merry Christmas to all the attorneys.”

Here’s one thing that happens when artists don’t get their estate matters in order. Since the death of artist Robert Indiana,

The law firm of Hogan Lovells LLP, based in London and Washington, D.C. has been paid $1,562,040. The law firm of Venable LLP, based in Washington, D.C., has been paid $1,397,611. Pierce Atwood LLP of Portland has been paid $211,907, Preti Flaherty of Portland has been paid $96,303, LeBlanc & Young LLP of Portland has been paid $16,128, and attorney Kelly Mellenthin has been paid $645.

Attorney James Brannan of Rockland, who represents the estate, has been paid $550,000 as personal representative which includes expenses he has incurred for the estate.

Apparently, the value of Indiana’s estate is approaching $100 million, and expected to go over that amount. Merry Christmas indeed!


Mine? Or Yours? Jill Magid and Sergio Muñoz Sarmiento

I received two emails last week asking about this event and video, and figured it would be a good time to revisit this conversation between myself and Jill Magid.

This event/conversation on intellectual and cultural property took place in February of 2014 at the Vera List Center for Art and Politics. A brief description of the event/conversation is below. You may view the entire video of the conversation and Q&A, here.

At a time when global exchanges are de rigueur, the Vera List Center for Art and Politics, in collaboration with The Art & Law Program, presents a conversation on intellectual property, local culture, and international commerce between VLC Fellow Jill Magid and artist and art lawyer Sergio Muñoz Sarmiento, facilitated by VLC director Carin Kuoni.

The conversation is anchored by artist Jill Magid’s current project, The Barragán Archives, a long-term multimedia examination of the legacy of Luis Barragán (1902–1988), one of Mexico’s most influential architects and the second winner of the prestigious Pritzker Prize (1980)—often labeled the “Nobel of Architecture.” Along with the vast majority of his architecture, Barragán’s personal archive remains in Mexico while his professional archive, including the rights to his name and work, was acquired in 1995 by Swiss furniture company Vitra, under the auspices of the newly founded Barragan Foundation. In the distance alone between archive and work arises the potential for conflict.

Framed by a discussion of the relationship between art, law, and cultural property, Magid and Muñoz Sarmiento examine the repercussions of the privatization of an artist’s (or architect’s) life work. Does private ownership, often softened by well-funded infrastructures, facilitate public access to an artist’s work or, conversely, does it restrict access? What are the legal “fictions” and cultural stories—such as Magid’s project—facilitated by such proprietary structures, and what significance and impact do they have in regards to the physical objects? Can personal and private interests align with commercial and legal agendas in ways that are productive and beneficial to a general public?

Carin Kuoni, director/curator, Vera List Center
Jill Magid, artist and 2013–2015 Vera List Center Fellow
Sergio Muñoz Sarmiento, art lawyer and founder of The Art & Law Program


Goodbye Art World, Hello Art Industry

For the past three years I’ve been using the term “art industry” in my seminars and lectures to describe the recent state of the “art world.” In brief, I think this better encapsulates the tide of, say, the last five years. By using “industry” instead of “world” or “market” I think we can better understand how visual art, certainly in the U.S. and probably globally, mirrors the state of the Hollywood movie industry.

Artnet’s Tim Schneider writes this morning about a few reasons why we have an “industry” and not a “world.” Enjoy!


“Very few artists are going to have the guts to say no to millions of dollars, because that’s what it is.”

Art dealer Stefania Bortolami on how artists could really make an impact in the art industry. And her answer is not more protests or board member removals.

Certificates of authenticity as legal instruments?

Peter Karol of New England Law,

Artists have been dramatically reshaping the fine art certificate of authenticity since the 1960s. Where traditional certificates merely certified extant objects as authentic works of a named artist, newer instruments purported both to authorize the creation of unbuilt artworks and instruct buyers how to manifest and install them. Such “Permissive Certificates” have fascinated contemporary art historians ever since. Prior scholarship has shown how such documents, essentially blueprints for art creation, force us to confront fundamental ontological questions on the nature of art, the relationship between artist, collector and viewer, and the influence of money and acquisitiveness on art generation. But rarely, if ever, have they been approached as legal instruments.

Abstract and downloadable pdf available here.


Sex With 3D Avatars of Exes and Celebs?

Apparently so.

On forums like Reddit, marketplaces like Patreon, and on standalone websites, communities of anonymous users are making, selling, and getting off to the computer-generated likenesses of celebrities and other real people. The 3D models that emerge from these communities can be articulated into any position, animated, modified, interacted with in real time, and manipulated in ways that defy the constraints of physical reality.

More here.


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