Art Law Report

"Why Germany has the Prussian blues" in Apollo Magazine

Posted by Nicholas O'Donnell on January 22, 2023 at 2:06 PM

I recently tackled the public discussion in Germany about whether to rename the Stiftung Preussischer Kulturbesitz, the foundation that oversees the State Museums of Berlin and some of the most remarkable collections in the world. Readers of the Art Law Report will know this name well, the SPK is the defendant in the lawsuit brought by my clients for the restitution of the Welfenschatz, or Guelphe Treasure, that the Supreme Court heard in 2020. While I've never been shy about criticizing the SPK about its approach in our our case (which is on appeal, briefs here and here), this piece addresses a different question. Namely, what place does the name "Prussia" have in the 21st century? For anyone like me who still thinks about the historical sliding doors of the Grossdeutschelösung and Kleindeutschelösungdebate of the 19th century about how to unite the German-speaking states and duchies, this piece is for you.

 

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Topics: Holy Roman Empire, Guelph Treasure, Prussia, "Elephant Mural", Martin Luther, Stiftung Preussischer Kulturbesitz, Sueddeutsche Zeitung, Hermann Goering, Der Spiegel, Prussian Cultural Heritage Foundation, Andy Warhol, Welfenschatz, Humboldt Forum, C. Montgomery Burns, Claudia Roth, Siam, Sigismund of Luxembourg, Friedrich VI, Hohenzollern, Brandenburg, Kaliningrad, Augustus II the Strong, Nefertiti, Pergamon Altar, Annalena Bärbock, Monika Grütters, Götz Aly, Joseph Beuys, Königsberg, Nazism, Konrad Adenauer, Hermann Parzinger, Luf Boat, Bild

Van Gogh Dispute and Temporary Exhibition Loan Collide at Detroit Institute of Arts

Posted by Nicholas O'Donnell on January 20, 2023 at 11:17 AM

A new lawsuit seeking to seize a painting by Van Gogh currently at the Detroit Institute of Arts for the show “Van Gogh in America,” a painting which the plaintiff alleges was unlawfully taken has brought back into focus the law in the United States that address immunity from seizure. That is to say, what are the circumstances under which a work of art loaned on exhibition—even if stolen property—might nonetheless have to be returned to the lender? The results, and the criteria, are often surprising to the casual viewer but are important to review for museums, collectors, and anyone involved in art loans.

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Topics: Malevich, Schiele, 22 U.S.C. § 2459, Pinacoteca di Brera, Museum of Modern Art, Van Gogh, IFSA, Leopold Collection, Portrait of Wally, Immunity from Seizure Act, State Department, Detroit Institute of Art, Brokerarte Capital Partners LLC, The Reading Lady, Liseuse De Romans, George Caram Steeh, Gustavo Soter, The Novel Reader, replevin

Responsible Art Market Initiative Annual Conference—Evolutions in Collecting Art: Practices and Challenges

Posted by Nicholas O'Donnell on January 19, 2023 at 10:33 AM

The Responsible Art Market Initiative will hold its 7th Annual Conference on January 27, 2023 at artgénève at the Palexpo in Geneva, Switzerland. RAM has been holding this event annually in parallel to the art fair in Geneva, and it has become a must-attend conference for trends in market practices, standards, and risks. Registration is open through tomorrow, January 20, 2023, so don’t miss out.

This year’s conference (program here) lives up to the standards set by past events. The conference will feature two panels, and a keynote introduction that I will present on relationships between collectors, artists and galleries.

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Topics: Anne Laure Bandle, Art Law Foundation, Geneva, artgenève, Mathilde Heaton, Responsible Art Market, Phillips, Palexpo, Martin Wilson, Piergiorgio Pepe, Gallery von Bartha, Ethics of Collecting and Quantum Ethics, Stefan von Bartha, Karim Noureldin, Adèle Aschehoug, Plateforme 10, Maria de Peverelli, Amir Shariat, Lausanne, Stonehage Fleming Art Management, Richard Barnett, The National Gallery London

September 21, 2022 Event—Issues on Art, Artifacts and Archeology

Posted by Nicholas O'Donnell on September 14, 2022 at 3:07 PM

 

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Topics: Boston Bar Association, Museum of Fine Arts Boston, Victoria Reed, Sadler Curator of Provenance, Ashley Mason, Malgorzata A. Mrózek, Fitch Law Partners LLP

New Law Requires Museums in New York to Display Information About Nazi Art Looting, May be More Complicated than it Looks

Posted by Nicholas O'Donnell on August 17, 2022 at 2:40 PM

New York Governor Kathy Hochul has signed into law a new requirement requiring museums to indicate publicly any object in their collection that was displaced by the Nazis as part of what Congress has rightly called the largest organized theft of art in human history. The significance of this new rule is clear: New York is the center of the art world, and its museums hold a unique place of prominence. As readers of this blog or of my book A Tragic Fate-Law and Ethics in the Battle Over Nazi-Looted Art know, my view has long been that American museums vary widely in their candor and proactive approach to the issue of Nazi-looted art in their collections. Many have shown admirable initiative in probing their collections, while others have shown a regrettable passivity in waiting to receive and then deflect claims. Whether this bill will move the needle on that balance is the question. Transparency and disclosure have been the defining goals of the modern restitution era. This new law serves many of those ideals, but some unintended consequences may follow.

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Topics: Metropolitan Museum of Art, American Alliance of Museums, Nazi-looted art, Foreign Sovereign Immunities Act, Washington Conference on Holocaust Era Assets, Supreme Court, Washington Principles on Nazi-Confiscated Art, AAM, Museum of Modern Art, Nuremberg race laws, Washington Conference Principles on Nazi-Stolen Ar, Association of Art Museum Directors, Washington Department of Labor and Industries, Solomon R. Guggenheim Museum, Museum of Fine Arts Boston, AAMD, Military Government Law 59, State Department, Holocaust Expropriated Art Recovery Act, HEAR Act, A Tragic Fate, Law and Ethics in the Battle Over Nazi-Looted Art, Governor Kathy Hochul, Reich Citizenship Law, Animal House, Kevin Bacon

Sullivan files Supreme Court Amicus Brief to Clarify Fair Use and Transformativeness in Warhol’s Use of Lynn Goldsmith’s Prince Photos

Posted by Nicholas O'Donnell on August 15, 2022 at 10:55 AM

Sullivan has filed an amicus curiae (friend of the court) brief in the upcoming Supreme Court case Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The brief was filed as counsel of record for copyright scholar Philippa S. Loengard, the Kernochan Center for Law, Media and the Arts at Columbia Law School. The case concerns the applicability of Section 107 of the Copyright Act, which permits as a fair use that would otherwise be copyright infringement—to a print made by Andy Warhol from a photograph of the musician Prince by photographer Lynn Goldsmith. In particular, the question presented to the Court addresses the implications of the Court’s holding nearly thirty years ago in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) that allowed for the possibility that a secondary use could be considered a fair use if it were sufficiently “transformative.” What exactly that means in the context of visual art has been a fraught—and at times incoherentsubject in recent years. Our brief explains that the Court should return the analysis of fair use to the four factors established by Congress. In the case of the first of the four factors, the Court should focus on the statutory language of the purpose and character of the works. By contrast, the inquiry into the meaning or message of the works advocated by the Warhol Foundation and the amici supporting it is a fool’s errand that provides no clarity and would render the copyright in photographs effectively unenforceable. This case is not a battle between Lynn Goldsmith and Andy Warhol; those artists proved entirely capable in 1984 of arranging the balance for themselves. It is a battle between a maximalist view by the Warhol Foundation that dismisses the value of photography as a creative medium at all.

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Topics: Copyright Act, Roy Orbison, Toward a Fair Use Standard, Campbell v. Acuff Rose Music Inc., Kernochan Center for Law Media and the Arts, Philippa S. Loengard Esq., Columbia Law School, Prince, transformative, Andy Warhol, Fair Use, Andy Warhol Foundation for the Visual Arts, Condé Nast, People Magazine, The Time, 2 Live Crew, Death Valley, Velázquez, Rubens, King Philip IV of Spain, Las Meninas, Section 107, Billboard, Pierre N. Leval, “Oh, Pretty Woman”, Mickey Mouse

“ENABLERS Act” Pursues Art Market but Threatens Longstanding Protections Against Government Intrusion

Posted by Nicholas O'Donnell on July 20, 2022 at 1:39 PM

Consistent with efforts in recent years to apply banking laws to the art market, the prospects of passage of a bill in Congress that would apply those rules to a broad category of advisors and attorneys have recently increased. The “ENABLERS Act,” a gimmick of nomenclature apparent from the moment it was proposed, was briefly attached to the annual National Defense Authorization Act, which in keeping with longstanding tradition easily passed the U.S. House of Representatives on July 14, 2022. This tactic, which was also used to extend the reach of the Bank Secrecy Act to antiquities dealers in 2021, greatly enhances the odds that what seemed initially like an unserious publicity stunt might become law. Readers of the Art Law Report will not be surprised at a critical view here of the effort to place a square peg—the art market—into a round hole—bank oversight. This bill is considerably worse, however. Compounding the confusion is that despite widespread coverage about its attachment to the NDAA, the ENABLERS Act as originally proposed is not in the version of the NDAA that passed the House of Representatives last week (it was added then revised, notwithstanding at least one report to the contrary). What was approved for the moment omits the worst parts of the ENABLERS Act. But the perception that it is a done deal ironically may have the effect of lowering vigilance about its prospects. Even if this bill never becomes law, it has come much closer than it should have.

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Topics: Congress, Supreme Court, House of Representatives, AML, Money laundering, FinCEN, Financial Crimes Enforcement Network, Illicit Art and Antiquities Trafficking Protection, suspicious activity reports, Bank Secrecy Act, 31 U.S.C. § 5312(a), National Defense Authorization Act, Treasury Department, ENABLERS Act, NDAA, art market regulation, Tom Malinowski, dealers in antiquities, JOHN HENRY WIGMORE, Berd v. Lovelace, Federal Rules of Evidence, Panama Papers, International Consortium Investigative Journalists, Offshore Leaks database, English Chancery Court, Blackburn v. Crawfords Lessee, Pandora Papers

Harvard Can be Sued Over Louis Agassiz Slave Daguerreotypes from 1850

Posted by Nicholas O'Donnell on July 14, 2022 at 9:54 AM

The Supreme Judicial Court of Massachusetts (the state’s highest court) recently issued a surprising decision that permits claims against Harvard arising out of a series of daguerreotypes taken of the plaintiff’s ancestors in the 19th century by famed professor Louis Agassiz to proceed. While the SJC affirmed the dismissal of the plaintiff’s property claims that sought outright ownership, the court reinstated claims for emotional distress. The decision held that the manner in which an educational institution responds to a grievance about something in its possession may itself be actionable in the context of the institution’s relationship to the historical facts. In stretching the bounds of the traditional causes of action for negligent or reckless infliction of emotional distress to reach a sympathetic set of facts, however, the SJC has effectively abolished limits on museum liability for collections created under problematic circumstances where the response to such claims is attacked creatively enough. The issue is not whether the result is fair to Harvard, or whether the plaintiff’s family deserves recognition and justice for what was done—they do. The problem with cases that are hard or impossible to limit is that they may lead to socially positive outcomes in one instance, but can be weaponized in the next. In an era when all manner of actors are politicizing what universities should or shouldn’t teach, this opinion creates innumerable opportunities for mischief. As a result, it raises First Amendment and Due Process concerns that Harvard might plausibly petition the Supreme Court to address.

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Topics: due process, Supreme Judicial Court, SJC, Harvard, First Amendment, Museum of Fine Arts Boston, NAGPRA, Tamara Lanier, negligent infliction of emotional dismiss, Louis Agassiz, Daguerreotype, Renty Taylor, Delia Taylor, MFA, reckless infliction of emotional distress, Philip Guston, Drew Gilpin Faust

Responsible Art Market Initiative­--Intermediaries and Sustainability in the Art Market January 28, 2022 in Geneva

Posted by Nicholas O'Donnell on January 5, 2022 at 2:39 PM

After a two-year hiatus, the Responsible Art Market Initiative is planning a return to its in-person annual conference at the end of this month in Geneva. For anyone who has attended RAM events or used its catalogue of guidance and best practices, this is exciting news and hopefully a chance to gather in a format that has been informative and enjoyable for many years now. As before, the gathering will be at the Palexpo in Geneva and the artgeneve art fair. 

This year’s topic is Intermediaries and Sustainability in the Art Market. I am pleased to have shepherded a working group that has drafted practical guidelines for intermediaries in the art market. We will present the guidelines, and then several intermediaries will work through a practical case study. In addition, panelists will discuss the role of sustainability in the marketplace.

Stay tuned for registration information. Obviously conditions are changing rapidly, but I hope to see you in Geneva!

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Topics: Geneva, artgenève, Events, Responsible Art Market, Palexpo, Intermediaries

Sullivan Files Supreme Court Amicus Brief with former State Department Legal Adviser in Nazi-looted Art Case

Posted by Nicholas O'Donnell on November 22, 2021 at 5:43 PM

Today I am pleased to announce that I have filed a brief in the Supreme Court of the United States as counsel of record for amicus curiae Mark B. Feldman, former U.S. Department of State Acting Legal Adviser. We filed the brief in the case of Cassirer et al. v. Thyssen-Bornemisza Collection Foundation (“TBC”). Cassirer is the long-running dispute over title to Rue St. Honoré, après-midi, effet de pluie (Rue St. Honoré, Afternoon, Rain Effect) by Impressionist painter Camille Pissarro. The painting once belonged to Lilly Cassirer, a Jewish woman in Berlin in 1939, from whom Nazi agents “bought” the painting. The case before the Supreme Court is not about whether the painting was stolen—it is undisputed that it was. Rather, the Supreme Court will review the Ninth Circuit’s decision that Spanish law, not California law, should govern the ownership rights.

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Topics: Guelph Treasure, Lilly Cassirer, Foreign Sovereign Immunities Act, Supreme Court, SPK, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, expropriation exception”, sovereign immunity, UNESCO, Rue St. Honoré, Camille Pissarro, Baron Hans-Heinrich Thyssen- Bornemisza, Cassirer v. Thyssen-Bornemisza Collection, Welfenschatz, Jakob Scheidwimmer, Philipp v. F.R.G., Mark B. Feldman

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About the Blog


The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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