News Accompanied by Deafening Silence About Ongoing Restitution Policy Failures

The German government announced recently that it had returned an additional work of art found in the Salzburg home of Cornelius Gurlitt in connection with the 2013 revelation of Gurlitt’s trove of art originally in the possession of his late father Hildebrand.  La Seine, vue du Pont-Neuf, au fond le Louvre by Camille Pissarro (1902) has been returned to the heirs of Max Heilbronn, from whom it was taken in 1942 in France.  The accompanying announcement was of a piece with the ongoing fiasco of the Gurlitt affair: a press release touting the personal involvement of Germany’s Minister of Culture Monika Grütters, a self-serving but vague statement about commitments to restitution, and absolutely no explanation or update about what is happening to the hundreds of additional paintings and objects under investigation.  The press release was also sure to mention an upcoming exhibition of Gurlitt collection works later this year.  In sum, the announcement confirms precisely the opposite of its intended effect.

 

Topics: Cornelius Gurlitt, Germany, Nazi-looted art, Washington Conference Principles, Hildebrand Gurlit, Gurlitt, NS Raubkunst, Kunstmuseum Bern, Monika Grütters, Taskforce Schwabinger Kunstfund, Welfenschatz, Minister of Culture, Gurlitt Taskforce

A controversial painting removed from display at the U.S. Capitol will not be returning to display after the U.S. District Court denied a request for an injunction before the exhibition in question came to an end.  While the court acknowledged that St. Louis teenager David Pulphus’s Untitled #1 had been removed based on its viewpoint, it ultimately held that Pulphus was not the one “speaking,” the government was.  As such, it was free to do as it wished.  The court’s opinion carefully considered the factors that determine whether the speaker is the government or a private citizen, but as it acknowledged, the line can be hard to draw.  The opinion has implicationsfor other cases where art in public spaces stirs controversy.

Topics: Wm. Lacy Clay (D-MO), First Amendment, Ferguson Missouri, St. Louis, Dave Reichert, Duncan Hunter, David Pulphus, public forum, government speech, Thomas P. (“Tip”) O’Neill, Jr.

I will not be able to attend, but there is an event in the United Kingdom on June 9, 2017 in Canterbury well worth attending for anyone interested.  Entitled “Cultural Heritage in Danger: Illicit Trafficking, Armed Conflicts and Cultural Diplomacy,” the conference organizers describe it as follows.  Registration is available here.

Topics: UNESCO, University of Kent, Brexit, Canterbury, Janet Ulph, University of Leicester, Kathryn Walker Tubb, David Gill, University of Suffolk, Karl Goodwin, London School of Economics and Political Science, Maria Dimitriou, Kristin Hausler, Tasoula Hadjitofi, 1954 Hague Convention, Artemis Papathanassiou, Dr Sophia Labadi, Dr Tatiana Flessas, Mark Harrison, Sophie Hayes, Dr Sophie Vigneron, Kent Law School, Dr. Carla Figueira

I am looking forward to being in Vienna next week for the start of the conference to be held at the University of Vienna Library beginning Tuesday evening, May 2, 2017.  The conference goes until May 4.  Entitled “Accepting and Holding Objects in Trust—an International and Interdisciplinary Perspective,” the conference will explore a variety of restitution-related topics.  From the program, the schedule is below (papers will be given in part in English, but it appears mostly in German).  Registration is available until April 30, hope to see you there.

Topics: Russian State Library, Kunsthistorisches Museum, Austria, Jewish Museum Prague, University of Vienna, Dr. Regina Hitzenberger, Hannah M. Lessing, Victims of National Socialism, Olivia Kaiser, Christina Köstner - Pemsel, Markus Stumpf, Oliver Rathkolb, Institut für Rechts-und Verfassungsgeschichte, Leonhard Weidinger, Michael Wladika, Anneliese Schallmeiner, Alexandra Caruso, Bundesdenkmalamt (BDA), Thomas Rudert, Staatliche Kunstsammlungen Dresden, Jana Kocourek, SLUB Dresden, Petra Winter, Zentralarchiv der Staatlichen Museen zu Berlin, Preußischer Kulturbesitz, Staatlichen Museen zu Berlin, Reinhard Buchberger, Michal Bušek, Tomáš Foltýn, Marcela Strouhalova, Czech National Library, Prague, Michael Nosek, Johana Prouzová, Bertrand Perz, Monika Mayer, Monika Löscher, Christian Mertens, Philipp Mettauer, Wienbibliothek im Rathaus, INJOEST, Pia Schölnberger, Johannes Gramlich, Stephan Kellner, Murray Hall, Institut für Germanistik, Kamil Zeidler, Julia Stepnowska, Nawojka Cieslinska-Lobkowicz, Lara Lempertienė, Ekaterina Oleshkevich, Anna Kawałko, Hebrew University, Jörn Kreuzer, National Fund, Dr. James Bindenagel, Institut für Zeitgeschichte, Sebastian Spitra, Christian George, UB Mainz, Sammlung Pollák in Prager Museen, Kommission für Provenienzforschung, Albertina Wien, Bayerische Staatsgemäldesammlungen München, Judaica Center National Library, Vilnius, Institut Geschichte der Juden

McDonald’s recently prevailed on personal jurisdiction grounds in a closely-watched case in California about the use of street art as décor for restaurants in the United Kingdom, but the issue has quickly arisen again.  As part of what the fast-food giant has clearly decided is a winning branding strategy, the chain’s use of graffiti from New York has now brought the threat of litigation from the so-called Bushwick Collective.  Where any such lawsuit gets filed will have a great deal to do with what happens next.

Topics: Joseph Tierney, Netherlands, Digital Millennium Copyright Act, Rime, California, specific jurisdiction, 17 U.S.C. § 1202, general jurisdiction, Moschino, personal jurisdiction, Graffiti, New York, Dashiell Snow, McDonald's, Street Art, Daimler AG v. Bauman, Virus, NDA, Don Rimx, Beau Stanton, Himbad, United Kingdom, Atomik, Bushwick Collective

After a recent discussion about whether the new Fearless Girl sculpture by Kristen Visbal in Lower Manhattan might implicate the copyright of the earlier Charging Bull sculpture that has been there for nearly three decades, the sculptor who created Charging Bull has stepped to the foreground to complain that the recent installation infringes his rights.  In addition to copyright arguments, that artist (Arturo di Modica) suggests that he has a moral rights claim under the Visual Artists Rights Act of 1990 (17 U.S.C. § 106A).  But since Charging Bull predates VARA it is probably ineligible for any protection.  Even if it were eligible, the elements of VARA rights are not implicated by the installation of The Fearless Girl because nothing has actually happened to Charging Bull.  Artistic confrontation is not “distortion, mutilation or other modification” under VARA.  In short, none of the arguments he advances would bestow on him the kind of right to be asked first that he proposes.

Topics: Copyright Act, Visual Artists Rights Act of 1990, VARA, The Fearless Girl, Charging Bull, Arturo Di Modica, Kristen Visbal, State Street Global Advisors, Christina Cauterucci, Slate, Carter v. Helmsley Spear, Inc., 15 U.S.C. § 1125(c), Derivative Works, Trademark dilution

The decision on Friday to allow our clients’ claims to proceed against German and the Stiftung Preussischer Kulturbesitz for the restitution of the Guelph Treasure (or Welfenschatz) is ground-breaking in important respects, and a welcome part of a consistent progression in the law of sovereign immunity over claims for Nazi-looted art.  As we noted in our initial reaction, it is the first decision in which a U.S. court has held that it has jurisdiction over Germany or an agency or instrumentality of it under the Foreign Sovereign Immunities Act (FSIA) for a claim to Nazi-looted or purchased art—though others have certainly tried—in this case finding the so-called expropriation exception applies.  Critically, it recognizes that claims about forced sales in the early days of Nazi persecution indeed create jurisdiction.  Moreover, the court agreed with our clients that Germany’s various excuses to avoid litigating the substance of a forced sale involving Hermann Goering based on pleas for deference or respect to the flawed Advisory Commission are no reason to dismiss the case.  

Topics: Germany, Nazi-looted art, Foreign Sovereign Immunities Act, SPK, Advisory Commission, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, Preemption, expropriation exception”, NS Raubkunst, sovereign immunity, Welfenschatz, HEAR Act

Under Landmark Ruling, Germany Must Now Defend Nazi-Looted Art Claims in U.S. Court

WASHINGTON (March 31, 2017)- The United States District Court for the District of Columbia has ruled that claims over the famed Guelph Treasure can proceed against Germany in a United States court. This is the first time Germany will have to defend itself in the U.S. against allegations of looted Nazi art and artifacts. The claims arise out of the 1935 forced sale by a consortium of Jewish art dealers to Hermann Goering’s minions of the famed collection of medieval artifacts known as the Guelph Treasure.  The claims were filed by clients of Sullivan & Worcester LLP against the Federal Republic of Germany and the Prussian Cultural Heritage Foundation (the Stiftung Preussischer Kulturbesitz, or SPK).  The court rejected the Defendants’ arguments that they are immune from suit and held that the Plaintiffs’ claims can be considered a taking of property in violation of international law for the purpose of evaluating the court’s jurisdiction over Germany and the SPK..  Jed Leiber, Alan Philipp, and Gerald Stiebel may now proceed to litigate their claims for  their property’s rightful return.  Leiber, Philipp, and Stiebel are also represented by S&W’s co-counsel in this matter, Markus Stötzel and Mel Urbach, experienced counselors in the return of Nazi-looted art who have been fighting this case for over eight years and who decried Germany continuing to defend the Nazis’ and Herman Goering’s theft from Jews.

Topics: Nazi-looted art, Foreign Sovereign Immunities Act, Mel Urbach, SPK, Stiftung Preussischer Kulturbesitz, Hermann Goering, FSIA, expropriation exception”, NS Raubkunst, J.S. Goldschmidt, Markus Stötzel, Saemy Rosenberg, Adolf Hitler, Federal Republic of Germany, Zacharias Hackenbroch, Nicholas M. O'Donnell, Welfenschatz, I. Rosenbaum, Paul Körner, Wannsee Conference

The sudden appearance near Wall Street on March 8, 2017 of The Fearless Girl, a bronze life-sized depiction of a roughly ten-year old girl staring defiantly at the famous Charging Bull sculpture has prompted headlines throughout the world.  Now, a defender of Charging Bull has leveled an accusation of copyright infringement against the sculptor of The Fearless Girl, an allegation that misapprehends how copyright law affects the interplay between works of visual art.  In short, the recent sculpture is conclusively (1) not infringement of Charging Bull, but even if it were (2) would equally clearly be considered a fair use.  This example from the headlines is thus instructive to review what copyright does, and does not, cover when commentary and political statements are at issue.

Topics: Copyright Act, Copyright Fair Use, The Fearless Girl, New York Stock Exchange, Charging Bull, Arturo Di Modica, Mr. Robot, Kristen Visbal, International Women’s Day, State Street Global Advisors

We reviewed in December an important decision that addressed the duties of loyalty that art advisors may, or may not, owe to their clients in dealing in the art market.  That question—of to what extent advisors and consultants must subordinate their interests entirely to the clien—is of obvious importance in a marketplace where buyer and seller often do not interact with each other.  Whereas December’s news about the sale of Cady Noland’s Log Cabin was a reminder that advisors are not necessarily fiduciaries, this month’s decision about the sale of a Basquiat painting underscores that where a fiduciary relationship exists, the penalties for straying from those obligations can be severe.

Topics: Cady Noland, Log Cabin, Michael Schulhof, Lisa Jacobs Fine Art, Jean-Michel Basquiat, Hannelore Schulhof, Lisa Jacobs, Future Sciences Versus the Man, fiduciary duty, art advisor