Nicholas O'Donnell
Nick’s practice focuses primarily on complex civil litigation. He represents manufacturers, individuals, investment advisers, banks, and others around the world in contract, securities, consumer protection, tort and domestic relations cases, with particular experience in the German-speaking world. He is also the editor of the Art Law Report, a blog that provides timely updates and commentary on legal issues in the museum and visual arts communities, one of his areas of expertise. Nick is a member of the Art Law Committee of the New York City Bar Association. Additionally, Nick has authored and contributed to several books on art law: — A Tragic Fate—Law and Ethics in the Battle Over Nazi-Looted Art, (Ankerwyke/ABA Publishing, 2017) — “Public Trust or Private Business? Deaccessioning Law and Ethics in the United States,” in Éthique et Patrimoine Culturel - Regard Croisés, G. Goffaux, ed., (L’Harmattan, 2016) — “Vergangenheit als Zukunft? Restitutionsstreitigkeiten in den Vereinigten Staaen,” in Ersessene Kunst—Der Fall Gurlitt, J. Heil and A. Weber, eds., (Metropol, 2015) — “Nazi-Looted Art—Risks and Best Practices for Museums,” in The Legal Guide for Museum Professionals, Julia Courtney, ed., (2015, Rowman & Littlefield)
I mostly ignored the initial twitterings about a supposedly secret train laden with gold and other Nazi-looted treasures that was buried somewhere near Wrocław, formerly Breslau, in Poland. My reasons were straightforward: just like supposed sightings of the Gardner Museum heist art, or the Amber Room, the story had all the hallmarks of a fable being peddled by someone who, perhaps not coincidentally, was suggesting that they be paid something for their trouble. Whether this is the next Gurlitt saga or just Al Capone’s vault, it’s too early to tell.
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Topics:
the Holy Roman Empire,
Al Capone’s vault,
Soviet,
Gauleiter Karl Hanke,
Königsberg,
Cornelius Gurlitt,
Breslau,
Wrocław,
Prussia,
Max Liebermann,
East Prussia,
Red Army,
Nazi Gold Train,
Amber Room,
Bernsteinzimmer,
the Hanseatic League,
Walbrzych,
Restitution,
Deputy Culture Minister Piotr Zuchowski,
World War II,
Markus Stötzel,
Poland,
the Duchy of Silesia,
Bohemia,
Riders on the Beach,
David Friedmann,
the Kingdom of Poland,
Gardner Museum heist,
the German Empire
I won’t be in the neighborhood, but the Oskar Reinhart Museum in Winterthur (Switzerland) is putting on a conference for the second year in a row on August 31. 2015 wrestling with the issue of “flight goods” in particular. “Flight goods” refers to property that was not stolen outright, nor sold under duress, but left behind because of a flight in haste from persecution. Awareness has increased in recent years about this as a category of looted property to be addressed. As with other categories, issues of law, morality, and the rights of subsequent good faith owners/possessors make for interesting discussions. Notable presenters include Matthias Frehner, whose Kunstmuseum Bern is grappling with the Gurlitt bequest, and Anja Heuss, whose Staatsgalerie Stuttgart recently restituted a work to the heirs of I. Rosenbaum. All the speakers and topics look excellent.
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Topics:
Berlin,
Dr. Peter Raue,
Walter Feilchenfeldt,
Esther Tisa Francini,
Museum Rietberg,
Olaf Ossmann,
Cornelius Gurlitt,
Marc Fehlmann,
Art Dealers Association of Switzerland,
Between Fairness and Justice for Successors and Po,
Oskar Reinhart Museum,
Anja Heuss,
Kulturstiftung der Länder,
Deutsches Zentrum Kulturgutverluste,
Claudius Ochsner,
Matthias Frehner,
Alexander Jolles,
Winterthur,
Dr. Stephanie Tasch,
Kunsthandelsverband der Schweiz,
Karin Salm,
Universität Salzburg,
Thomas Buomberger,
Restitution,
Events,
Johannes Nathan,
Looted Art,
World War II,
Staatsgalerie Stuttgart,
Switzerland,
Kunstmuseum Bern,
Andrea Baresel-Brand,
flight goods,
Zürich,
Prof. Dr. Georg Graf,
Radio SRF 2,
I. Rosenbaum,
Sibylle Ehringhaus
A sculpture in China that is remarkably similar to Anish Kapoor’s famous Cloud Gate in Chicago is highlighting how the colloquial use of words like appropriation and plagiarism, while useful and descriptive to distinguishing the creative process, can often confuse the issue when it comes to sorting out the parties’ legal rights. While the opinion here is that Kapoor has a good case for infringement (Cloud Gate-gate?), it is not the idea of plagiarism that would support his claim.
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Topics:
Donn Zaretsky,
Xinjiang,
Infringement,
Pressure,
SuicideGirls,
Foreign Sovereign Immunities Act,
Freddie Mercury,
Rahm Emmanuel,
Ma Jun,
Chicago Sun Times,
Ice Ice Baby,
David Bowie,
FSIA,
Karamay,
Copyright,
Cloud Gate,
Millennium Park,
The Art Law Blog,
Anish Kapoor,
Plagiarism,
Fair Use
The Staatsgalerie Stuttgart has agreed to return Bildnis Pfalzgraf Johann III (Portrait of Elector-Palatine Johann III), ca. 1526, by Hans Wertinger to the heirs of the art dealers Saemy Rosenberg and Isaak Rosenbaum, the owners of the art dealer firm I. Rosenbaum in Frankfurt. Rosenbaum and Rosenberg sold the Wertinger in 1936, but the proceeds were paid into a Nazi-blocked account. The work eventually ended up with collector Heinrich Scheufelen in 1948.
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Topics:
Stefan Koldehoff,
Joint Declaration,
Nazi-looted art,
Baden-Württemberg,
Washington Principles on Nazi-Looted Art,
Heinrich Scheufelen,
Die Bilder Sind Unter Uns,
SPK,
Portrait of Elector-Palatine Johann III,
Stiftung Preussischer Kulturbesitz,
Nazi terror,
Isaak Rosenbaum,
Deutschlandfunk,
Restitution,
coerced sale,
World War II,
Staatsgalerie Stuttgart,
Saemy Rosenberg,
Jürgen Walter,
Museums,
forced sale,
Zacharias Hackenbroch,
Bildnis Pfalzgraf Johann III,
Welfenschatz,
The Pictures Are Under Us,
I. Rosenbaum,
Frankfurt
Somewhat tongue in cheek, we looked on Wednesday at the potential copyright implications from a back and forth between Governor Charlie Baker and Barstool Sports, which sells “Free Brady” T shirts (playing on Shepard Fairey’ famous Hope image) challenging the New England Patriots’ quarterback’s suspension by the National Football League (“DeflateGate” or “Ballghazi,” depending on who you ask). Gov. Baker recently wore a competing vendor’s “Free Brady” T shirt when doing the Ice Bucket Challenge. Given the sales potential arising out of one of the biggest stories in the country right now (insert decline-of-society comment here), however, the financial stakes are no laughing matter. The response to Wednesday's post has been overwhelming; we had more visitors in a three-hour window than we typically get in a month.
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Topics:
National Football League,
Copyright Act,
David Portnoy,
Free Brady,
Barstool Sports,
DeflateGate,
I Love Boston Sports,
Ice Bucket Challenge,
Shepard Fairey,
Copyright,
Senator Obama,
NFL,
Hope,
Tom Brady,
Ballghazi,
Charlie Baker
Tom Brady will be in New York today at a hearing in the litigation over his 4-game suspension by Roger Goodell for allegedly being “generally aware” of the deflation of footballs in the AFC Championship thrashing of the Indianapolis Colts last winter. For good legal analysis of the absolute fiasco that is the NFL’s attempt at a middle-school science project (instigated by the condition of a football introduced from the opposing team—but congratulations on another AFC Finalist banner) and the resulting adjudicatory process, I suggest John Dowd’s blog (“The NFL's investigation of and rules against Tom Brady are a travesty, and they've resulted in uncalled-for penalties. And it's all based on a report that lacks basic integrity, fairness and credibility.”). Dowd is an experienced federal prosecutor and led the investigation, among others, into Pete Rose and gambling for Major League Baseball. Most notably, he was sufficiently offended by the whole exercise to take the issue up with no relationship to the parties. Mike Florio at ProFootballTalk and Steph Stradley have also covered the story well.
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Topics:
Left Shark,
ProFootballTalk,
ALS. Metro,
Copyright Act,
Pete Frates,
David Portnoy,
Indianapolis Colts,
AFC Championship,
Free Brady,
Mike Florio,
Barstool Sports,
Jacqueline Kennedy,
John Dowd,
Ice Bucket Challenge,
Shepard Fairey,
Major League Baseball,
Copyright,
Roger Goodell,
Senator Obama,
Hope,
AFC Finalist,
Andy Warhol,
Tom Brady,
Charlie Baker,
Massachusetts Governor,
Fair Use
Well that didn’t take long.
Just a few days after the FBI released vintage security video footage from the night before the infamous Isabella Stewart Gardner Museum heist, a lawyer has told the FBI that a former client called him to claim that he can identify a man seen in the footage. It bears noting that there are two shots showing a man in the new footage (one inside, one outside), and no indication of whether they are the same person. Regardless, George G. Burke of Quincy said that his former client was in the antiques business, and that the anonymous client knows a man in the video from that industry.
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Topics:
Quincy,
Gardner Heist,
Myles Connor,
Isabella Stewart Gardner Museum,
FBI,
Richard Abath,
William Youngworth,
George G. Burke,
Museums
As we have often lamented, real news in the Isabella Stewart Gardner heist has been rare, with coverage far more often manufactured around anniversary dates. Last week was an exception at least from the public’s standpoint when the FBI released video footage from the museum the day before the robbery in an effort to solicit the public’s assistance. The FBI posited that the men seen in the video may have been engaged in a trial run for the eventual theft, in which the thieves pretended to be police officers to gain entry to the museum after hours. Most of the recent efforts by law enforcement have focused on Robert Gentile, whom authorities have accused of having information concerning the paintings’ whereabouts. Gentile has consistently denied knowing anything, and has spent time in prison that might have been avoided had he revealed information. Gentile most recently accused the FBI of entrapment, and no progress on that front seems particularly likely, but this approach is a notable shift.
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Topics:
Robert Gentile,
Gardner Heist,
Emerald Necklace,
Mission Hill,
Isabella Stewart Gardner Museum,
FBI,
Steven Kurkjian,
Richard Jewell,
Huntington Avenue,
Museums,
Master Thieves: the Boston Gangsters who Pulled of,
Frederick Law Olmstead,
Museum of Fine Arts
A Polish man arrested in February after being accused of trying to sell in Moscow a painting looted by the German army from the National Museum of Poznan during World War II will not be extradited to Poland. The U.S. District Court in New York (Rakoff, J.) concluded that Alexander Khochinsky did not acquire "Girl with Dove" by Antoine Pesne—stolen by the German army—with the knowledge that it was stolen property, and thus, could not be extradited. While there could be a second attempt to extradite him for his conduct after he learned the Polish government considered the painting to be stolen (when he had proposed to exchange it for restitution for his mother’s home), it seems unlikely. The whereabouts of the painting are unknown.
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Topics:
Republic of Poland,
Alexander Khochinsky,
Third Reich,
Polish Ministry of Culture and National Heritage,
extradition,
Book of Acquisitions of the Greater Poland Museum,
Moscow,
Restitution,
"Girl with Dove",
World War II,
Antoine Pesne,
Kaiser Friedrich-Museum,
National Museum of Poznan,
Litigation,
Diplomatic Note No. 35-15-2013,
Rakoff
The ABA Journal has opened voting again on its annual “Blog 100,” a roll of notable legal blogs. I’ve submitted votes for the following blogs (in no particular order), which I have bookmarked and consult regularly. The great thing about blogging, I have found, is the ability it gives the reader (and the blogger) to survey multiple perspectives on a subject. So when resale royalties are under discussion, or fair use, I don’t want to read only articles that I agree with or that take the same approach that I would. I also want to hear something I never would have thought of, and expand the conversation.
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Topics:
Donn Zaretsky,
Paul Howcroft,
ABA Journal,
Stropheus,
Blogs,
Judith Prowda,
Art Law & More,
London,
Peter Bert,
Fladgate LLP,
Richard Lehun,
Constantine Cannon LLP,
Irina Tarsis,
Blog 100,
Azmina Jasani,
Pierre Valentin,
Silberman and Associates,
Dispute Resolution in Germany,
Art@Law,
Boodle Hatfield LLP,
Taylor Wessing,
Natalia Mikolajczyk,
Private Art Investor,
The Art Law Blog,
Art Law London,
Becky Shaw,
Tim Maxwell,
Center for Art Law,
Frankfurt
