In a decision long awaited by artists and auction houses in particular, the Ninth Circuit Court of Appeals has ruled that the California Resale Royalty Act of 1976 (CRA)—America’s only droit de suite—is unconstitutional top regulate any sales of art outside of California. The court concluded, however, that that portion of the law is severable from the rest, and let the regulation of in-California sales stand for further interpretation by a subsidiary panel of the appeals court. There are two likely aftereffects of this decision. Galleries and auction houses can put any concerns to rest about sales in New York in particular, but one has to wonder about the effect it will have on putting items for sale in California, which will effectively have a premium not present in other states. It also raises the possibility that the resulting piecemeal framework will motivate movement on the pending federal bill (the American Royalties Too (ART) Act of 2015) concerning resale royalties. Could this be the development that prompts movement in Congress?
Nicholas O'Donnell
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Topics: Legislation, Resale Royalties, Chuck Close, Supreme Court, Christie's, Cal. Civ. Code § 986(a), Dormant Commerce Clause, droit de suite, sales tax, Cal. Redev. Ass’n v. Matosantos, use tax, American Royalties Too (ART) Act of 2015, California Resale Royalty Act, Copyright, Ninth Circuit Court of Appeals, Sotheby's, eBay
Columbia University has been at the center of the growing conversation about campus life and sexual assault in the past year, and now is the target of a new lawsuit by a student accused of misconduct. The case spotlights the collision between free expression and disparagement and the often uneasy balance between them. It also raises some questions about the level of intimate detail included in the documents in a case that is not actually about that conduct, but rather about an educational atmosphere. Nothing in the following article should be read as an adoption of any particular version of events.
Topics: sexual assault, Jon Kessler, Columbia University, Mattress Performance/Carry That Weight, Performance Art, Title IX, Paul Nungesser, motion to strike, Federal Rules of Civil Procedure, Litigation, university disciplinary board, First Amendment, U.S. Department of Education Office of Civil Right, The Mattress Performance, Emma Sulkowicz
I am pleased to be taking part in the upcoming Art Crime and Cultural Heritage symposium at NYU next month. I will be on a panel discussing the Gurlitt case moderated by Mel Urbach, along with Chris Marinello and Wesley Fisher. I’m very much looking forward to learning from my co-panelists and the other participants. Registration is available here.
Topics: University of Kansas, Megan Fontanella, Jordan Arnold, Klein & Solomon LLP, International Foundation for Art Research, Jo Backer Laird, Amy Adler, Sandra Cobden, Alfred Flechtheim, Betty Little, NYU School of Law, Shawnee State University, Guggenheim Museum, Davis Wright Tremaine LLP, Amr Al Azm, Christopher Robinson, Marla Diaz, ARIS Title Insurance Corporation, Judd Grossman, John Cahill, Alice Farren-Bradley, Inc., Boston University, Art Recovery Group, David Goldstein, Eleonora Nagy, Schiele, Jane C. H. Jacob, James Martin, Pryor Cashman LLP, Karl Geercken, Judith Pearson, Doreen Bolger, Kevin Ray, Museum of Modern Art, Peter Herdrich, Mel Urbach, ARIS, Chris Marinello, III, Pierre Ciric, Arader Galleries, the U.S. Department of Homeland Security, William L Charron, Christie's Inc., Spencer Tomkins, W. Graham Arader, K2 Intelligence, MaryKate Cleary, Laurie Rush, Modern Sculpture Conservation LLC, Ciric Law Firm PLLC; Holocaust Art Restitution Pro, lston & Bird LLP, James Butterwick, Auctionata, Restitution, Colleen St Onge, Jonathan Illari, President’s Cultural Property Advisory Committee, Asian Art Research & Appraisals, Sullivan & Worcester LLP, Events, Simon Hornby, Senior Vice President and General Counsel, Bonnie Magness-Gardiner, Art Dealers Association of America Jane Levine, Jacob Fine Art, Wesley Fisher, Harry Ettlinger, Herrick Feinstein LLP, Baltimore Museum of Art, Portrait of Wally, Cummer Museum of Art & Gardens, Nicholas O'Donnell, National Stolen Art File and Art Crime Team, Conference on Jewish Material Claims Against Germa, Francis O'Connor, IFAR, Sotheby's, Bonhams, The Heritas Group, Ken Perenyi, Patricia J. Graham, Emily Kempin Professor of Law, Whitney Museum of American Art, Meridith Savona, Tim Carpenter, Vienna, Megan Noh, Butterwick Gallery LLC, Museum Security Network, Leopold Museum, Crozier Fine Arts Inc., Art Law Report, Mari-Claudia Jiménez, Sharon Flescher, Michael Danti, Holly Keris
UPDATE: The battle over Left Shark is not over yet! Upon closer examination, last week’s trademark-related denial involved only one of six classes (Class 41 for “live musical and dance performances”) covered in Katy Perry’s application to register a front view of the Left Shark. The Patent and Trademark Office rejected the specimen she submitted to prove use of the image as a service mark. The specimen in question was a photograph taken from the Super Bowl performance. Despite this initial rejection all of Perry's applications are still very much in play.
Topics: Left Shark, trade dress, USPTO, Halftime Show, Katy Perry, Super Bowl, Copyright, Patent and Trademark Office
Uta Werner has appealed the adverse decision of the Munich court last month with respect to her challenge to Cornelius Gurlitt’s will. Werner, the cousin of Cornelius Gurlitt, argued that the will written by Gurlitt that named the Kunstmuseum Bern as his heir (and thus to his art collection). The Munich court previously upheld the will, making the Bern museum the sole heir to Gurlitt in all respects, including not only the trove found in Munich but some 200 (arguably more significant) works found in his Salzburg, Austria home.
Topics: Cornelius Gurlitt, Uta Werner, Gurlitt Task Force, Nazi-looted art, Gurlitt Collection, Restitution, World War II, Kunstmuseum Bern, Raubkunst
There has been considerable coverage in the last week about so-called “like-kind” exchanges of art, and federal tax. This has been driven by two factors: President Obama’s 2016 proposed budget, which would eliminate the tax deferral on these “1031 exchanges” for art and collectibles, and a recent New York Times article entitled “Tax Break Used by Investors in Flipping Art Faces Scrutiny.” The prospect of actual change is dubious, but there is no question that the prospect of the elimination of this tax deferral means anyone who is considering such an exchange for their art and collectible collection should be paying attention.
Topics: 1031 Exchange, Jay Darby, Tax and Sports Update, Ernst & Young, New York Times, Like-Kind Exchange, Tax
I participated in a podcast on Friday about the denial of a portion of an application for trademark recognition to Katy Perry for the "Left Shark" phenomenon. You can listen to it here.
Topics: Left Shark, Massachusetts Lawyers Weekly, Katy Perry, Podcast, Copyright
In the afterglow of the spectacle of this year’s confusing yet captivating Super Bowl halftime show (Go Pats!), we mused about the art law ramifications of the unexpected birth of the visual Left Shark phenomenon, the costumed dancer who was famous within seconds for a certain lack of enthusiasm. The initial discussion focused on whether the dancer’s costume design within the show itself allowed Perry to control its use as a matter of copyright. The recipient of one cease and desist letter disagreed, both humorously and persuasively, principally based on precedents about costume designs, and on the nature of the use itself. Left unresolved were any arguments about fair use, but those seemed clear to us as well: a T-shirt, Twitter post, internet meme, SportsCenter commercial, etc., that evokes some level of post-modern world-weariness in contrast to Perry’s boisterous beach-party theme should be transformative enough even for the strictest of copyright constructionists. It is not clear on the public record though how much of a fight there has been over that point.
Topics: Left Shark, trade dress, USPTO, Halftime Show, Katy Perry, Super Bowl XLIX, New England Patriots, Sullivan & Worcester LLP, Super Bowl, Copyright, Patent and Trademark Office, Trending Trademarks
Twice in the last four years, a bill has been filed to adopt what is known as droit de suite, or resale royalty, in which an artist would be entitled under certain circumstances to a royalty on sales after the initial one. The most common justifications for these bills relate to fairness and uniformity. As to the first, many artists’ works do not become valuable until later in their careers, long after the works had been sold first. These artists, the argument goes, should share in the benefit of their increased regard. The uniformity argument has to do with droit de suite in other countries, though that is hardly a clear picture and many residents of those countries object to what they say is the effect on their local markets.
Topics: Equity for Visual Artists Act of 2011, Resale Royalties, Ed Markey, American Royalties Too Act, Chuck Close, Resale Royalty, Jerrold Nadler, Christie's, Tammy Baldwin, California Resale Royalties Act, Copyright, United States Copyright Office, Sotheby's, eBay, Art Law Report
In a rare development not manufactured to coincide with the anniversary of the March 18, 1990 theft of thirteen paintings from the Isabella Stewart Gardner Museum, a man was arrested this week who has been identified previously by the FBI as a “person of interest” in the theft. So has there been a break in the case? Not really, but the details bear scrutiny. If, as a judge was told by the prosecution, Robert Gentile had been recorded offering to sell the paintings for $500,000, it would be a major breakthrough (and remarkable, given that a $5 million reward is available). But the recording has not been made public, and the FBI has greatly overstated the certainty of various players' involvement before, so the view here is skeptical until further evidence.
Topics: Robert Gentile, Gardner Heist, Robert Guarente, Stephen Kurkjian, John Kerry, Isabella Stewart Gardner Museum, FBI, Bobby Donati, A. Ryan McGuigan, George Reissfelder, Breitbart.com, Vinnie Ferrara, Museums, Associated Press, Master Thieves: the Boston Gangsters who Pulled of, David Turner, Breitbart, Museum of Fine Arts
