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)
Much ink has been spilled over the new world order seemingly announced by last year’s Second Circuit decision in Prince v. Cariou with regard to copyright, fair use, appropriation art, and “transformativeness.” In a nutshell, while roundly criticized, most commentators have taken the Prince decision to announce the apotheosis of “transformativeness” among the fair use factors in § 107 of the Copyright Act. Prince looked at the four statutory factors and applied them in such a way that to be considered “transformative” was to qualify for fair use. Most troubling was the “know it when you see it” character of the opinion. The Google Books opinions took a similar view.
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Topics:
Richard Prince,
Cheshire Cat,
Copyright Act,
17 U.S.C. §106,
Seventh Circuit,
Prince v. Cariou,
Mifflin Street Block Party,
Google Books,
Campbell v. Acuff Rose,
Wisconsin,
Sorry for partying,
Madison,
Copyright,
Kienitz v. Sconnie Nation LLC,
Judge Frank Easterbrook,
First Amendment,
transformativeness,
Fair Use,
mayor Paul Soglin,
17 U.S.C. §107
After months of bitter fighting over the so-called Grand Bargain to infuse the Detroit bankruptcy with hundreds of millions of dollars from (among others) the State of Michigan, the Community Foundation for Southeast Michigan, the Kresge Foundation, the Ford Foundation, the John S. and James L. Knight Foundation, the William Davidson Foundation, the Fred A. and Barbara M. Erb Family Foundation, the Hudson-Webber Foundation, the McGregor Fund, and the Charles Stewart Mott Foundation to keep the collection of the Detroit Institute of Arts out of discussion for any sale or use as collateral, the Grand Bargain’s fiercest opponent has announced an agreement with the city and the withdrawal of its opposition to the plan of adjustment. This does not completely put an end to discussion about the role of the DIA collection, but for all intents and purposes it will likely be the last of any proposal to collateralize or sell the artwork. The episode also provides a lesson to practitioners about the cost of overzealousness.
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Topics:
the Ford Foundation,
Chapter 9,
the Fred A. and Barbara M. Erb Family Foundation,
Syncora Capital,
the Hudson-Webber Foundation,
the John S. and James L. Knight Foundation,
the William Davidson Foundation,
Financial Guaranty Insurance Co.,
Judge Rhodes,
Christie's,
valuation,
Appraisal,
Detroit,
the McGregor Fund,
Eugene Driker,
Detroit Institute of Arts,
Bankruptcy,
Gerald Rosen,
the Kresge Foundation,
the Charles Stewart Mott Foundation,
eligibility,
Detroit Bankruptcy,
the Community Foundation for Southeast Michigan,
grand bargain
As I have before, I wanted to mark the third anniversary of this blog since we posted three articles on September 15, 2011. In the last year, you (the reader) have helped the Report grow beyond our most optimistic hopes. We have done our best to cover significant events like the Gurlitt saga and restitution issues, the Detroit bankruptcy and the Detroit Institute of Arts, the Corcoran Gallery merger, auction houses and privacy in New York, the Beastie Boys GoldieBlox and copyright/fair use, the “flea market Renoir” case, and so much more. Our monthly traffic in year three has almost surpassed the readers in all of year one, and the sky is the limit. As always, the goal remains to present a fresh perspecive on these legal issues affecting the visual arts and its institutions, of use and interest both to the lawyer and non-lawyer alike.
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Topics:
Deaccession,
Gurlitt Collection,
Cy Pres,
the Art Law Report,
Gurlitt,
Restitution,
GoldieBlox,
Copyright,
Detroit Instiute of Arts,
Corcoran Gallery,
Beastie Boys,
Detroit Bankruptcy,
Fair Use
Having presumably gotten all of us to take the bait, appropriation artist XVALA has backed off and announced that he will not include versions of hacked photographs of Jennifer Lawrence, Kate Upton, and others, in a show entitled “No Delete.” The show will instead include, apparently, “the artist’s self-shot, life-size, nude images.” So, there’s that.
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Topics:
The Showroom,
reddit,
No Delete,
Jennifer Lawrence,
Florida,
Jeff Hamilton,
Kate Upton,
Cory Allen Contemporary Art,
photo hack,
XVALA,
Copyright,
Fair Use,
Warehouse Arts District
After the 1998 Washington Conference on Holocaust Era Assets and the eponymous Washington Conference Principles on Nazi-Stolen Art that came out of it, it is hardly surprising that a recurring theme has been to assess the progress of those nations that participated and signed on. Equally unsurprisingly, those assessments are usually more anecdotal than empirical, and usually arise out of a particular case or cases in the context of that country’s response.
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Topics:
Graham Bowley,
Macedonia,
Netherlands,
Terezin Declaration,
Mussolini,
Latvia,
Dr. Wesley A. Fisher,
Hungary,
ICOM,
Bulgaria,
Commission for the Compensation of Victims of Spol,
Germany,
Bavarian Minister of Culture,
Nazi-looted art,
Die Welt,
Belarus,
Lex Gurlitt,
Washington Conference on Holocaust Era Assets,
France,
Dr. Ruth Weinberger,
Romania,
Baron Mor Lipot Herzog,
Winfried Bausbeck,
Belgium,
Slovakia,
Vichy,
World Jewish Restitution Organization,
Bundesrat,
Washington Conference Principles on Nazi-Stolen Ar,
Gurlitt,
WJRO,
NS Raubkunst,
Restitution,
International Council of Museums,
Norway,
United States,
Luxembourg,
Looted Art,
World War II,
St. Petersburg,
Poland,
beschlagnahmte Kunst,
Ukraine,
Austria,
Serbia,
Conference on Jewish Material Claims Against Germa,
Italy,
Bosnia,
New York Times,
Monika Grütters,
Slovenia,
Estonia,
Museum and Politics Conference,
National Gallery,
Museum of Fine Arts,
entzogogene Kunst,
Czech Republic
For students following the various issues we cover here, there is an exciting opportunity next winter. Registration is now open for DePaul University College of Law’s 2015 National Cultural Heritage Law Moot Court Competition in Chicago on February 27-28, 2015. The competition is open to twenty-six two- and three-member student teams from ABA-accredited or provisionally accredited law schools. Schools may register up to two teams.
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Topics:
National Cultural Heritage Law Moot Court Competit,
Moral Rights,
Visual Artists Rights Act of 1990,
VARA,
Morag Kersel,
17 U.S.C. § 106A,
Copyright,
Lubna El-Gendi,
First Amendment,
Depaul Center for Art Museum & Cultural Herita,
Patty Gerstenblith,
Fifth Amendment
The Supreme Judicial Court, the high court of the Commonwealth of Massachusetts, has answered a certified question from the Bankruptcy Court about the interpretation of Massachusetts’s fine art consignment law, G.L. c. 104A. The case, Eve Plumb et al. v. Debra Casey, SJC-11519, originated with an art dealer’s bankruptcy and the claim by the trustee in that bankruptcy that the artwork in the dealer’s possession belonged to that bankrupt dealer, not the artists. The SJC has interpreted the 2006 amendments to the law for the first time and clarified the roles of everyone involved. In full disclosure, I did some work for two of the artists (Dylan Stark and Robert Stark) at an early phase of the Bankruptcy Court proceedings. Eve Plumb, now an artist but also well known as the actress who played Jan Brady on The Brady Bunch, was another of the artist-claimants. In sum, once an artist delivers a work of art for sale for the purpose of exhibition or sale, it is a consignment, and the seller/consignee holds it in trust for the artist, regardless of the consignee’s own circumstances.
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Topics:
Legislation,
consignment,
United States Supreme Court,
The Brady Bunch,
Jan Brady,
Allyson Wynne,
Commonwealth of Massachusetts,
Debora Casey,
Supreme Judicial Court,
SJC,
Bankruptcy,
Wynne Fine Art Inc.,
Eve Plumb,
Bankruptcy Court,
consignor,
G.L. c. 104A § 2,
Kenneth Wynne III,
G.L. c. 104A § 1,
U.C.C.-1 statement,
U.C.C. Secretary of State,
Chatham,
Chapter 7,
Uniform Commercial Code,
certified question,
Dylan Stark,
Robert Stark,
Eve Plumb et al. v. Debra Casey,
Jim Grace,
SJC-11519,
Arts and Business Council
As anyone with a computer now knows, the story broke last week of a supposed cache of hundreds of intimate photographs of numerous celebrities, including Kate Upton and Jennifer Lawrence, and Detroit Tigers pitcher Justin Verlander. Over the course of the week, rumors circulated about who, exactly, had them, and whether or where they would be leaked online. The story also raised important questions about privacy, security, and default cloud storage of which many people were simply unaware.
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Topics:
The Showroom,
Richard Prince,
U.S. Copyright Office,
reddit,
rights of publicity,
Second Circuit,
No Delete,
Canal Zone,
Jennifer Lawrence,
Patrick Cariou,
Florida,
Detroit Tigers,
Yes Rasta,
Saint Petersburg,
Jeff Hamilton,
Kate Upton,
Cory Allen Contemporary Art,
selfie,
photo hack,
Justin Verlander,
XVALA,
Copyright,
First Amendment,
Fair Use,
Warehouse Arts District,
Art Law Report
Almost none of the legal issues flowing from the seizure of some 1,280 works of art from Cornelius Gurlitt’s apartment in 2012, his agreement with the Bavarian prosecutor, and the ongoing review of the collection for connections to Nazi looting can be resolved until his named heir—the Kunstmuseum Bern—decides whether or not to accept that appointment. When the one-year review deadline passes (with only two public recommendations made so far), it is entirely unclear who will stand for Gurlitt’s "rights" over what is left.
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Topics:
Schwabinger Kunstfund,
Beat Giauque,
Cornelius Gurlitt,
Grosser Rat,
Nazi-looted art,
Gurlitt Collection,
canton,
Paul Klee,
Ittigen,
Trubschachen,
Samuel Leuenberger,
Kunstmuseum Bern,
Gurlitt Erbe,
Museums,
Berner Zeitung,
Münchner Kunstfund,
Kanton Bern
Opening statements concluded in the Detroit Bankruptcy trial yesterday, and as expected, the role of the art at the Detroit Institute of Arts played a central role. Although opening statements constitute nothing of evidentiary value, they obviously show the road map that the various sides intend to follow. Thanks to courtroom reporting, we have a number of clues about the themes that the lawyers intend to develop.
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Topics:
Deaccession,
Syncora Capital,
Kate Wells,
Detroit Institute of Arts,
DIA,
Detroit Bankruptcy,
grand bargain
