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)
The Art and Museum Law Group issued today a client advisory on the implications of Golan v. Holder.
The U.S. Supreme Court upheld in Golan v. Holder the constitutionality of a U.S. statute (§ 514 of the Uruguay Round Agreements Act of the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)) that “restored” U.S. copyright protection to millions of foreign-authored works that, for much of the twentieth century, had none at all. The Court found no constitutional bar to making foreign works that once were free of copyright protection now subject to the full regime of rights. The decision raises far-reaching implications for anyone who has copied, sold, or otherwise published foreign works of the 20th century that were assumed to be in the public domain, and raises anew the importance of considering the various layers of copyright protection that follow a single work.
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Topics:
Copyright
Confessed forger Wolfgang Beltracchi is now telling German weekly Der Spiegel that the 14 works to which he confessed forging at his trial last fall are part of a group of “more than 50” artists whose paintings he faked.
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Topics:
Forgery,
Wolfgang Beltracchi,
Der Spiegel
After months of inactivity and intimations of a possible settlement, the Chabad plaintiffs seeking the return of the Schneerson library have had enough, and have renewed their request to the District Court to sanction the defendants who have not complied with prior orders to return the library.
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Topics:
Russian art embargo,
sanctions,
Collections,
FSIA,
Restitution,
World War II,
Foreign Sovereign Immunities,
Chabad
Patrick Cariou has filed his much-anticipated responsive brief in the Richard Prince/Gagosian Gallery copyright infringement appeal. Cariou’s brief makes its stand on the question of transformative use. The degree to which a derivative work is transformative of a protected work is, of course, a central element of a fair use analysis about which Prince will have to persuade the Second Circuit to overturn the judgment below. In so doing, however, one starts to wonder if this case will be of less precedential value—less transformative, if you will—than it has seemed since the judgment last year.
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Topics:
Richard Prince,
Infringement,
Second Circuit,
Canal Zone,
Patrick Cariou,
Yes Rasta,
Copyright,
Gagosian Gallery
The 8th Circuit recently weighed in on the topic of public domain images and copyrighted characters. As my colleagues Kimberly Herman, Michael Matzka and Laura Stacey explore in greater detail in an advisory about the decision, a number of merchandisers were using images from public domain posters and lobby cards from movies like The Wizard of Oz, Gone with the Wind, and Tom & Jerry. Although the posters themselves were in the public domain (and complete reproductions of those posters were not infringing) the 8th Circuit analyzed further the status of the characters, not merely the images of them. A balance is struck between the right to make derivative works from public-domain images (protected) versus uses that conflict with further development of the character by the copyright holder (infringing). Also discussed is the difference between a character from a public-domain book (e.g. The Tin Man) and an original creation in the film (Tom or Jerry). My colleagues’ treatment of the decision fleshes these points out in fuller depth.
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Topics:
Copyright,
Fair Use
In place of rumored legislative efforts last summer, legislation has been formally introduced to codify under U.S. federal law droite de suite rights of resale for artists, under certain circumstances.
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Topics:
Legislation,
Resale Royalties,
droite de suite,
Resale Royalty,
Jerrold Nadler,
Christie's,
California Resale Royalty Act,
Sotheby's,
eBay
For the second time since October, the Chabad Lubavitch plaintiffs seeking the return of the movement’s library from Russia have asked the D.C. District Court to hold off on issuing any of the sanctions those plaintiffs requested earlier. More specifically this time, the plaintiffs reference ongoing discussions and ask for more time to try to bring those to fruition.
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Topics:
Russia,
Restitution,
Foreign Sovereign Immunities,
Chabad
After recent expansions of the scope of the Foreign Sovereign Immunities Act, the 2nd Circuit Court of Appeals has narrowed that statute’s route of access to the courthouse again. The 2nd Circuit affirmed on November 30, 2011 the District Court’s March 11, 2011 dismissal of Andrew Orkin’s claims to recover a Vincent Van Gogh drawing against the Swiss Confederation, the Oskar Reinhart Foundation, and the Oskar Reinhart Collection.
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Topics:
Von Saher,
Margarethe Mauthner,
Germany,
Cassirer,
Vincent Van Gogh,
FSIA,
Restitution,
World War II,
Foreign Sovereign Immunities,
Washington Principles
We’ve been following a number of prominent stories for several weeks now and thinking about what they mean in the crossover between art and the law. It’s fair to say that a theme is starting to develop, namely, that after the Beltracchi forgery trial in Cologne, the Warhol Foundation’s decision to close its doors to authentication requests, and the brewing scandal over the authenticity of paintings sold by Knoedler and other galleries, the legal significance of knowing—and even asking—the age-old question from Art History 101—“who made that?”—has come again to the fore.
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Topics:
Cologne,
Forgery,
Knoedler,
The Art Newspaper,
Inc.,
Degas,
Jackson Pollock,
catalogue raisonné,
Wolfgang Beltracchi,
Collections,
The Warhol Foundation for the Visual Arts,
Georgina Adam,
The Art Law Blog,
connoisseurship
After several months of inactivity, the first brief is available in the Richard Prince appeal of the judgment against him and the Gagosian Gallery earlier this year for infringing on the works of Patrick Cariou. Prince’s arguments of “fair use” of Cariou’s photographs failed to persuade the District Court and the infringing works were ordered impounded, a harsh and unusual remedy.
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Topics:
Richard Prince,
Canal Zone,
Patrick Cariou,
Dada,
Association of Art Museum Directors,
Copyright,
Gagosian Gallery,
Fair Use,
Andy Warhol Foundation for the Visual Arts
