The ongoing saga between Yves Bouvier and Dmitri Rybolovlev over Bouvier’s sale to the Russian billionaire of Leonardo’s Salvator Mundi (and a recent preemptive suit by Sotheby’s against the original sellers of the work to Bouvier) has cast unusual scrutiny over the often-private relationships between art dealers, art advisors, and their clients.  Chief among the issues between Bouvier and Rybolovlev is whether Bouvier’s resale to Rybolovlev at an allegedly markedly higher price than Bouvier purchased it for constitutes self-dealing by a trusted agent, or the time-tested adage of buy low, sell high.  This is a question of great significant for obvious reasons: in private sales the collector is often relying on the expertise of the art professional.  In any fiduciary relationship, however, it is axiomatic that the fiduciary agent (like an attorney or a trustee) cannot enrich himself at the expense of the beneficiary.  Whether Bouvier is indeed a fiduciary is a fiercely debated question for another day.

A recent dismissal in New York of a case about Cady Noland’s Log Cabin provides some welcome guidance on the contours of these relationships in the eyes of the law.  The finding that the defendant owed no exceptional duty to the plaintiff is a significant pushback against the expansive view of agency that Rybolovlev, among others, has advocated.  The decision clarifies that interaction with an expert does not elevate that expert to a position of undivided loyalty.  Rather, the terms of the relationship must be on of special trust and confidence.  The duties of actual fiduciaries are not changed by this decision, but it will help professionals and collectors understand who is, and who is not, filling that role. 

Topics: Cady Noland, Visual Artists Rights Act of 1990, VARA, conversion, breach of fiduciary duty, Yves Bouvier, Log Cabin, Dimitry Ryobolovlev, unjust enrichment, 17 U.S.C. 106A, Brett Shaheen, Janssen Gallery, Michael Janssen, Scott Mueller, Marisa Newman Projects, Wilhelm Schurmann

Congress has passed and President Obama is expected to sign two bills related to looted art and the availability of U.S. courts to hear disputes over them.  The Holocaust Expropriated Art Recovery (HEAR) Act of 2016 and the Foreign Cultural Exchange Jurisdictional Clarification Act (FCEJCA, for lack of a handy acronym) were both passed without objection both the House of Representatives on December 10, 2016, and are expected to be signed by President Obama shortly.  The HEAR Act is a major shift in the law of Nazi-looted art claims specifically, while the FCEJCA is controversial but unlikely to have a broad impact one way or another.  It is perhaps most remarkable that in an era of unique partisanship and political polarization, members of Congress from both parties and the President agreed on anything, let alone unanimously (sponsors include such unusual allies as Ted Cruz, Richard Blumenthal, John Cornyn, and Charles Schumer).

Topics: Legislation, Alfred Flechtheim, Russia, Nazi-looted art, Foreign Sovereign Immunities Act, 22 U.S.C. § 2459, FSIA, expropriation exception”, NS Raubkunst, Restitution, World War II, State Hermitage Museum, Charles Schumer, Immunity from Seizure Act, Chabad, 28 U.S.C. § 1605, John Cornyn, Welfenschatz, Holocaust Expropriated Art Recovery Act, Richard Blumenthal, Ted Cruz, Foreign Cultural Exchange Jurisdictional, Mikhail Piotrovsky, Politico, Anita Difanis

Paintings by Beckmann, Gris and Klee Valued at Nearly $20 Million That Once Belonged to Flechtheim Are at Issue in New York Lawsuit

Sullivan & Worcester LLP has filed suit against Bavaria and its state museums in U.S. District Court in Manhattan on behalf of our clients Dr. Michael Hulton and Mrs. Penny Hulton, heirs to the renowned and persecuted Jewish art dealer Alfred Flechtheim.  The Hultons have asked the United States District Court for the Southern District of New York to restitute several paintings by Max Beckmann, Paul Klee, and Juan Gris that are now in the possession of the German federal state of Bavaria, Adolf Hitler’s and the Nazi party’s homeland, and its Bavarian State Paintings Collections (known in German as the Bayerische Staatsgemäldesammlungen, or BSGS).  We are aided in this case by our co-counsel Markus Stoetzel and Mel Urbach, Esq.

Topics: Frankfurter Allgemeine Zeitung, Cornelius Gurlitt, Deutschlandradio. Deutsche Presse Agentur, Monuments Men, Nazi-looted art, Foreign Sovereign Immunities Act, Max Beckmann, Markus Stoetzel, Mel Urbach, Paul Klee, FSIA, Gurlitt, NS Raubkunst, Restitution, Bavaria, Sullivan & Worcester LLP, World War II, Alfred Flechteim, Bayerische Staatsgemäldesammlungen, Dr. Michael Hulton, Juan Gris, George Grosz

Estate of Graffiti Artist Sues McDonald’s Over Fast-Food Décor

The estate of Dashiell “Dash” Snow, better known as graffiti artist “Secret Snow”—has sued McDonald’s over allegedly infringing use of Snow’s street art in McDonald’s dining rooms.  The lawsuit in the Central District of California is the latest in a series of cases in which street artists are asserting their rights in copyright without any concession about whether the creation has other legal issues (i.e., trespassing or vandalism).  Based on the survival of other recent similar cases, this latest case could be a headache for the giant restaurant chain, though it may have interesting fair use arguments based on the contrasting nature of the street vs. corporate uses. 

Topics: Digital Millennium Copyright Act, Rime, Graffiti Art, 17 U.S.C. § 1202, Moschino, Dashiell Snow, Street Cred, McDonald's

Use of Confederate Flag in California Painting and Klan Imagery in Massachusetts Leads to Removal of Controversial Works

Two recent interventions by public authorities to remove controversial works of art underscore that, like last year’s Leonard Peltier painting dispute, the proper application of the First Amendment remains more elusive than it should.  In California, a state law prohibiting the display of the Confederate flag led to the removal of a specific painting from an exhibition, while north of Boston at Salem State University, a painting depicting figures in Ku Klux Klan robes was shut down entirely.  Together, these examples provide a useful of what state authorities can, and cannot do with regards to messages they find offensive.  The difference is very important.

Topics: Ku Klux Klan, The Boston Globe, Confederate Flag, First Amendment, Leonard Peltier, Salem State University, Timothy Desmond, Civil War, Garry Harley, Fresno, State of the Union

Three New Members Are Added but German Museums Can Still Decline to Participate

After nearly a year of hinting at changes the Advisory Commission in Germany that makes recommendations to state museums on claims for allegedly Nazi-looted works in their collections (“Beratende Kommission im Zusammenhang mit der Rückgabe NS-verfolgungsbedingt entzogener Kulturgüter, insbesondere aus jüdischem Besitz,” or “Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property”), the federal government announced last week the addition of three new members.  Yet despite public outcry over the outdated and opaque procedures of the commission (better known as the Limbach Commission, in reference to the late Jutta Limbach, presiding member and former judge of the Constitutional Court), none of the fundamental flaws in the panel have been confronted or addressed.  Instead, the occasion has served as little more than another photo opportunity for federal Minister of Culture Monika Grütters, whose visage dutifully accompanies all the recent announcements.

Topics: Legislation, Frankfurter Allgemeine Zeitung, Stefan Koldehoff, Beratende Kommission, Gurlitt, NS Raubkunst, Restitution, Bavarian State Paintings Collection, Looted Art, World War II, Süddeutsche Zeitung, Monika Grütters, Limbach Commission, Bayerische Staatsgemäldesammlungen, Raphael Gross, Gary Smith, Marion Eckart-Hofer, Simon Dubnow Institute, American Academy in Berlin, Rudiger Mahlo, Jewish Claims Conference

The Holocaust Expropriated Art Recovery (HEAR) Act of 2016 has been pending for several monthsnow, and was recently recommended favorably by the Senate Judiciary Committee in September. The bill would create a uniform six-year statute of limitations for Nazi-looted art claims, harmonizing an otherwise patchwork state by state system.  While that consistency was laudable, our concern was that the bill as proposed would overrule New York’s important demand and refusal approach to statutes of limitations, with the effect that many otherwise timely claims in New York might become barred.  The bill’s text has been quietly amended to correct that, and in other interesting ways as well.  With the Presidential election just two weeks away, however, it remains anyone’s guess if the bill will become law before the new Congress is seated in January.

Topics: Legislation, Nazi-looted art, Restitution, Statute of Limitations, World War II, HEAR Act, demand and refusal

The NYU School of Professional Studies and Jane C.H. Jacob of Art Vérité, Alice Farren-Bradley of the Museum Security Network, and Christopher A. Marinello of Art Recovery Group will present this year’s edition of the Art Crime Symposium next week in New York. This conference annually puts together a remarkable array of experts and speakers, and this year is no different.  Three days of panels addressed to he themes of Theft and Fraud; Looting and Destruction; and Fakes and Forgeries will challenge and illuminate the audience.  Registration is available here, and the following is drawn from the program.  Highly recommended!

Topics: Art Crime Conference, Events

For several years the topic of litigation against appraisers and authenticators has been a controversial issue, causing a number of artists’ foundations and independent professionals to refrain from giving opinions for fear of litigation, even in which they eventually prevail.  A new lawsuit against the Agnes Martin Authentication Committee underscores the importance of a pending bill in New York to shield such authenticators from liability, and the problems inherent in the status quo.  This lawsuit appears likely headed for failure just like every other similar authentication lawsuit, but that will come as cold comfort to the defendants years hence.

Topics: authentication, catalogue raisonné, Alexander Calder, Keith Haring Foundation, New York City Bar Association, connoisseurship, Andy Warhol Foundation for the Visual Arts, Mayor Gallery Ltd, Agnes Martin, Peter Doig

On November 8, 2016, a conference will take place organized jointly by the Art Law Foundation and the Art-Law Centre of the University of Geneva entitled Risks in the attribution of works of art: expert practices and legal considerations.  These organizations have steadly put forth multiple events per year that stand out for their breadth and substance.  Registration and further information are available here for this event, which promises to be another top-level presentation.  The general program (my translation) is below: 

Topics: authentication, Events, Attribution