(Germany’s highest court issued a much-anticipated ruling on a challenge by a collector to the listing of his painting in the so-called Lost Art database in Magdeburg, Germany. The Bundesgerichtshof (BGH) ruled that the listing will not be deleted where “based on true facts.” The ruling underscores the informative, rather than legal, nature of the database, which describes itself as documenting “cultural property that was either demonstrably seized from their owners between 1933 and 1945 as a result of Nazi persecution, or for which such a seizure cannot be ruled out.” Insofar as the case just decided involves a well-known victim of Nazi-persecution, the clarification is a welcome and important one. As always in this area, however, the hard cases are harder. The case stopped short of resolving more nuanced cases, or addressing what recourse a collector might have in situations where a listing effectively makes a painting impossible to sell. Perhaps the best course would be to take heed of the way the court decided this case: the database is a  critical tool of information, but a less useful one when it comes to sorting out legal rights.

Topics: Lost Art Database, Germany, Bundesgerichtshof, Van Gogh, Magdeburg, Nazi persecution, BGH, IFAR, Art Loss Register, A Tragic Fate, Girl from the Sabine Mountains, Francis Xavier Winterhalter, Vue de l'asile et de la Chapelle de Saint-Rémy, Elizabeth Taylor, German Lost Art Foundation, Calabrian Coast, Kalabrische Küste, Concordia University, Zentrum für Kulturgutverluste, ALR, Düsseldorf, Bettina Brückner

Following the recent Supreme Court decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith, I wrote an article in Apollo magazine discussing the result. The bottom line is that I continue to see the result as a sensibly practical one, that resets the over-reliance on a transformative test that had no limits in the execution. I also dislike the dissent more each time I read it. 

Topics: Campbell v. Acuff Rose Music Inc., Supreme Court, Copyright, Fair Use, Andy Warhol Foundation for the Visual Arts, Apollo Magazine, Kagan, Lynn Goldsmith

The Supreme Court of the United States has issued its long-awaited ruling in the dispute between photographer Lynn Goldsmith and the Andy Warhol Foundation for the Visual Arts (AWFVA) on May 18, 2023. The Court held the AWFVA’s delivery to Condé Nast magazine in 2016 of an Andy Warhol silkscreen from 1984 based on a 1981 Goldsmith photograph of the musician Prince did not satisfy the first factor (of four) of the statutory fair use elements. The Court took a narrow approach, explicitly declining to reach the question of whether Warhol’s original work would qualify for a fair use defense, holding only that the 2016 use did not.

(Williams College Museum of Art Security Badge, ca. 1993)

Topics: Cariou v. Prince, Copyright Act, Philippa Loengard, Campbell v. Acuff Rose Music Inc., Kernochan Center for Law Media and the Arts, 17 U.S.C. § 107, Columbia Law School, Andy Warhol, Fair Use, Andy Warhol Foundation for the Visual Arts, Syracuse University, Condé Nast, Kagan, Sotomayor, Roberts, Titian, Lynn Goldsmith, Vanity Fair, Thomas, Giorgione, Goya

Registration is now open here for our first in-person event in more than three years! We will meet at Phillips auction house’s stunning new locationfor lively discussions of two hot topics affecting the art world. I am very proud that my partners at Sullivan & Worcester LLP and I are one of the lead event sponsors as well. There will also be time for networking and for viewing the workscoming up for sale at Phillips’ March 8 “New Now” auction. The event is free of charge, but you must register in advance.

Topics: TEFAF, Crozier Fine Arts, Nicholas M. O'Donnell, Responsible Art Market initiative, Sustainability, Phillips, Birgit Kurtz, Nanne Dekking, Artory, Laura Lupton, Nicole Bouchard Tejeiro, Louise Carron, Klaris Law PLLC, Citi Global Wealth, Elena Zavelev, Ben Heim, NFTs, Galleries Commit, Sofie Scheerlinck, Deborah Querub

On the heels of another successful annual conference in Geneva last week, I am very pleased to announce that the Responsible Art Market Initiative will be hosting its first New York Chapter event on Thursday morning, March 2, 2023 at Phillips Auctioneers on Park Avenue. Registration will be opened soon, but two panels will discuss sustainability issues in the market, and the ever-changing challenges and opportunities presented by NFTs. We are grateful to Phillips for welcoming us to their beautiful space, where we will have a chance after the event to see the art on view for auction. Join us for RAM's unique blend of real-world art market practitioners and experts, and a chance to get together.

So, please block off your calendars and look for registration soon!

Topics: Geneva, Events, Responsible Art Market initiative, Phillips Auctioneers

I recently tackled the public discussion in Germany about whether to rename the Stiftung Preussischer Kulturbesitz, the foundation that oversees the State Museums of Berlin and some of the most remarkable collections in the world. Readers of the Art Law Report will know this name well, the SPK is the defendant in the lawsuit brought by my clients for the restitution of the Welfenschatz, or Guelphe Treasure, that the Supreme Court heard in 2020. While I've never been shy about criticizing the SPK about its approach in our our case (which is on appeal, briefs here and here), this piece addresses a different question. Namely, what place does the name "Prussia" have in the 21st century? For anyone like me who still thinks about the historical sliding doors of the Grossdeutschelösung and Kleindeutschelösungdebate of the 19th century about how to unite the German-speaking states and duchies, this piece is for you.

 

Topics: Holy Roman Empire, Prussia, "Elephant Mural", Martin Luther, Stiftung Preussischer Kulturbesitz, Sueddeutsche Zeitung, Hermann Goering, Der Spiegel, Prussian Cultural Heritage Foundation, Andy Warhol, Welfenschatz, Humboldt Forum, C. Montgomery Burns, Claudia Roth, Siam, Sigismund of Luxembourg, Friedrich VI, Hohenzollern, Brandenburg, Kaliningrad, Augustus II the Strong, Nefertiti, Pergamon Altar, Annalena Bärbock, Monika Grütters, Götz Aly, Joseph Beuys, Königsberg, Nazism, Konrad Adenauer, Hermann Parzinger, Luf Boat, Bild

A new lawsuit seeking to seize a painting by Van Gogh currently at the Detroit Institute of Arts for the show “Van Gogh in America,” a painting which the plaintiff alleges was unlawfully taken has brought back into focus the law in the United States that address immunity from seizure. That is to say, what are the circumstances under which a work of art loaned on exhibition—even if stolen property—might nonetheless have to be returned to the lender? The results, and the criteria, are often surprising to the casual viewer but are important to review for museums, collectors, and anyone involved in art loans.

Topics: Malevich, Schiele, 22 U.S.C. § 2459, Pinacoteca di Brera, Museum of Modern Art, Van Gogh, IFSA, Leopold Collection, Portrait of Wally, Immunity from Seizure Act, State Department, Detroit Institute of Art, Brokerarte Capital Partners LLC, The Reading Lady, Liseuse De Romans, George Caram Steeh, Gustavo Soter, The Novel Reader, replevin

The Responsible Art Market Initiative will hold its 7^th Annual Conference on January 27, 2023 at artgénève at the Palexpo in Geneva, Switzerland. RAM has been holding this event annually in parallel to the art fair in Geneva, and it has become a must-attend conference for trends in market practices, standards, and risks. Registration is open through tomorrow, January 20, 2023, so don’t miss out.

This year’s conference (program here) lives up to the standards set by past events. The conference will feature two panels, and a keynote introduction that I will present on relationships between collectors, artists and galleries.

Topics: Anne Laure Bandle, Art Law Foundation, Geneva, artgenève, Mathilde Heaton, Responsible Art Market, Phillips, Palexpo, Martin Wilson, Piergiorgio Pepe, Gallery von Bartha, Ethics of Collecting and Quantum Ethics, Stefan von Bartha, Karim Noureldin, Adèle Aschehoug, Plateforme 10, Maria de Peverelli, Amir Shariat, Lausanne, Stonehage Fleming Art Management, Richard Barnett, The National Gallery London

 

Topics: Boston Bar Association, Museum of Fine Arts Boston, Victoria Reed, Sadler Curator of Provenance, Ashley Mason, Malgorzata A. Mrózek, Fitch Law Partners LLP

New York Governor Kathy Hochul has signed into law a new requirement requiring museums to indicate publicly any object in their collection that was displaced by the Nazis as part of what Congress has rightly called the largest organized theft of art in human history. The significance of this new rule is clear: New York is the center of the art world, and its museums hold a unique place of prominence. As readers of this blog or of my book A Tragic Fate-Law and Ethics in the Battle Over Nazi-Looted Art know, my view has long been that American museums vary widely in their candor and proactive approach to the issue of Nazi-looted art in their collections. Many have shown admirable initiative in probing their collections, while others have shown a regrettable passivity in waiting to receive and then deflect claims. Whether this bill will move the needle on that balance is the question. Transparency and disclosure have been the defining goals of the modern restitution era. This new law serves many of those ideals, but some unintended consequences may follow.

Topics: Metropolitan Museum of Art, American Alliance of Museums, Nazi-looted art, Foreign Sovereign Immunities Act, Washington Conference on Holocaust Era Assets, Supreme Court, Washington Principles on Nazi-Confiscated Art, AAM, Museum of Modern Art, Nuremberg race laws, Washington Conference Principles on Nazi-Stolen Ar, Association of Art Museum Directors, Washington Department of Labor and Industries, Solomon R. Guggenheim Museum, Museum of Fine Arts Boston, AAMD, Military Government Law 59, State Department, Holocaust Expropriated Art Recovery Act, HEAR Act, A Tragic Fate, Law and Ethics in the Battle Over Nazi-Looted Art, Governor Kathy Hochul, Reich Citizenship Law, Animal House, Kevin Bacon