An exhibition in Washington (state) that included art by a number of Native Americans, including Leonard Peltier, has provoked an outcry that may have Constitutional dimensions that went unconsidered. Peltier is a controversial Native American activist who was convicted of murdering in 1975 two FBI agents, Jack R. Coler and Ronald A. Williams. His conviction has long been a Rorschach Test for responses to Native American activism and the federal government’s response—Peltier has strenuously insisted he is innocent, and the FBI has adamantly maintained he was properly convicted. This has now raised its head in the realm of the public display of art, and whether the government may, or should discriminate among artists. After an outcry about the inclusion of Peltier’s art by a number of current and retired law enforcement officials, the Washington Department of Labor and Industries has announced that it will remove Peltier’s paintings from the display that marked Native American Indian Heritage Month there, and has apologized. Yet regardless of one’s opinion if Peltier’s guilt or innocence, the government has stepped in a First Amendment quagmire when it made a public forum available for expression and then removed the expressive work of only one person because of who he is. The First Amendment, after all, acts to protect expression regardless of popularity, indeed, particularly so. It is hard to argue that his work was removed for any of the reasons that courts generally permit restrictions on speech in the various kinds of public forums. It remains to be seen whether Peltier will object on those grounds.

Topics: Ray Lauer, Wounded Knee, Ronald A. Williams, North Dakota, Florida, South Dakota, American Indian Movement, Native American Indian Heritage Month, Pine Ridge Reservation, Native American, Coleman Federal Correctional Facility Coleman, National Retired Agents Association, Washington Department of Labor and Industries, First Amendment, Guardians of the Oglala Nation. GOON, Jack R. Coler, AIM, Leonard Peltier, Lakota Sioux Chippewa

Topics: cultural property, VAT, Georg Baselitz, Germany, Minister of Culture Monika Grütters, EU, Artforum, Kulturgutschutzgesetz, Gerhard Richter, cultural heritage protection law, Michael Werner, Welfenschatz

A recent injunction ruling that prohibited the destruction of the “Bicentennial Freedom Mural” in Corona, California had occasion to consider the rights asserted by the plaintiffs and artists under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A. The order ultimately granted the injunction but on different grounds, holding that the plaintiffs were unlikely to prevail on their VARA claim.

Topics: work of recognized stature, Mural Conservancy of Los Angeles, 555 U.S. 7, Moral Rights, United States Army Corps of Engineers, Cal. Civ. Code §§ 987 and 989, Inc., Visual Artists Rights Act of 1990, California, Santa Ana River Mainstem Project, Pippa Loengard, 54 U.S.C. § 306108, VARA, Kernochan Center for Law Media and the Arts, Corona, Ronald Kammeyer, Columbia Law School, Phillips v. Pembroke Real Estate, Copyright, Prado Dam, NHPA, Administrative Procedure Act, National Historic Preservation Act, 17 U.S.C. § 106A(a)(3)(A)-(B), 459 F.3d 128, 5 U.S.C. §§ 701-706, Winter v. Natural Res. Def. Council, SARM

Germany Runs Counter to 20 Years of International Commitments

As readers know, my clients Alan Philipp and Gerald Stiebel sued the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz (SPK) in February for restitution of the Guelph Treasure (or Welfenschatz as it is known in Germany), assisted by my co-counsel Mel Urbach, Esq. and Markus Stötzel of Marburg, Germany. As my co-counsel speak to an event tonight hosted by Congresswoman Grace Meng on the anniversary of Kristallnacht, an event inextricable to the persecution of Jews in Europe, Germany’s response to the Complaint advances a stunning revisionism about the Holocaust and the international commitments that Germany has made. While paying lip service to the seriousness of Jewish suffering, the papers filed in court are nothing less than an attempt to move the goalposts to exempt a historical period from responsibility about which there can be no serious debate. Independent condemnation was not far behind the filing.

Topics: Grace Meng, Simon Wiesenthal Center, Shoah, Adolph von Menzel, Hans Sachs, Washington Principles on Nazi-Looted Art, 1943 London Inter-Allied Declaration, Dachau, Holocaust, Mel Urbach, SPK, George Eduard Behrens, Nuremberg race laws, Holocaust revisionism, Stiftung Preussischer Kulturbesitz, Marburg, Restitution, Los Angeles, Gerald Stiebel, World War II, Markus Stötzel, Saemy Rosenberg, Deutsches Historisches Museum, Reichskristallnacht, Isaac Rosenbaum, Lucie Ruth Hackenbroch, Federal Republic of Germany, Zacharias Hackenbroch, Pariser Wochentag, Rabbi Abraham Cooper, Paris Weekday, Alan Philipp, Welfenschatz, Military Government Law 59, Frankfurt

The fusion of street art, high fashion, and the law is hardly new, but the Italian designer Moschino’s latest foray into this genre has landed the company in court. Joseph Tierney, a well known graffiti artist who works under the pseudonym “Rime”, filed a complaint against Moschino and its creative director, Jeremy Scott, alleging copyright infringement, trademark violations under the Lanham Act, and unfair competition, and appropriation of name and likeness under California law. Moschino’s allegedly unauthorized use of his work has harmed the artist in numerous ways, Tierney alleges, not the least by opening him up to accusations of selling out. In the words of Tierney’s complaint: “nothing is more antithetical to the outsider ‘street cred’ that is essential to graffiti artists than association with European chic, luxury and glamour – of which Moschino is the epitome.” This theory of harm was something we talked about at the "Copyrights on the Street" panel at the Copyright Society of the USA meeting in Newport this year, and it is now being put to the test.

Topics: Joseph Tierney, copyright management information, Vandal Eyes, Digital Millennium Copyright Act, Rime, The Wall Street Journal, Graffiti Art, 17 U.S.C. § 1202, Gigi Hadid, Hollywood Reporter, Jeremy Scott, Copyright, Moschino, Lanham Act, The New York Times

Most often in restitution battles the disagreement boils down to whether a painting was looted, and/or whether it changed hands under circumstances that failed to pass clear title to the predecessor of its current possessor. Then, controversy frequently ensues about the extent to which the possessor resists restitution on grounds other than the title of the painting (jurisdiction, statute of limitations, etc.). Rarer is the type of dispute where the parties don’t even agree about what they’re disagreeing about, like the one brewing between Austria and Poland over a painting by Pieter Bruegel the Elder that hangs in the Kunsthistorisches Museum (KHM) in Vienna, The Fight Between Carnival and Lent (1559).

Topics: Musée des Beaux Arts, Brussels, Krakow, Nazi-looted art, Diana Blonska, Gauleiter, Otto Gustav von Wächter, Feliks Kopera, Charlotte Wächter (née Bleckmann), Restitution, Kampf gegen Fasching und Fasten, Frau Wächter, Pieter Bruegel the Elder, Kunsthistorisches Museum, Poland, Austria, Museums, Vienna, The Battle Between Carnival and Lent

Topics: New Hampshire, Fritz Dietl, David Arendt, Delaware, Geneva, Oregon, Luxembourg, Pure of Love of Art Versus Mere Investment, Customs, Crozier Fine Arts, yco International Ltd., Sales & Use Taxes, Dennis Kozlowski, Delaware Freeport, Freeports, Alaska, Tax, Montana

Topics: Richard Prince, Campbell v. Acuff-Rose Music, Hildebrand Gurlitt, 510 U.S. 569, Teenage Mutant Ninja Turtle, Prince v. Cariou, Second Circuit, Canal Zone, Patrick Cariou, Toward a Fair Use Standard, Michelangelo, Suicide Girls, Inc., Google Books, The Legal Guide for Museum Professionals, Pierre Laval, Jim Bouton, Copyright, transformativeness, Fair Use, Nazi-Looted Art: Risks and Best Practices for Muse

Topics: cultural property, Sepp Dürr, Schwabinger Kunstfund, Hildebrand Gurlitt, Art Hall of the Federal Republic of Germany, Cornelius Gurlitt, Bonn Minister of Culture, Nazi-looted art, Gurlitt Collection, Entartete Kunst, Munich, World Jewish Congress, Salzburg, Restitution, Müncher Kunstfund, Der Spiegel, World War II, Task Force, Kunstmuseum Bern, Museums, Monika Grütters, Raubkunst, Green Party, Kunsthalle der Bundesrepublik Deutschland, Ronald Lauder

Topics: Boston Bar Association, Events, Copyright, Art and the Digital Age