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.
Public Domain Rights and Copyright Clash Over The Wizard of Oz and Gone with the Wind
Federal Legislation Proposed for Artists' Resale Royalties
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.
Topics: Legislation, Resale Royalties, droite de suite, Resale Royalty, Jerrold Nadler, Christie's, California Resale Royalty Act, Sotheby's, eBay
More Hope for a Resolution to the Russian Art Embargo?
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.
Topics: Russia, Restitution, Foreign Sovereign Immunities, Chabad
The 2nd Circuit Pulls Back on the Reach of the FSIA, Upholds Dismissal of Claim Against Switzerland for Van Gogh Drawing
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.
Topics: Von Saher, Margarethe Mauthner, Germany, Cassirer, Vincent Van Gogh, FSIA, Restitution, World War II, Foreign Sovereign Immunities, Washington Principles
Ruminations on Connoisseurship, Forgery, Knoedler and Litigation in the News
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.
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
Prince Copyright Appeal: Warhol Foundation Makes the Case to Reverse Infringement Finding
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.
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
Full Appeal of Herzog Heirs' Case Against Hungarian Museums Allowed
As discussed earlier in the Art Law Report, the Herzog heirs’ case against several Hungarian national museums survived dismissal (apart from their claims to 11 paintings whose ownership was litigated in Hungary previously). The remaining question was how much of the case would be heard on appeal: only the narrow question of Hungary’s sovereign immunity, or other parts of the decision on the defendants’ motion to dismiss (asserting, in part, that the claims were too old, that the claims were barred as acts of state, and that the United States is not the proper forum).
Topics: Hungary, Restitution, Statute of Limitations, World War II, Foreign Sovereign Immunities
“Flagellation of Christ” to be Returned to Germany
Capping today’s restitution news, word that a painting stolen in connection with World War II is being returned to Germany. The 15th-century “Flagellation of Christ” by an unknown artist of the Cologne School was taken from the Jagdschloss Grunewald outside Berlin by soldiers in the aftermath of the war. Indiana University in Bloomington, Indiana ultimately acquired the painting. The agreement to return the work actually dates to 2004.
Topics: Restitution, World War II
Neue Nationalgalerie in Berlin Returns Schmidt-Rotluff Paintings to Graetz Heirs
The regional government of Berlin has decided to return two paintings by German Expressionist Karl Schmidt-Rotluff to the heirs of the paintings’ one-time owner (article in German).
As reported by Catherine Hickley of Bloomberg in Berlin, the paintings, a 1920 self-portrait and a 1910 landscape entitled “Farm in Dangast” once belonged to Robert Graetz, a businessman from Berlin who was deported to Poland in 1942. After a claim by Graetz’s grandson Roberto (Graetz), a government panel headed by Jutta Limbach (a former constitutional judge) concluded that the loss was almost certainly the product of persecution and should be returned. Berlin Culture Secretary Andre Schmitz has now said that the government will follow the panel’s recommendation.
Topics: Berlin, Catherine Hickley, Karl Schmidt-Rotluff, Robert Graetz, Restitution, Farm in Dangast, World War II, degenerate art, Jutta Limbach, Washington Principles
A fascinating panel discussion on "artist-endowed foundations" was held on November 8, 2011 at the Sackler Museum at Harvard University. The panel was convened to share and discuss the findings of the Aspen Institute's National Study of Artist-Endowed Foundations (the “Study”). The Study defines an artist-endowed foundation as a private foundation created or endowed by a visual artist for use in furthering charitable and educational activities serving a public benefit. The foundations are generally funded with any combination of art collections, archives, libraries, intellectual property and investment assets.
Topics: Charitable Foundations, Robert Motherwell
