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.
Holy Roman Empire,
Stiftung Preussischer Kulturbesitz,
Prussian Cultural Heritage Foundation,
C. Montgomery Burns,
Sigismund of Luxembourg,
Augustus II the Strong,
Sullivan has filed an amicus curiae (friend of the court) brief in the upcoming Supreme Court case Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The brief was filed as counsel of record for copyright scholar Philippa S. Loengard, the Kernochan Center for Law, Media and the Arts at Columbia Law School. The case concerns the applicability of Section 107 of the Copyright Act, which permits as a fair use that would otherwise be copyright infringement—to a print made by Andy Warhol from a photograph of the musician Prince by photographer Lynn Goldsmith. In particular, the question presented to the Court addresses the implications of the Court’s holding nearly thirty years ago in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) that allowed for the possibility that a secondary use could be considered a fair use if it were sufficiently “transformative.” What exactly that means in the context of visual art has been a fraught—and at times incoherent—subject in recent years. Our brief explains that the Court should return the analysis of fair use to the four factors established by Congress. In the case of the first of the four factors, the Court should focus on the statutory language of the purpose and character of the works. By contrast, the inquiry into the meaning or message of the works advocated by the Warhol Foundation and the amici supporting it is a fool’s errand that provides no clarity and would render the copyright in photographs effectively unenforceable. This case is not a battle between Lynn Goldsmith and Andy Warhol; those artists proved entirely capable in 1984 of arranging the balance for themselves. It is a battle between a maximalist view by the Warhol Foundation that dismisses the value of photography as a creative medium at all.
Toward a Fair Use Standard,
Campbell v. Acuff Rose Music Inc.,
Kernochan Center for Law Media and the Arts,
Philippa S. Loengard Esq.,
Columbia Law School,
Andy Warhol Foundation for the Visual Arts,
2 Live Crew,
King Philip IV of Spain,
Pierre N. Leval,
“Oh, Pretty Woman”,
Last week the Art Law Committee of the New York City Bar Association hosted a terrific two-hour event. Entitled “Rethinking Art Authentication,” the discussion aimed to address a way forward from the problems of fakes, forgeries, and authentication lawsuits that have plagued the art market in recent years. It was a lively and fascinating evening.
Jacobs Technion-Cornell Institute,
Leonardo da Vinci,
New York Assembly,
Dean R. Nicyper,
New York University,
Visual Artists Rights Act,
Rethinking Art Authentication,
The Work of Art in the Age of Mechanical Reproduct,
Jennifer L. Mass,
Art Law Committee,
Trial Lawyers Association,
La Bella Principessa,
New York City Bar Association,
New York Senate,
Elmyr de Hory,
Withers Bergman LLP,
Amy M. Adler
After two months of scathing criticism, the German Ministry of Culture has submitted a watered-down, but still problematic, revision to its Cultural Heritage Protection Law. Back in July, Minister of Culture Monika Grütters announced the initial proposal to amend Germany’s law, or Kulturgutschutzgesetz. The revision, however, is optical at best, and seems targeted only to soften criticism while still taking a regressive view of cultural property that is more at home in the 18th century than the 21st. It will probably pass, to the detriment of forward thinking art market players who will move their trade elsewhere.
German Cultural Ministry,
Cultural Heritage Protection,
Native American Graves Protection and Repatriation,
Tom Brady will be in New York today at a hearing in the litigation over his 4-game suspension by Roger Goodell for allegedly being “generally aware” of the deflation of footballs in the AFC Championship thrashing of the Indianapolis Colts last winter. For good legal analysis of the absolute fiasco that is the NFL’s attempt at a middle-school science project (instigated by the condition of a football introduced from the opposing team—but congratulations on another AFC Finalist banner) and the resulting adjudicatory process, I suggest John Dowd’s blog (“The NFL's investigation of and rules against Tom Brady are a travesty, and they've resulted in uncalled-for penalties. And it's all based on a report that lacks basic integrity, fairness and credibility.”). Dowd is an experienced federal prosecutor and led the investigation, among others, into Pete Rose and gambling for Major League Baseball. Most notably, he was sufficiently offended by the whole exercise to take the issue up with no relationship to the parties. Mike Florio at ProFootballTalk and Steph Stradley have also covered the story well.
Ice Bucket Challenge,
Major League Baseball,
The U.S. District Court in Manhattan has dismissed the copyright claim filed by the Velvet Underground against the Warhol Foundation for the Visual Arts over the iconic “banana” image from the cover of the legendary The Velvet Underground and Nico album. Without reaching the merits of the claim, the court ruled that the Velvet Underground had agreed previously not to sue on any copyright theories. Reporting of the decision has been spotty at best, however, ranging from declaring a “win” for the Foundation, to suggestions that the copyright question was decided. In fact, the Court did not reach the copyright issue, and the Velvet Underground still has other trademark-based claims that remain very much alive and unaffected by the decision.
Warhol Foundation for the Visual Arts,
The Velvet Underground and Nico,
the Velvet Underground,