A sculpture in China that is remarkably similar to Anish Kapoor’s famous Cloud Gate in Chicago is highlighting how the colloquial use of words like appropriation and plagiarism, while useful and descriptive to distinguishing the creative process, can often confuse the issue when it comes to sorting out the parties’ legal rights. While the opinion here is that Kapoor has a good case for infringement (Cloud Gate-gate?), it is not the idea of plagiarism that would support his claim.
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Topics: Donn Zaretsky, Xinjiang, Infringement, Pressure, SuicideGirls, Foreign Sovereign Immunities Act, Freddie Mercury, Rahm Emmanuel, Ma Jun, Chicago Sun Times, Ice Ice Baby, David Bowie, FSIA, Karamay, Copyright, Cloud Gate, Millennium Park, The Art Law Blog, Anish Kapoor, Plagiarism, Fair Use
There has been additional commentary in the last week on the Foreign Cultural Exchange Jurisdictional Clarification Act, including this piece at Hyperallergic in which I’m quoted. The piece reminds me to revisit a confusing subject latent in the whole discussion: immunity from suit versus immunity from seizure. Despite what one frequently reads, the current bill would have no effect at all on immunity from seizure, which seems to be most people’s concern. It would affect only a small category of exceptions for immunity from suit, that is, who can be sued, not what can be loaned into the United States.
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Topics: Foreign Cultural Exchange Jurisdictional Clarifica, Amsterdam, Thyssen-Bornemisza Collection, U.S. Federal Republic of Germany, Foreign Sovereign Immunities Act, FSIA, Restitution, Kingdom of Spain, IFSA, Foreign Sovereign Immunities, Immunity from Seizure Act, Museums, 28 U.S.C. § 1605, Foreign Cultural Exchange Jurisdictional Immunity, State Department
I’ve been talking quite a bit to friends, colleagues and clients about the impact of last week’s decision in the Cassirer v. Thyssen Bornemisza case. The New York Times had a follow up article yesterday which was an interesting treatment of the various themes at work in the case and in restitution cases in the United States generally these days. In fact, I think the effect is mostly limited, except to the extent that the decision assumes and treats as uncontroversial important principles about sales under duress and is a case that resolved title under the Foreign Sovereign Immunities Act (FSIA). As we predicted, the Times article makes clear that the museum has absolutely no intention of giving the painting back, but did float the idea of some recognition of the historical circumstances, which is progress (certainly compared to other instances in which obvious circumstances of duress are denied).
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Topics: Lilly Cassirer Neubauer, Terezin Declaration, Thyssen-Bornemisza Collection, Rue St. Honoré après-midi êffet de pluie, Jacques Goudstikker, California Code of Civil Procedure § 354.3, Nazi-looted art, Foreign Sovereign Immunities Act, Washington Conference Principles, Bakalar v. Vavra, Fritz Grünbaum, FSIA, adverse possession, expropriation exception”, Restitution, Marei Von Saher, sovereign immunity, Egon Schiele, Jakob Schweidwimmer, World War II, Foreign Sovereign Immunities, Restatement (Second) of Conflict of Laws § 222, Altmann v. Republic of Austria, Camille Pissarro, foreign affairs doctrine, Ninth Circuit Court of Appeals, Museums, Baron Hans-Heinrich Thyssen- Bornemisza, 28 U.S.C. § 1605
One of the longest running art restitution litigations in the United States has been dismissed for a second time, with another appeal likely to follow. The heirs of Lilly Cassirer Neubauer have been pursuing the return of Camille Pissarro’s Rue St. Honoré, après-midi, êffet de pluie from the Thyssen-Bornemisza Collection in Madrid for more than ten years, but on June 4, 2015 the U.S. District Court in Los Angeles ruled that the Spanish museum has acquired full title to the painting by adverse possession. The key aspect of the decision is the court’s resolution of the choice of law question, namely, should California law or Spanish law apply to the question of who owns the painting? After a lengthy analysis the court determined that Spanish law applies, and that the museum has possessed the painting long enough to have become the owner regardless of the fact that it was sold under duress. So now a case that has already been to the Ninth Circuit Court of Appeals twice will almost certainly head back a third time. The court concluded its decision by appealing to the parties to “pause, reflect, and consider whether it would be appropriate to work towards a mutually-agreeable resolution of this action, in light of Spain’s acceptance of the Washington Conference Principles and the Terezin Declaration, and, specifically, its commitment to achieve “just and fair solutions” for victims of Nazi persecution.” But it is hard to see why that would happen. Notwithstanding the dictates of the Washington Principles, the Collection has been quite content to resist the claim. Now that it has won, it is hard to imagine it suddenly taking a different view.
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Topics: Lilly Cassirer Neubauer, Terezin Declaration, Thyssen-Bornemisza Collection, Rue St. Honoré après-midi êffet de pluie, Jacques Goudstikker, California Code of Civil Procedure § 354.3, Nazi-looted art, Foreign Sovereign Immunities Act, Washington Conference Principles, FSIA, adverse possession, expropriation exception”, Restitution, Marei Von Saher, sovereign immunity, Jakob Schweidwimmer, World War II, Foreign Sovereign Immunities, Restatement (Second) of Conflict of Laws § 222, Altmann v. Republic of Austria, Camille Pissarro, foreign affairs doctrine, Ninth Circuit Court of Appeals, Museums, Baron Hans-Heinrich Thyssen- Bornemisza, 28 U.S.C. § 1605, Welfenschatz
The release last week of The Woman in Gold, the feature film adaptation of The Lady in Gold by Anne Marie O’Connor, starring Helen Mirren and Ryan Reynolds as Maria Altmann and her attorney E. Randol Schoenberg, respectively, as well as Tatiana Maslany as the younger Altmann and Daniel Brühl as Austrian journalist Hubertus Czernin, is an important opportunity to reflect on the legal importance of the case. Even today, the case provides lessons about the way some victims are still treated, and how one individual can make sure the past is never forgotten. The looting of Jewish art collections was a concerted effort whose prominence should never be forgotten. And perhaps even more, it robs those who did survive of the dignity of remembering their family experiences. Consider: the next time you gather with your extended family, look around the room. Pick something that you’re accustomed to seeing when the family meets. Now, imagine it had been stolen or surrendered under duress, and was hanging on the wall of a national collection that denied it had been taken. How would you feel? This is the dilemma faced by many claimants, and it is precisely why Altmann matters so much.
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Topics: Maria Altmann, The Lady in Gold, Adele Bloch-Bauer, The Woman in Gold, Daniel Brühl, Germany, Nazi-looted art, Academy of Fine Arts, Foreign Sovereign Immunities Act, Hitler, Tatiana Maslany, Anne Marie O’Connor, Supreme Court, A Few Good Men, Belvedere, E. Randol Schoenberg, World Jewish Congress, Stiftung Preussischer Kulturbesitz, Ryan Reynolds, FSIA, expropriation exception”, Restitution, Neue Galerie, World War II, Foreign Sovereign Immunities, Switzerland, Ferdinand Bloch-Bauer, Helen Mirren, Museums, Fritz Altmann, Gustav Klimt, Vienna, Welfenschatz, Hubertus Czernin, Ronald Lauder, Austrian National Gallery
It has been almost two weeks since I filed my clients’ claims for restitution of the Guelph Treasure (Welfenschatz).
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Topics: Maria Altmann, Frankfurter Allgemeine Zeitung, National Socialists, Third Reich, artdaily.org, Reuters, United States Supreme Court, Gestapo, Haaretz, Deutschlandradio. Deutsche Presse Agentur, Robin Young, the Guardian, The Art Newspaper, Foreign Sovereign Immunities Act, The Wall Street Journal, Deutsche Welle, Santa Fe, KRQE News 13, the Observer, Markus Stoetzel, Die Erle, Mel Urbach, Nazis, Advisory Commission, 3SAT, ZDF, Stiftung Preussischer Kulturbesitz, Washington DC, Hermann Goering, Private Wealth, Restitution, Sullivan & Worcester LLP, Here & Now, Gerald Stiebel, World War II, Foreign Sovereign Immunities, flight tax, Süddeutsche Zeitung, Adolf Hitler, United States District Court, The New York Times, Federal Republic of Germany, BBC News Europe, Alan Phillip, Welfenschatz, NPR, PrivateArtInvestor, ArtNet news
A recent story in The Art Newspaper spotlights a number of lingering issues related to stolen art, the power of U.S. courts to seize property to satisfy liability, and the role of the Immunity from Seizure Act, 22 U.S.C. § 2459 (IFSA). As we discussed recently, the prospect of a material change in U.S.-Cuba relations, which as a commercial matter haven’t existed for more than 50 years, has broad implications for the art market. Just as importantly, there are many, many unanswered questions about the fate of property in Cuba that changed hands or was nationalized as part of the Cuban Revolution in the late 1950s and onward. Simply put, there are thousands of claims worth billions of dollars for all sorts of property that exiles left behind or had taken from them. While it is still a long way off, one impact of potentially normalized relations is the prospect of sorting through those claims.
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Topics: Legislation, Malevich, Atlanta, Boston College Law School, The Art Newspaper, Immunity from Seizure, Foreign Sovereign Immunities Act, Wifredo Lam: Imagining New Worlds, 22 U.S.C. § 2459, City of Amsterdam, High Museum, McMullen Museum at Boston College, IFSA, Foreign Sovereign Immunities, Portrait of Wally, Immunity from Seizure Act, Museums, Chabad, Foreign Cultural Exchange Jurisdictional Immunity, State Department, Cuba
I filed yesterday a new civil action against the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz (the SPK, which is responsible the administration of the Berlin museums, among other things) in the United States District Court in Washington, DC. You can read the Complaint here. The lawsuit seeks the immediate restitution to my clients of the collection held by the SPK known as the Welfenschatz, or as it is referred to in English, the Guelph Treasure. My clients Gerald Stiebel and Alan Phillip are the blood relatives and successors to the consortium of Jewish art dealers who were threatened and forced by the National Socialist government into selling the Welfenschatz in 1935.
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Topics: Maria Altmann, National Socialists, Third Reich, Philipp v. Federal Republic of Germany et al. 15-c, United States Supreme Court, Gestapo, Foreign Sovereign Immunities Act, Markus Stoetzel, Mel Urbach, Nazis, Advisory Commission, Stiftung Preussischer Kulturbesitz, Washington DC, Hermann Goering, Restitution, Sullivan & Worcester LLP, Gerald Stiebel, World War II, flight tax, Adolf Hitler, United States District Court, Federal Republic of Germany, Alan Phillip, Welfenschatz
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Topics: Maria Altmann, National Socialists, Third Reich, Philipp v. Federal Republic of Germany et al. 15-c, United States Supreme Court, Gestapo, Foreign Sovereign Immunities Act, Markus Stoetzel, Mel Urbach, Nazis, Advisory Commission, Stiftung Preussischer Kulturbesitz, Washington DC, Hermann Goering, Restitution, Sullivan & Worcester LLP, Gerald Stiebel, World War II, Foreign Sovereign Immunities, flight tax, Adolf Hitler, United States District Court, Federal Republic of Germany, Alan Phillip, Welfenschatz
A quirk of parliamentary procedure is that any bill in Congress exists only for so long as that particular Congress is in session. This week, the 114th Congress took its seats, meaning that any bill not passed by both the House of Representatives and the Senate, and signed by the President, is a dead letter. This is the fate of many, many bills—indeed most. 
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Topics: Legislation, Resale Royalties, Chuck Close, Moral Rights, Nazi-looted art, Foreign Sovereign Immunities Act, 28 U.S. § 1605, Art Law Day, 114th Congress, 22 U.S.C. § 2459, City of Amsterdam, Rep. Jerrold Nadler (D-NY), FSIA, expropriation exception”, droit de suite, IFSA, Foreign Sovereign Immunities, Senate, House of Representatives, Immunity from Seizure Act, President, Foreign Cultural Exchange Jurisdictional Immunity
