The U.S. Court of Appeals for the Ninth Circuit has upheld the judgment against Marei von Saher on her claims against the Norton Simon Museum in Pasadena to recover Adam and Eve by Lucas Cranach the Elder. The Cranachs belonged to Von Saher’s father-in-law Jacques Goudstikker, a renowned Dutch Jewish art dealer who fled the Netherlands. Yesterday’s decision was the latest in a complicated case, holding that the claim could not proceed because it would conflict with a judgment made by the Dutch government—in a case about paintings that no one disputes were looted by the Nazis but which the Norton Simon refuses to return. Notably, the Ninth Circuit upheld the dismissal entered two years ago by the District Court, but for different reasons. Where the trial court had held in 2016 that Von Saher was not entitled to the paintings by applying substantive Dutch post-war law, the Ninth Circuit yesterday held that it could not entertain the question because it involved a so-called “Act of State,” a doctrine under which courts will decline to review certain kinds of cases that implicate sovereign acts. It was not a complete surprise—the appeals court had hinted at the possibility of applying the doctrine back in 2014 when it remanded the case on one of its multiple trips to the appellate court—but was a curious application of it to a sale by the Dutch government, an act that is quintessentially commercial, not sovereign. It remains to be seen what Von Saher will do next. Von Saher is a complicated dispute that deserved its day in court, not the back of the hand out of “respect” for an “official” act that never actually happened, or an official act that this most recent decision actually contradicts.
Topics: Guelph Treasure, Alois Miedl, Act of State, Jacques Goudstikker, Nazi-looted art, Hermann Goering, Restitution, Marei Von Saher, Ninth Circuit, HEAR Act, A Tragic Fate, George Stroganoff, Commisssie Rechtsverkeer in oorlogstijd, Royal Decree 133, Royal Decree A6, CORVO, Royal Decree 100
The Super Bowl is America’s biggest civic holiday, in many ways. The country’s most popular sport combines with the country’s desire just to sit and watch television in a once-a-year event. This year did not disappoint, in one of the most exciting contests in the game’s history, the New England Patriots prevailed over the Seattle Seahawks 28-24, sealed by a game-winning drive by Tom Brady and a last-minute interception by Malcom Butler.
Topics: Left Shark, Seattle Seahawks, Glendale, California Gurls Richard Prince, Hooray for Everything, Halftime Show, Malcom Butler, Katy Perry, Arizona, Jay Darby, New England Patriots, NYU Law School, Super Bowl, Rorschach Test, Copyright, Garcia v. Google et al., Ninth Circuit, Tumblr, Chris Sprigman, Tom Brady, Fair Use, Rastafarians Patrick Cariou, Art Law Report
Several weeks ago, the parties to the appeal over the constitutionality of the California Resale Royalty Act (CRRA) briefed the question about whether the Ninth Circuit Court of Appeals should hear the case, rather than a three-judge panel that would otherwise be assigned to the case. The Ninth Circuit granted the petition yesterday, meaning the appeal will now go before the full court.
Topics: Legislation, Foie Gras, 538 U.S. 644, N. Randy Smith, 729 F.3d 937, Auction Houses, California Health & Safety Code § 25982, Chuck Close, 730 F.3d 1070, Moral Rights, Commerce Clause, Affordable Care Act, Ass’n des Eleveurs de Canards et d’Oies du Quebec, Judge Jacqueline H. Nguyen, Jerrold Nadler, Christie's, Research & Mfrs. of Am. v. Walsh, California Resale Royalties Act, Ethanol, Dormant Commerce Clause, 491 U.S. 324, U.S. Constitution, Copyright, royalties, Garcia, Ninth Circuit, Cal. Code Regs. tit. 17 §§ 95480–90, Sotheby's, Rocky Mountain Farmers Union v. Corey, Healy v. Beer Inst., Ferdinand F. Fernandez, eBay, Google, Mary H. Murguia
The defendants in the case on appeal over the constitutionality of California’s Resale Royalty Act have just briefed the court’s question about whether the full court should rehear the case. Responding to an order that the parties explain whether the case conflicts with recent Ninth Circuit precedent, Christie’s, Sotheby’s, and eBay all argued emphatically that no conflict justifies reinstating the law that a District Court struck down in 2012.
Topics: Legislation, Foie Gras, Resale Royalties, 538 U.S. 644, N. Randy Smith, 729 F.3d 937, Auction Houses, California Health & Safety Code § 25982, Chuck Close, 730 F.3d 1070, Moral Rights, Commerce Clause, Affordable Care Act, Innocence of Muslims, Ass’n des Eleveurs de Canards et d’Oies du Quebec, Judge Jacqueline H. Nguyen, Christie's, Research & Mfrs. of Am. v. Walsh, California Resale Royalties Act, Ethanol, Dormant Commerce Clause, 491 U.S. 324, U.S. Constitution, Copyright, royalties, Garcia, Ninth Circuit, Cal. Code Regs. tit. 17 §§ 95480–90, Sotheby's, Rocky Mountain Farmers Union v. Corey, Healy v. Beer Inst., Ferdinand F. Fernandez, eBay, Google, Low Carbon Fuel Standard, Mary H. Murguia
Following up on my recent coverage of Garcia v. Google, I had the opportunity to discuss the suit with Colin O'Keefe of LXBN. In the brief video interview, I explain the Ninth Circuit's initial ruling and why it could prove quite impactful.
After last week’s ruling (wrongly decided, in our view) that an actress in "Innocence of Muslims" is likely to prevail on her claim that she had an independently copyrightable performance distinct from the movie itself, anticipation has been high about what might happen next. Google (seeking not to take the video off YouTube) petititoned the original panel unsuccessfully for an emergency stay of the ruling pending petiton for rehearing or to the full panel of Ninth Circuit judges. That stay request was swiftly denied, except that Google was permitted to leave up clips that did not include Cindy Garcia’s performance.
The Ninth Circuit has ruled in favor of the band Green Day in a copyright case that gives much better guidance on fair use and transformativeness than this year’s earlier Prince v. Cariou Second Circuit case. Despite copying an entire image, in the backdrop of a video that showed onstage at a multi-million dollar concert tour, the appeals court upheld judgment in Green Day’s favor because the use added new meaning and purpose, and thus was transformative. It is a victory for expressiveness, but more importantly, a useful set of instructions that Prince failed to give.
Topics: Cariou v. Prince, Derek Seltzer, Roger Staub, Graffiti Art, Green Day, 21st Century Breakdown, East Jesus Nowhere, Copyright, Ninth Circuit, Jesus Christ, Performance Environmental Design, Scream Icon, Fair Use