The idea of moral rights continues to be a notable difference between European and American intellectual property rights with respect to visual arts. Last week’s decision by the U.S. Court of Appeals for the 9th Circuit in a case brought by artist Chuck Close and others addressing the California Resale Royalty Act (the CRRA) underscores those distinctions. In holding that the CRRA is mostly preempted by federal copyright law and thus can be applied to entitle artists to secondary royalties only for sales of art in a single calendar year—1977—the 9th Circuit affirmed the skepticism with which American law continues to regard anything other than classic copyright. Given the failure of efforts to pass national legislation to provide for resale royalties, this decision is probably the end of the line for the foreseeable future in the U.S. for droit de suite, the term of art used to describe the concept.
There is, for better or worse, clearly no political constituency for resale royalties in the U.S. As I told Law360, and as we’ve opined before about the Visual Artists Rights Act of 1990 (VARA), property rights are in many ways a quintessential American policy. We all reflected on the Declaration of Independence last week, and its proclamation of the primacy of Life, Liberty, and the Pursuit of Happiness—which revised John Locke’s famous statement that governments are instituted to secure “life, liberty, and property.” Copyright is and always will be a limitation on absolute ownership, but Americans guard those limitations jealously. There is little sign that will soon change.
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Topics:
American Royalties Too Act,
Chuck Close,
Commerce Clause,
Visual Artists Rights Act of 1990,
Christie's,
Cal. Civ. Code § 986(a),
VARA,
Rep. Jerrold Nadler (D-NY),
Dormant Commerce Clause,
Preemption,
droit de suite,
California Resale Royalty Act,
U.S. Constitution,
Sotheby's,
eBay,
CRRA,
Declaration of Independence,
Copyright Act of 1976,
Morseburg v. Baylon,
John Locke,
Supremacy Clause,
1909 Copyright Act
The decision on Friday to allow our clients’ claims to proceed against German and the Stiftung Preussischer Kulturbesitz for the restitution of the Guelph Treasure (or Welfenschatz) is ground-breaking in important respects, and a welcome part of a consistent progression in the law of sovereign immunity over claims for Nazi-looted art. As we noted in our initial reaction, it is the first decision in which a U.S. court has held that it has jurisdiction over Germany or an agency or instrumentality of it under the Foreign Sovereign Immunities Act (FSIA) for a claim to Nazi-looted or purchased art—though others have certainly tried—in this case finding the so-called expropriation exception applies. Critically, it recognizes that claims about forced sales in the early days of Nazi persecution indeed create jurisdiction. Moreover, the court agreed with our clients that Germany’s various excuses to avoid litigating the substance of a forced sale involving Hermann Goering based on pleas for deference or respect to the flawed Advisory Commission are no reason to dismiss the case.
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Topics:
Germany,
Nazi-looted art,
Foreign Sovereign Immunities Act,
SPK,
Advisory Commission,
Stiftung Preussischer Kulturbesitz,
Hermann Goering,
FSIA,
Preemption,
expropriation exception”,
NS Raubkunst,
sovereign immunity,
Welfenschatz,
HEAR Act
Just three months after the Supreme Court denied certiorari review of last year’s Ninth Circuit decision finding California’s Resale Royalty Act unconstitutional under the Dormant Commerce Clause in part—but also valid in part—the U.S. District Court in Los Angeles has ruled the entire law invalid as preempted by copyright law. Critically, the opinion relies on last year’s Ninth Circuit ruling on the Commerce Clause issue to overrule a 1980 Ninth Circuit case that expressly rejected the idea that the law was preempted. This core holding of yesterday’s opinion is hard to square with Ninth Circuit precedent, but that will be tested on appeal, for sure. As before, expect proponents of Congressional efforts to enact national legislation to use this decision as support for the idea that a federal solution is necessary, but those efforts have born little fruit to date.
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Topics:
Legislation,
Preemption,
California Resale Royalty Act,
Copyright
As the ball teeters above Times Square, and the Glühwein begins to mull on the Art Law Report stove (don’t forget the cinnamon!), a gimmicky but apropos act of reflection is to look back at the biggest stories of 2014, both in art law generally and for yours truly and Sullivan & Worcester LLP. In highly subjective, unverifiable, and immediately criticizeable order, here they are. Thanks as always for reading, and best wishes for in interesting, prosperous New Year. If you agree, disagree, or otherwise, please continue to stay in touch and carry the conversation forward.
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Topics:
Comedy Central,
Deaccession,
Schwabinger Kunstfund,
Charitable Foundations,
National Gallery of Art,
Knoedler,
Cornelius Gurlitt,
Blogs,
authentication,
authenticity,
parody,
William Corcoran,
Moral Rights,
Above the Law,
Germany,
George Washington University,
Glühwein,
Nazi-looted art,
Gurlitt Collection,
Norton Simon,
Graffiti Art,
Superior Court,
Cy Pres,
Washington DC,
VARA,
Detroit Institute of Arts,
Bankruptcy,
Corcoran College of Art + Design,
Dumb Starbucks,
Preemption,
Asher Edelman,
DIA,
Restitution,
Marei Von Saher,
Artmentum GmbH,
Bavaria,
Sullivan & Worcester LLP,
World War II,
Copyright,
Times Square,
Art Fairs,
Kunstmuseum Bern,
Corcoran Gallery,
Ninth Circuit Court of Appeals,
Museums,
Raubkunst,
Detroit Bankruptcy,
Fair Use,
Münchner Kunstfund,
Foreign Cultural Exchange Jurisdictional Immunity,
Graffiti,
Civil Forfeiture,
Art Law Report
The U.S. Court of Appeals for the 9th Circuit restored last week claims by heirs of Lilly Cassirer against the Thyssen-Bornemisza Collection for the return of the Camille Pissarro painting Rue St. Honoré, après-midi, êffet de pluie.
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Topics:
Nuremberg laws,
Schwabinger Kunstfund,
Cornelius Gurlitt,
Lilly Cassirer,
California Code of Civil Procedure § 338(c),
Dorothy Nelson,
Thyssen-Bornemisza Collection,
Julius Schoeps,
Rue St. Honoré après-midi êffet de pluie,
Claude Cassirer,
Von Saher v. Norton Simon,
de Csepel,
Jacques Goudstikker,
California Code of Civil Procedure § 354.3,
Gurlitt Collection,
Foreign Sovereign Immunities Act,
Hans Sachs,
Von Saher v. Norton Simon Museum of Art at Pasaden,
Madame Soler,
Bundesgerichtshof,
Hildebrand Gurlit,
Entartete Kunst,
Hans-Heinrich Thyssen-Bornemisza,
Hungarian National Gallery,
Nazis,
Munich,
Deutches Historisches Museum,
FSIA,
Preemption,
Gurlitt,
Harry Pregerson,
Restitution,
field preemption,
Marei Von Saher,
Herzog collection,
Bavaria,
Claudia Seger-Thomschitz,
Looted Art,
World War II,
Foreign Sovereign Immunities,
Pinakothek der Moderne,
degenerate art,
Altmann v. Republic of Austria,
578 F.3d 1016,
Freistaat Bayern,
beschlagnahmte Kunst,
Camille Pissarro,
Kim McLane Wardlaw,
Nürnberger Gesetze,
Raubkunst,
Museum of Fine Arts Boston,
Cassirer v. Thyssen-Bornemisza Collection,
verschollene Kunst,
Kunstfund München
An emerging new defense to wartime art restitution claims has claimed another case. Although still confined to one district in California, the trend of dismissing such claims as better suited to resolution through the foreign affairs operations of the federal government simply cannot be ignored; wartime claims already struggling to overcome statutes of limitations could be in real trouble. The procedural history is complex, but the effect could be sweeping.
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Topics:
Legislation,
Nazi Germany,
Lilly Cassirer,
Rue Saint-Honoré après-midi effet de pluie,
California Code of Civil Procedure Section 338,
conflict preemption,
FSIA,
Preemption,
Restitution,
field preemption,
Goudstikker,
World War II,
Foreign Sovereign Immunities,
Von Saher v. Norton Simon Museum,
Cassirer v. Kingdom of Spain,
California Code of Civil Procedure 354.3
