Grossman LLP | <strong >As A New Year Begins, A Look Back At Some of the Supreme Court’s</strong > <strong >Important Art-Related Rulings, Non-Rulings, and Pending Cases from 2020</strong >
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  • As A New Year Begins, A Look Back At Some of the Supreme Court’s Important Art-Related Rulings, Non-Rulings, and Pending Cases from 2020
    As we leave 2020 behind, we’ve put together a brief update on some of the Supreme Court’s most significant 2020 decisions that have implications for the art world, as well as a couple of cases that have been argued but not yet decided.

    Court Denies Cert in 5Pointz Case, Leaving Lower Courts’ VARA Decisions In Place
    In October, the Supreme Court denied certiorari (declining to hear the appeal) in the now-famous 5Pointz litigation, which focuses on the rights of a group of artists whose graffiti art was destroyed by a property developer.  (We have written extensively about this case; see here for a summary and links to our earlier posts.)  As is often true of the Supreme Court, the justices did not issue any opinion or reasoning explaining the Court’s denial, but the practical effect is that the earlier decisions by Judge Block of the Southern District of New York, as affirmed by the Second Circuit, remain the final word in the case.  Those earlier decisions are the result of several years of litigation over claims the artists brought under the Visual Artists Rights Act of 1990 (VARA); the case eventually went to trial before an advisory jury, and the trial court judge ultimately awarded the artists the maximum statutory damages ($150,000 for each of the 45 destroyed works).  One of the defendants, real estate developer Jerry Wolkoff, died this past summer; his company was also held liable for the $6.75 million award, and the firm also agreed this fall to pay about $2 million toward the plaintiffs’ legal fees.  The Supreme Court’s denial means that future VARA litigants will continue to look to the earlier 5Pointz decisions for guidance in VARA disputes.
    Court Rejects Filmmaker’s Attempt to Sue a State For Copyright Infringement
    In March, the Court decided a narrow issue involving whether states are immune from claims for copyright infringement.  The case, Allen v. Cooper, arose out of a filmmaker’s lawsuit against the state of North Carolina for unauthorized use of some of his film footage of a shipwreck.
    Generally speaking, states cannot be sued without their consent, unless Congress has clearly abrogated that sovereign immunity by statute.  The Court examined the Copyright Remedy Clarification Act (“CRCA”), 17 U.S.C. § 511(a), which attempted to permit copyright claims against states, but concluded that Congress could not accomplish the intended abrogation simply by relying on its powers under the Copyright and Patent Clause of Article I of the Constitution.  Rather, Congress could only do so through the 14th Amendment, and then only if the remedy adopted is “congruent and proportional” to well-documented violations of due process by the States; and here, the Court held, Congress had not made sufficient legislative findings about the extent to which states have in fact been engaged in copyright infringement.  
    The majority’s opinion did lay out guidance for Congress as to how it might “try again” and accomplish statutory abrogation of states’ immunity in a way that will withstand judicial scrutiny in the future.  But until federal lawmakers pass new legislation, this decision represents a bar to claims by content creators whose works have been copied or otherwise infringed by a state government.
    Copyright Showdown Between Oracle and Google May Have Fair Use Implications
    A long-running software dispute between tech behemoths Oracle and Google, at first glance, may not seem relevant to artists.  But the case has potential ramifications for anyone with an interest in the concepts of the idea-expression dichotomy in copyright law, as well as the “fair use” defense to copyright infringement.  In fact, a number of stakeholders from the world of content creators—including the Association of American Publishers, the Motion Picture Association, and even the Foundations of famed artists Robert Rauschenberg and Andy Warhol—participated in the case as amici curiae (non-parties who can submit a brief to aid the Court’s analysis).  
    The case arises out of Google’s use of Java APIs as part of its Android operating system.  As  the Electronic Frontier Foundation has explained, API stands for “application programming interface,” a set of specifications that allow computer programs to interact with each other.  Oracle claims that it holds valid copyrights in the Java APIs at issue, and that Google has infringed those copyrights.  Software code as a general matter can be copyrighted.  But a federal district court had concluded that these APIs were not, reasoning that where “there is only one way to declare a given method functionality,” such that “everyone using that function must write that specific line of code in the same way,” such code cannot be subject to copyright.  The Federal Circuit, however, has disagreed and held that Oracle could copyright these APIs, although its infringement claims would be subject to a fair use defense.  The case ultimately went to a jury which concluded that Google had made fair use of the APIs.  But the Federal Circuit again disagreed, instead holding that, as a matter of law, Google could not prevail on a fair use defense in this case. 
    Thus, there are two primary issues before the Supreme Court.  The first is whether the APIs are copyrightable at all.  The second is whether, if they are copyrightable, Google can still escape liability here based on the fair use defense.  
    The first issue implicates what copyright law refers to as the “idea-expression dichotomy”; copyright law seeks to broadly protects expression, but also seeks to prevent situations where one author has the exclusive right to exploit an idea or system.  One aspect of this dichotomy is the “merger” doctrine, which reasons that copyright law does not protect any expression that is necessary to use an idea or system, because an exclusive right to the expression would grant an exclusive right to the idea.  Here, Google has argued that the code it copied was necessary to allow Google to employ the system that the Java platform creates, and that essentially, to preserve the idea/expression dichotomy when applying copyright law to software, courts must recognize that APIs fall on the idea side of the divide.  Oracle, for its part, argues, among other things, that Google copied the API simply to make it easier for developers to use the Android system, but that was not the only way to accomplish particular functions.  
    This first issue is of interest to artists and content creators because the art world, too, is concerned with how courts grapple with the distinction between an idea and the expression of that idea (see here for an example of one of our earlier blog posts that touches on this topic).  Amicus briefs by some content-based industry groups (such as the publishing industry) have argued that the Federal Circuit was correct in declining to apply the merger doctrine here.
    The second issue, which the Court will only reach if it determines that the APIs at issue are copyrightable, implicates the availability of the “fair use” defense, which has long been an important topic in the art world (see here for some of our blogs about other cases involving this defense).  Some content-based industry groups (including the above-mentioned publishing organization as well as a motion picture industry group) argued in their amicus briefs that the Court should reject the fair use defense here, urging that the fair use defense must be a limited one and that Google’s use of the code at issue was not “transformative” enough to warrant application of fair use.  In contrast, the amicus brief by the Rauschenberg and Warhol Foundations does not advocate for or against either party, instead focusing on the fact that “re-use” of other artists’ work has long been a central component of artistic expression, and encouraging the Court to take care that “any statements about fair use this Court may make should be limited to the specific, software development context of this case.”  Interestingly, both the motion picture industry brief and the artists’ foundations’ brief touch on the idea that the fair use defense as applied in the software context may produce case law that does not necessarily transfer well to the context of more “traditional” expressive content such as visual art—essentially suggesting that the Court should cabin its holding somehow, or at least acknowledge that fair use in the software and technology sphere raises unique issues and the Court should avoid making a ruling that might have unintended consequences when applied outside that sphere. 
    Oral arguments were held in October, and we now await the Court’s ruling, which has the potential to add further clarity to the complex and growing body of federal case law exploring the idea-expression dichotomy and the fair use defense.
    Court Hears Oral Arguments In Litigation Over Guelph Treasure
    Finally, in December, the Supreme Court heard oral arguments in a case involving the “Guelph Treasure,” a collection of medieval artifacts that was the subject of an alleged “forced sale” in Nazi-era Germany.  The plaintiffs are the heirs of a group of Jewish art dealers who had purchased the Treasure as a consortium in 1929 – but sold it in 1935 to the Prussian state (after the Nazi party took over Germany) for about half what they had paid.  The works have been in a German museum since the 1960s (see here for one of our early blog posts, which contains more background information; see the Supreme Court’s docket for this case here).  
    At this point in the case, though, the main issues before the Supreme Court are not about the details of the forced sale itself, but about whether the plaintiffs should be able to proceed at all with a suit against this foreign government entity.  The first question involves the Foreign Sovereign Immunities Act, the federal statute which generally makes foreign sovereigns immune from suit by U.S. citizens, subject to certain narrow exceptions, one of which is at issue here: the so-called “expropriation exception,” which permits jurisdiction over suits concerning property taken in violation of international law.  The second question involves Germany’s argument that, even if Plaintiffs’ claims are permissible under the FSIA, U.S. courts should still abstain from the case out of respect for “international comity”—that is, dismiss the case and require the heirs to pursue their claims in Germany.   
    The case is of interest particularly to those who follow Nazi-era art disputes (see some of our previous blog posts on that topic here), and art restitution cases generally, because artworks that changed hands in times of turmoil and upheaval sometimes end up in the possession not of a private citizen or institution, but of a foreign government.  When this happens, a plaintiff seeking the return of a such a work often faces specific legal hurdles because of the restrictions U.S. law places on a private citizen’s ability to sue a foreign government entity in the U.S. court system—so the Court’s eventual ruling this case will not only impact this group of plaintiffs, but may potentially shape the recourse available to future litigants as well.  
    We’ll continue to watch for the Supreme Court’s rulings on these pending cases, which should come in the first half of 2021.