A legal battle that has spanned decades and continents has finally been resolved in a California federal court.  Last month, the Northern District of California granted partial summary judgment in favor of Alan Wofsy on copyright-infringement claims stemming from his use of certain copyrighted photographs in his comprehensive reference catalogue of Picasso’s work, holding that Wofsy’s project constitutes “fair use.”

We’ve written before about the ongoing conversation—not just in the art world, but in the courts—regarding how American copyright law should apply to the unique art form of graffiti.  In this post, we review some recent developments that may add to that conversation.
 

We wrote last year about a suit filed in New York state court (see No. 651889/2018, N.Y. Co.) by a disgruntled art collector seeking redress for the problems he has allegedly encountered in trying to purchase three sculptures by famed artist Jeff Koons.  Last month, a court ruled that the collector’s claims can proceed to the next phase of litigation.

This summer, a New York Supreme Court judge threw out another complaint filed in a long-running legal battle between London art dealer James Mayor’s gallery and members of the Agnes Martin catalogue raisonné committee, providing further comfort for art authenticators who may face litigation in retaliation for their opinions.

An arbitrator recently ordered a sister company of auction giant Christie’s to pay nearly $1.8 million in damages to another auction house, Heritage Auctions, based on Heritage’s claims related to alleged theft of its auction data.  The case serves as a reminder that art businesses depend on information, and may need to consider how they should collect, protect, and appropriately use valuable confidential data.

More than a year has passed since New York dealer Ezra Chowaiki pled guilty to federal charges related to his misconduct in cheating numerous clients in fraudulent art deals.  But the legal fallout continues.  Many of his victims and business associates have asserted claims (for money or art) in connection with the bankruptcy of his gallery, Chowaiki & Co., as well as in federal forfeiture proceedings that allow claimants to assert their rights to artworks ordered forfeited to the government as part of Chowaiki’s guilty plea.

Earlier this month, a federal judge in New York dismissed a photographer’s copyright infringement claims against the Andy Warhol Foundation, after determining that a series of Warhol artworks based on an image taken by the photographer are protected as fair use. The ruling represents another entry in the ever-growing log of court decisions grappling with the sometimes-slippery concept of transformativeness in copyright law.

For years now, we have followed the bitter dispute between Dmitry Rybolovlev, a Russian billionaire, and his onetime art dealer, Swiss businessman Yves Bouvier.   Now, a new ruling permits Rybolovlev-affiliated entities to move forward with claims that auction house Sotheby’s facilitated Bouvier’s purported fraud.  (The news comes on the heels of last month’s announcement that Sotheby’s is being acquired by French-Israeli businessman Patrick Drahi, in a deal that will take the auction house off the publicly-traded stock market and put it back in private hands.)

A three-judge panel for the Second Circuit Court of Appeals has agreed with the lower court’s decision that the Metropolitan Museum of Art may keep a “rose period” Picasso painting despite claims that it was sold by a German-Jewish family to escape Nazi persecution in Italy during World War II.  See Zuckerman v. The Metropolitan Museum of Art, Case No. 18‐634, -- F.3d – (2d Cir., June 26, 2019).

Last week, an artist sued a Manhattan café and gallery in connection with a dispute over the treatment of and sales of her artworks.  The lawsuit highlights some specific aspects of New York law that may provide artists with legal protections tailored to the unique, and sometimes difficult, relationship between artists and the galleries who sell their work. 
 

This blog has for years followed the Knoedler scandal, in which a venerable New York gallery closed in disgrace in 2011 following revelations that it had sold dozens of artworks—about $60 million worth of paintings purported to be by Rothko, Pollock, Motherwell, and other major Abstract Expressionists—that turned out to be forgeries.  And the fallout from Knoedler’s implosion is ongoing even now; just this month, a federal judge issued a decision with important implications for the upcoming trials in two Knoedler cases.  The ruling also is of general interest to anyone in the art business because it emphasizes the importance of clear business procedures, corporate oversight and legal formalities when it comes to closely held business entities.

We have written on several occasions (see here, here, and here) about the tangle of disputes that have arisen from the discovery of multiple suspected forgeries of Old Master artworks.  Now, one such dispute has reached a settlement, and another has resulted in a judgment for Sotheby’s; but other questions about these works, and the Old Master market generally, remain.

​Last week, a cathedral in Germany agreed to turn over a valuable painting to the heirs of the family from whom it was stolen during World War II.  The case marks another example of the type of negotiated restitution that has become an important factor in art disputes in recent years, but stands in stark contrast to another dispute that ended in defeat a few months ago for the heirs of a Jewish art dealer who fled Germany in the years leading up to World War II. 

In a unanimous decision earlier this month, the Supreme Court resolved a debate that impacts would-be copyright infringement litigants. 

We here at Grossman LLP, along with many other legal commentators, have been following with interest the lawsuits against appropriation artist Richard Prince arising out of his controversial New Portraits works, first shown at the Gagosian Gallery in 2014, which Prince created from screen shots of photos taken by other Instagram users.  The court is now considering the defendants’ motions for summary judgment on the issue of fair use, which have been fully briefed.  But along with the main event—the summary judgment motion—the court is also considering additional motions filed by both parties with regard to each other’s expert witnesses.  These motions are worth examining because they will presumably be resolved along with the summary judgment decision, and they raise some interesting questions that may have implications in the larger arena of fair use case law.

A lawsuit pending in the United Kingdom continues the ongoing debate about how much due diligence buyers must perform when purchasing artwork, including whether such buyers must investigate price histories.   

​A contentious lawsuit is underway between a Manhattan art gallery and its former director over her handling of purportedly-confidential information when she quit her job to accept a position at another gallery.  The case raises potentially important questions about one of the key assets of any art business—information about its customers and contacts. 

Last year, we wrote about the federal lawsuit filed by visual artist Lina Iris Viktor, which alleged that her copyrights in three original artworks were infringed in the music video of a song, “All the Stars,” from the soundtrack of last year’s blockbuster movie Black Panther.   She sued the song’s recording artists—Kendrick Lamar and SZA—as well as the record label and the video’s director and production company, among others.