The once-renowned Salander-O’Reilly Galleries imploded around 2007 after a number of customers and business partners sued owner and art dealer Lawrence B. Salander for allegedly defrauding them.  By the end of 2007, Salander had filed for bankruptcy; by 2010, he was serving a prison term for grand larceny.  The legal fallout from his story, however, continues today—as illustrated by a recent court decision. This case reminds those who buy and sell art that diligence is paramount—no matter how trusted the seller, and no matter how savvy the buyer.

James Meyer worked as an assistant to famed contemporary artist Jasper Johns for a quarter of a century.  Meyer, himself an artist, observed Johns at work, learned about his techniques, and witnessed the trajectory of a remarkable artistic career as Johns became one of the most well-known and sought-after artists of our time.  Johns, now 83, was awarded the Medal of Honor by President Obama in 2011, and his works have commanded stratospheric prices (one work, Flag, sold at Christie’s in 2010 for $28.6 million).

In April we discussed the Second Circuit Court of Appeals’ much-anticipated decision in Cariou v. Prince, which explored the “fair use” defense in copyright-infringement cases.  The Cariou decision was of great interest to the art community because of its implications for “appropriation” art, which incorporates or builds off of the copyrighted works of others.  This month, the Ninth Circuit Court of Appeals issued another important opinion involving the application of the fair use defense in the context of appropriation art.  The case involved the rock band Green Day’s unauthorized use of an image by artist Dereck Seltzer in the band’s video backdrop for its live concerts.  In an opinion authored by Judge Diarmuid O’Scannlain, a three-judge panel upheld a summary judgment in favor of Green Day.

In July 2010, the New Yorker published an article about Peter Paul Biro, an art expert who has made a name for himself by using forensic techniques to authenticate artworks.  Mr. Biro, displeased with the magazine’s portrayal of him and his methods, brought claims for libel (i.e., defamation through written statements) against the writer, David Grann, and the magazine’s parent company, Condé Nast.

Litigation continues over the Google Books Library Project, an effort by tech giant Google to collect and provide search capability across millions of books.  The case of Authors Guild v. Google, 2013 U.S. App. LEXIS 13389 (2d Cir. July 1, 2013), first filed in 2005, is a putative class action involving copyright-infringement claims by authors challenging Google’s process of scanning, digitizing, indexing, and making publicly available short “snippets” of their books (and millions of other copyrighted books from major libraries).  The Second Circuit’s recent decision vacating class certification and directing the trial court to consider the fair-use defense in connection with plaintiffs’ class-certification motion is emblematic of the continuing challenges of applying traditional copyright law to new issues posed by digital technology, especially in the class context.

A recent appellate decision upheld Sotheby’s right to withdraw a work from auction based on contemporary artist Cady Noland’s disclaimer of authorship of a work under the Visual Artists Rights Act of 1990 (17 U.S.C. § 106A) (“VARA”). While the court resolved questions of Sotheby’s rights to withdraw the work under its standard-form consignment agreement, the court did not have the occasion to examine the contours of the artist’s disclaimer rights under VARA. In the meantime, though, VARA continues to be an effective weapon to be used by artists to protect their moral rights.

In 1933, Jewish industrialist Richard Semmel sold four paintings at auction under duress as a result of Nazi persecution.  Now, the Dutch Restitutions Committee, which can give binding opinions in matters of disputed art, has rejected claims by Semmel’s heirs for three of the four paintings.

On April 25, the United States Court of Appeals for the Second Circuit issued an important decision about the “fair use” defense in copyright infringement cases.  The court’s ruling will have implications for artists and galleries, especially those who create or deal in artwork that incorporates or builds off the work of others.

The D.C. Circuit ruled recently that the heirs of a legendary Hungarian art collector could proceed with their claims against Hungary to recover eleven works seized by the Nazis notwithstanding a Hungarian court ruling to the contrary.  See De Csepel v. Republic of Hung., 2013 U.S. App. LEXIS 7837 (D.C. Cir. April 19, 2013).  This decision highlights the many legal issues—and obstacles—involved in cases seeking the return of art stolen during World War II.

The Southern District of New York recently dismissed a lawsuit by plaintiff Jonathan Sobel concerning his collection of eight photographs by William Eggleston.  Sobel v. Eggleston et al., 12-CV-02551 (S.D.N.Y.).  The case raises a cautionary flag for art collectors who are interested in purchasing photographs and other works that can be produced in “multiples.”