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Cardozo Art Law Society

Speaker Series Follow-Up: Genealogy and Provenance in Art Restitution

By: Céalagh Fitzpatrick

For those that attended the Cardozo Art Law Society’s speaker series event on September 17th entitled Genealogy and Provenance in Art Restitution, the intersections between law, genealogy, and provenance are quite apparent. One of the topics of discussion was the challenge of tracing a family’s history for legal purposes. This is very interesting in light of a recent New York Times article entitled The Heir’s Not Apparent, discussing the heir(s) to Vivian Maier’s works.

Maier was a very well known photographer of street life throughout the 1900s, whose films were discovered upon her death. Her pictures are truly amazing and there is a book and a documentary about her talents. Yet, she died with no obvious family and finding an heir was, and still is, a challenge for attorneys and genealogists.

The NY Times article reports that an attorney from Virginia hired a genealogist to find an heir of Maier despite another man in Chicago, that owns many of Maier’s pictures, already doing this. The article is quite interesting but fails to go delve into why this attorney is going to such lengths to find Maier’s true heir.

What’s interesting about Dr. Rose Cohen’s presentation at Cardozo Law, in light of Vivian Maier’s genealogical issue, is how challenging finding both of these long lost heirs must be for the respective genealogists.  Dr. Cohen tells us that the border shifting before, during, and after WWII play an essential role in tracing people’s history. Tracking down genealogical records can prove quite difficult as people during that time-period traveled all over Europe.  For instance, Maier’s family was from France, which would make it quite a challenge to trace her family’s lineage as people moved all over the country as it was decimated by war during this time.

Once a genealogist finds the correct country (or countries) to study, there is a plethora of databases and archives to search. Dr. Cohen told those in attendance that, ‘record keeping is not an exact science’ and therefor making sense of the systems in these different archives is quite a challenge.

 “Now a court case in Chicago seeking to name a previously unknown heir is threatening to tie [Vivian Maier’s] legacy in knots and could prevent her work from being seen again for years.”

http://www.nytimes.com/2014/09/06/arts/design/a-legal-battle-over-vivian-maiers-work.html?_r=1

NY State Legislature Bill proposes to help protect art authentication experts from "frivolous" lawsuits

When people hear that their valuable artwork is a fake, they don’t like it. The response has often been to shoot the messenger — expressing doubt as to the authenticity of a work of art has landed art experts with lawsuits. Even when the lawsuits fail, as they often do, the experts have still had to deal with prohibitive litigation expense. Consequently, there has been a silencing effect on authentication boards and independent experts. Furthermore, the silencing of experts could allow fakes and forgeries to proliferate as the in an extremely high-priced market. A bill was introduced in the New York state legislature last month which aims to help prevent frivolous lawsuits against authenticators expressing their learned and best faith opinion by raising the pleading standard and allowing for costs of defense litigation expenses when the standard is not met. 

Does Today’s ‘Fair Use’ Destroy Artist Rights?

By Diana Yu

On the heels of the recent Cariou v. Prince decision in 2013, another copyright infringement case has arisen: Greenfield v. Pankey.

Plaintiff Lois Greenfield is a dance photographer and defendant Jill Pankey is a painter, who has allegedly based her paintings off of 33 of Greenfield’s photos. The similarities are, in fact, uncanny… (Left: Pankey, Right: Greenfield)

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Source: Center for Art Law  

Pankey is not a New Yorker, as she is originally from Texas. However, as a result of her activities in promotion and exhibition of her works in Manhattan, she is indeed subject to the jurisdiction of New York Federal Courts (I know, I know… Civ Pro much?) 

In Cariou, the United States Court of Appeals for the Second Circuit reasoned that as long as Mr. Prince’s work transformed the images into original art, he was not violating anyone’s copyright (Source: The New York Times). With this precedent defining the fair use standard so broadly, requiring only a reasonable viewer find the new work “transformative”, it appears that photographers will face a struggle to protect their works against potential future infringements.

Although a coalition of more than half a dozen groups, including the National Press Photographers Association, Professional Photographers of America and the Picture Archive Council of America, joined together to submit a friend of the court brief to support the photographer Patrick Cariou (after part of his case against Mr. Prince was sent back to a judge for reconsideration), the rights of artists against copyright infringement lies in limbo. Click here for the brief.

Legislation could provide a solution, but I wouldn’t hold your breath. In the NY Times article, according to Mickey H. Osterreicher, general counsel for the National Press Photographers, the last time copyright law was passed was in 1976…

 

Should artists who want to use someone else’s creation in their works be required to pay a fee? Should they not be allowed to use it at all? Or should they be able to use them freely? What are your thoughts? 

5Pointz: Graffiti Mecca No More

Before dawn this morning, Tuesday November 19, the graffiti mecca that was 5Pointz in Queens, New York, was reverted back to nothing but white paint. Overnight, the owner of the building upon which thousands of artists painted over the years was completely erased. This is a major tragedy for graffiti artists and admirers alike.

Source: The NY Times

Source: The NY Times

See The New York Times  ”5Pointz, a Graffiti Mecca in Queens, Is Wiped Clean Overnight” for details.

James Franco Talks Richard Prince

(Just for Fun)

In other news: James Franco, renaissance man, art critic and journalist? For a discussion of Richard Prince’s from the critical (not copyright) perspective, see this intriguing article.

P.S. - Any thoughts on the appropriation of Franco’s face into a Marlboro Man-esque painterly portrait?

Reasonable Minds Disagree about Fair Use after Cariou v. Prince

By Kristen Niven

On November 13th, Cardozo Art Law Society, with the Intellectual Property Law Society’s Copyright Committee, hosted a lively panel discussion of the recent Second Circuit Court of Appeals decision in Cariou v. PrinceThis timely discussion took place the day after the Supreme Court denied cert, leaving the Second Circuit’s decision the standing law on appropriation and fair use in art.

Richard Prince is a well-known artist whose works are displayed in museums around the world and have sold at auction for millions. Considered by many to be the father of Appropriation Art, he has been mining mass culture from advertising and pop culture since the 1970s.

Prince’s appropriation artworks have often been understood to be commentaries on popular culture, re-purposing the imagery from the advertising and revealing the mythology of mass media. For his Canal Zone series, exhibited in 2008 at the Gagosian Gallery, Prince appropriated photographs by Patrick Cariou from his book, Yes, Rasta, a series of portraits and landscapes taken over six years he spent in Jamaica living among Rastafarians.[1] Cariou sued Prince and the Gagosian alleging infringement of his copyrights in the Yes Rasta photos.

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[Left: a photo from Yes, Rasta, by Patrick Cariou. Right: Graduation by Richard Prince, from Canal Zone]

The district court granted summary judgment in favor of Cariou. Rejecting the asserted defense of fair use, it held that the use was not transformative, since, among other considerations, the purpose and character of Prince’s work was not to “comment on, relate to the historical context of, or critically refer back” to Cariou’s works themselves.[2]

The Second Circuit Court of Appeals overturned summary judgment and found 25 of the works in Canal Zone to be covered by fair use. The Second Circuit rejected the district court’s test for transformativeness, the “heart of the fair use inquiry”.[3] It held that in order to be transformative, a work must alter the original with a “new expression, meaning or message”[4], not necessarily about the original work. Furthermore, this is determined by an objective standard of how the works appear to the reasonable observer rather than by the artist’s stated intent.[5] It was this new test for transformativeness in the Second Circuit that sparked a thoughtful debate.

Was this decision good for artists? Was it good for our intellectual property system as a whole? As it turns out, reasonable minds can disagree about the result of this case. The nexus of the debate came down to equally persuasive understandings of the very purpose and heart of American copyright law.

Alan Behr, a renowned IP attorney at Philips Nizer LLP, photographer and art critic, noted the enormous liberties this vague test allowed artists to take in appropriating the intellectual property of photographers without license. Mr. Behr emphasized the property rights inherent to the constitutionally-endorsed copyright law, which were admittedly diminished or made vague for those working from the photography perspective. After Cariou, he argued, virtually any use of a copyrighted work that makes an original expression is carved out of the already limited scope of rights to the work over which a photographer has exclusive control.

John Koegel of the Koegel Group LLP, former General Counsel at MoMa, who has represented Jeff Koons in litigation, celebrated this broadened definition of fair use for artists. His view strongly emphasized the purpose of the copyright law to promote a range of creative expression, making the path for artists to create clear of excessive legal obstruction and red tape. This decision, according to Mr. Koegel, puts forth a standard more appropriate to and reflective of the contemporary art world.          

But what does the new transformativeness standard mean for appropriation artists working today? Michael Rips, special counsel at Steptoe and Johnson LLP, who has advised arts institutions including the Whitney Museum and Dia Foundation and represented artists including James Rosenquist  and the Dan Flavin estate, generally favored the Second Circuit’s decision not to limit fair use to commentary on the original work. However, he takes issue with the “reasonable observer” standard of objectivity, noting that, in addition to having no clear precedent, the decision leaves a vague and fickle standard that may not accurately reflect the nature and purpose of the appropriating work.

On advising artists in light of this decision, the panel agreed that the law as it stands is certainly more favorable to appropriation artists. However, it leaves attorneys with a diffuse and confusing set of standards to determine whether an artist may be trespassing on the exclusive rights of a copyright holder, or whether the use is sufficiently transformative, from a legal rather than an art-critical perspective, to constitute fair use.                      

[1] Cariou v. Prince, 714 F.3d 694, 699.

[2] Cariou v. Prince, 784 F.Supp.2d 337, 348-349.

[3] 714 F.3d at 705 (citing Blanch v. Koons, 467 F.3d 244, 251).

[4] Id. at 706.

[5] Id. at 707.

Big News in Art and Law

By Daniel Day

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(2013 Estate of Francis Bacon/Artists Rights Society (ARS), New York/DACS, London)

Big numbers out of Christie’s evening Post War and Contemporary Art sale as Francis Bacon’s Lucian Freud triptych sells for $142.4 Million, the most expensive work of art sold at auction ever. On top of that, the evening sale totaled $691.5 million, the most expensive auction total ever. (Source: The New York Times)

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The Supreme Court denies Cert Petition in Cariou v. Prince.

The US Supreme Court, in an order issued today, has decided not to hear the controversial copyright case between the photographer Patrick Cariou and the artist Richard Prince, who appropriated Cariou’s images of Rastafarians in 30 paintings in the series ‘Canal Zone’.”  (Source: The Art Newspaper)

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The graffiti-caked factory off of Jackson Ave. is an attraction for fans of street art.

(Justin Lane/EPA)

5Pointz Graffiti Artists lose their legal battle and the Long Island City graffiti mecca will be demolished to make way for residential development. (Source: New York Daily News)

They Can Counterfeit Just About Anything in China

By Diana Yu

China is world-renowned for its incredible ability to seamlessly forge anything, and this is now gravely hurting its art market. The country has potential to become a major player in the international art marketplace, but has faced transactional problems in the past years due to forgeries, briberies, and corruption. However, China’s market continues to boom, driven by “the pent up consumerism of the newly rich”. Moreover, Chinese painters now dominate lists of the best selling artists in the world. For more, see “Forging An Art Market in China”.

Stop, in the Name of Art!

By Diana Yu

The Dia Foundation was formed in 1974 by Heiner Friedrich, Philippa de Menil, and Helen Winkler. The Foundation’s stated purpose: “to provide artists with long-term support to realize the transformative potential of their ideas and commits to this support even when the artists’ ideas seem too ambitious or impractical to be realized within the traditional museum context.”

Now, according to The New York Times, founders Heiner Freidrich and his ex-wife Fariha de Menil Friedrich reunite to take a stand against the foundation’s intended auctioning of $20 million worth of works through Sotheby’s next week.

(Source: The New York Times)

The two founders have since filed in Manhattan state court for temporary and preliminary injunctive relief. To view summons and complaint, go to: https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=rf6z7BUxWPyOWxyia0TSuQ

According to court documents, the founders are extremely unhappy that works they donated to the Foundation will be blatantly removed “from public access and viewing in direct contravention of Dia’s entire intent and purpose” when the purpose for the donations was just that: permanent collections for the public.

They maintain that there must be better ways to raise funds for their artists, ways that do not necessitate selling out their most prized possessions.

Unfortunately, the documents that state this original purpose cannot be located. The Freidrichs may resort to relying on the theory that some of the works were “long-term” loans to the Foundation.

Sources: The New York Times, Dia Art Foundation, Supreme Court of the State of New York County of New York.

Recognition or Demolition for “Graffiti Mecca” of New York

By Anthony Mastroianni  

A temporary stay on the demolition of Long Island City’s 5Pointz Aerosol Arts Center comes to an end this week with visual artists entering litigation in Queens County Civil Court to save the exhibition space. 

Since 2002, 5Pointz has continuously operated a curated art-space for graffiti and street artists in a 200,000 sq. ft. former factory building on 5 lots of Jackson Ave. real estate with the blessing of property owners G&M Realty.  However earlier this year G&M owners, David and Gerald Wolkoff controversially announced a plan to evict 5Pointz and demolish the warehouse facility for condominium development.  

Over the past decade, 5Pointz has established itself as the “graffiti-mecca” for visual artists from across the globe. The exhibition facility features over 350 original works of stunning graffiti and street art on its interior and exterior walls; believed to be of the most expansive collections of aerosol and street art in the United States and the world. 

Permission to paint on the facility is highly competitive and only granted to the most promising artists within the field.  The site receives hundreds of on-site visitors each week, operates tours for students, and remains one of the most visible cultural landmarks in Queens. 

 Attorneys Jeannine Chanes and Roland Acevedo entered a complaint in Queens County Civil Court on behalf of artists with work displayed on 5Pointz to halt demolition of the space.  Their complaint invoked the Visual Artists Rights Act, 17 U.S.C. §106A(d)(3), which protects recognized artwork whose destruction would result in prejudicial harm to the artist and the artist’s exclusive rights to the artwork.  Protection under the act remains in place for the duration of an artist’s life; during which the artwork in question may not be altered, modified, or mutilated. 

Additionally the complaint puts forward allegations of interference with prospective contractual relations so far as the lost privileges for artists to exploit their artwork, and questions G&M’s violation of the easement agreement granted in 2002 to 5Pointz curator, Jonathan Cohen, granting exclusive right to Cohen as overseer of the exhibition space and set the groundwork for the 5Pointz of today.

 The litigation to save 5Pointz goes to show the evolving public interest in street art mediums that in just under a decade have quickly gone from hooligan to highbrow. Invocation of the Visual Artists Rights Act reinforces the recognition of graffiti and street art as worthy of both physical and legal protection, and exercises relatively new avenues for artists to protect their rights.