Invitation: February 11 Lecture at Cincinnati Museum Center on Recovery of Nazi Looted Art

Cincinnati Museum Center at Union Terminal

invites you to an evening with

Raymond J. Dowd, Esquire
Partner, Dunnington, Bartholow & Miller LLP
Thursday, February 11, 2010
6 p.m.

Heavy appetizers and cash bar

7:30 p.m.

Insights Lecture Series

Murder, Mystery, and The Dead City

Mr. Dowd will speak about the battles to recover art stolen from Jewish Holocaust victims, the undisclosed role of the Swiss in laundering looted art for the Nazis, and the implications for U.S. museums holding artworks of European origin.

$25 per person for reception includes parking.

Lecture open to the public. Parking $4.

Reception reservations requested to Sarah McManus

by Monday, February 8, 2010

(513) 287-7074 or smcmanus@cincymuseum.org
In partnership with

Co-sponsored by Northern Kentucky University Chase College of Law and

the Cincinnati-Northern Kentucky Chapter of the Federal Bar Association.

Looted Art in Spain via Germany: Thyssen-Bornemisza Can Be Sued In Federal Court

In Cassirer v. Kingdom of Spain, found here the Ninth Circuit dealt with a case of first impression. Where Germany stole an artwork, and Spain bought the stolen artwork, does the Foreign Sovereign Immunity Act (FSIA) make Spain immune from suit in a US federal court? The case arose from a Nazi taking a Pissarro from Claude Cassirer's mother in Nazi Germany in 1939.

The legal question presented was whether the expropriation exception to sovereign immunity in Section 1605(a)(3) of the FSIA applied to a sovereign entity that was not alleged to have taken property in violation of international law.

Spain bought a collection from a Swiss-based Baron Thyssen-Bornemisza and started a museum based on the collection.

This is similar to the arrangement Austria has with the Leopold Museum. The Leopold's collection is now being researched at the insistence of the Jewish Community of Vienna, which held protests and roped off the entire Leopold Museum in yellow "crime scene" tape.

When you buy from the Swiss the type of art that Nazis liked to loot, you really ought to check the provenance. Shame on Spain. Let's hope they set up a commission to publicly investigate the collection and give back the things that have been stolen from murdered Jews.

Richard Prince - Practicing Without a License

In 2005, a Richard Prince photograph of a Marlboro cigarettes advertisement was auctioned for over $1.2 million - a world record. He photographed the Marlboro ad without permission removing the identifying marks. In a 1977 essay, Prince proclaimed that he was "practicing without a license" - referring to his practice of stealing other people's pictures and publishing them as his own.

Prince is having a one-man show at the Guggenheim museum, titled "Spiritual America". The title of the show comes from disturbing nude photograph of a prepubescent Brooke Shields taken by photographer Gary Gross that Prince "rephotographed" and presented in a gilt frame in a gallery on the Lower East Side. The photograph is part of the Guggenheim show and reprinted in its catalog.

Prince likened his taking of others' photographs to sampling someone else's 8-track tape, he could manipulate his "8 -track photographs" in the following way:

1. the original copy
2. the rephotographed copy
3. the angled copy
4. the cropped copy
5. the focused copy
6. the out-of-focus copy
7. the black-and-white copy
8. the color copy

Prince's show is interesting, disturbing, and challenging. In Nancy Spector's catalog essay, she likens Prince's acts to the act of Marcel Duchamps submitting a urinal as part of an art show (Duchamps called this "readymade") - and this act is widely considered with opening up and introducing the art of the 20th century. Is Prince a Warholian or Duchampian genius - or a fraud? If auction prices, income, and museum shows are a measure - Prince is a genius of the highest order. He certainly has his critics, though.

As we move into a world where digital photography and sophisticated consumer-level photo retouching software is available, appropriating and manipulating images has become a widespread phenomenon. His appropriation may foreshadow the copyright battles of the future, and a weakening of the visual artist's copyright.

But as you go up the Guggenheim spiral, you will note less wholesale appropropriation, and more borrowing of bits and pieces. Once an artist is successful and no longer judgment proof . . . remaining an outlaw becomes problematic. His latest series consists of scanning faces from the works of De Kooning and sticking pornographic cut-outs onto the bodies.

Maybe we will all see "moral rights" in a different light after this show. See it and judge for yourself.

German Copyright in US Courts

Wrapped Reichstag, Berlin 1971-1995 (Christo & Jeanne-Claude)

I am leaving shortly to go to Germany. I will give a joint lecture at the University of Konstanz's law school with Prof. Dr. Axel Nordemann of Boehmert & Boehmert on July 6. On July 9, I will be giving a lecture in Berlin to the Berlin Chapter of the German Intellectual Property Law Association.(DEUTSCHE VEREINIGUNG FÜR GEWERBLICHEN RECHTSSCHUTZ UND URHEBERRECHT).

In preparation, I have been thinking about what copyrights would be of interest to German students and attorneys. Judge Alex Kozinsky noted in Mattel Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002) that Mattel's Barbie Doll was originally a "German street walker". In that case, the court found that trademark infringement and dilution claims asserted against the Danish band Acqua and their song "Barbie Girl" failed because a trademark owner doesn't have the right to control public discourse when the public imbues a mark beyond its source-identifying function. Barbie has spawned enormous litigation. For example, artist Tom Forsythe was awarded $1.8 milllion in attorneys fees and damages because of Mattel's meritless litigation against him for his "Food Chain Barbie" series of photographs. Mattel Inc. v. Walking Mountain Productions, 353 F.3d 792 (9th Cir. 2003).

One of my favorite German copyright disputes didn't involve a German copyright. The Copyright Office's Board of Appeals rejected Christo and Jean-Claude's application to register their wrapping of the Reichstag in Berlin as a "sculptural work". Re: Wrapped Reichstag, Berlin, 1971-1995 Control No. 60-504-9973 Decision of Appeals Board, U.S. Copyright Office, October 1, 1997. The image appears above. Christo and Jean-Claude own the copyright in the photograph shown above, but they do not have a copyright in the sculptural aspects of the wrapped Reichstag. A copy of this decision may be found at Franklin Pierce Law School's IP Mall.

Dr. Nordemann and I will discuss two cases in depth. One, Twin Books Corporation v. The Walt Disney Corporation, 83 F.3d 1162 (9th Cir. 1996), involves the initial publication in Germany in 1923 of the classic children's tale "Bambi, A Life in the Woods" without a US copyright notice.

The second, Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) involved a fashion photographer named Andrea Blanch visiting the Deutsche Guggenheim in Berlin and noticing that a photograph she'd taken had been painted into the latest work of the artist Jeff Koons (Koons and Barbie are jointly responsible for a good chunk of U.S. copyright law). Ms. Blanch returned from Berlin and sued Jeff Koons in New York, rather than in Berlin. Dr. Nordemann and I will discuss whether Germany might not have been a friendlier forum for her, and why.

A Westlaw search of "German copyright law" turned up only five cases in the ALLFEDS database. "German copyright" turned up only ten. "germany w/5 copyright" yielded 18 results, including the famous Wheaton v. Peters, 33 U.S. 591 (1834)("In Germany, where a free, perpetual copyright exists, books are cheaper than any where else in the world.")

But I think that we are going to see many more German copyrights exploited in the United States. I recently had the pleasure of watching Fritz Lang's "M" (1931) - a Criterion collection release. An amazing film.

And two years ago, I started representing the heirs of Fritz Grunbaum. Grunbaum was a Jewish cabaret performer and film star in Berlin who mocked Hitler mercilessly. He was one of the founders and stars of Vienna's Kabarett Simpl. Christopher Isherwood's "Berlin Stories" are said to be based on Fritz Grunbaum and his world, which in turn formed the basis for Kander & Ebb's "Cabaret". Grunbaum and many member of his family were murdered by the Nazis. His art collection, like the collections of so many victims of the Holocaust, ended up with a Nazi-owned Austrian transport and storage company called Schenker & Co AG that has never accounted for it. What happened to the artworks after they left Schenker and made their way to the walls of the world's museums is now a hotly disputed matter. According to Eberhard Kornfeld, owner of Galerie Kornfeld in Bern, Switzerland, the Egon Schiele self-portrait hanging in the Morgan Library belonged to Fritz Grunbaum. The Morgan Library's catalog From Berlin to Broadway: The Ebb Bequest of Modern German and Austrian Drawings claims that Kornfeld acquired it from Egon Schiele's estate.

Two years ago, when I googled Fritz Grunbaum I found very little on him. I did it again recently and found blog posts, a museum in Vienna devoted to him, a very respectable Wikipedia entry, and an IMDB filmography of his works. Checking out his film "The Theft of the Mona Lisa" (Der Raub der Mona Lisa) (1931), I discovered that he played the role "Adolph G" to make fun of Hitler and that the New York Times gave the film an amazing review in 1932, which I got to read.

Although Grunbaum's artworks vanished, his copyrighted celluloid image survived, his musical copyrights endured, and the German collecting societies steadily credited his estate with royalties over the years for his famous musical compositions.

Hollywood is hungry for remakes, and the appetite is only growing. Someone is going to want to remake the "Theft of the Mona Lisa" which was based on an actual incident in 1911.

As German films of the twentieth century become better known, catalogued, distributed and affordable, the market for and interest in German copyrights in the United States should grow.