Second Circuit - Art Litigation: Claim Over Painting Time-Barred But Claim For Frame Timely

In Marchig v. Christie's, 11-461-cv (July 12, 2011)(summary order), a plaintiff consigned an artwork to Christie's in 1997 she thinks it was painted by Michelangelo's tutor.   Christie's tells her it is a nineteenth-century German work. Christie's advises her to change the frame, then sell it.   She ok's the sale, but says nothing about the frame. Christie's sells the painting in 1998 for $21,850.  In 2009 Christie's tells her it is probably a work by Leonardo da Vinci.   She sues in 2010, claiming the work is worth $150 million.

A short, informative and Solomonic opinion on the law of consignments, sales, and authentication claims.

Marchig v Christie's

Result:  claim against the painting is time-barred, but the Second Circuit reversed and remanded, holding that the claim for the return of the frame was timely.

 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Visual Arts and the Law Panel April 9 - Hofstra Law and NYSBA at the Cornell Club

Parthenon Selene Horse (source: Wikipedia)

ART LAW CANVAS(S):


AN EXAMINATION OF LEGAL ISSUES AFFECTING THE VISUAL ARTS COMMUNITY

FOR ARTISTS AND THE LAWYERS WHO HELP PROTECT THEM

When: Friday, April 9, 2010


Time: 12:00 p.m. – 5:00 p.m.

Location: CORNELL CLUB

6 East 44th Street,

New York, NY 10017

4 CLE Credits

Member CLE Cost: $175

Non- Member CLE: $200

Students/ Public: $25


12:00 p.m. Registration & Refreshments

12:30 p.m. Welcome & Introductory Remarks

EASL Young Lawyers Committee Co-Chairs - Stephanie Khalifa & Rachel DeLetto

President of Art Law & Culture Society - Monica Pham

Presented by:


THE ENTERTAINMENT ARTS & SPORTS LAW SECTION OF THE NEW YORK STATE BAR ASSOCIATION

and

ART LAW & CULTURE SOCIETY, PRESIDENT  MONICA PHAM
Portion of proceeds will be donated to

Haiti/Chile relief organizations.
12:40 p.m. The Art of Mediation- THE TRANSFORMATIVE APPROACH TO CONFLICT

Dealing with the Interaction not just the Transaction: Embedded within every transactional conflict, especially when creative properties are involved, is the history of the human interaction between the creative personalities involved. To address the transaction itself, without also addressing the interaction, may resolve the claims, but it will likely not resolve the residue of the poisoned interaction that gave rise to those claims. Transformative mediation offers a way to address both the transactional and interactional dimensions of conflict involving creative enterprises.

Prof. Robert Baruch Bush, Author of The Promise of Mediation, and Harry H. Rains Distinguished Professor of Arbitration and Alternative Dispute Settlement Law

1:10 p.m. Real or Fake? Warranties of Authenticity

A discussion of the relationship between the major international art auction houses Sotheby’s and Christies and small galleries. Art is an investment, but it is also part of our cultural heritage. What rights and obligations accompany the purchase and sale of art? The panel will discuss Thome v. Alexander & Louisa Calder Foundation, 890 N.Y.S. 2d 16 (2009) in which Judge Ramos held that the Calder Foundation had no duty to authenticate a work of art.

Moderator: The Honorable Charles Ramos, NYS Supreme Court, Commercial Division

Panelists: The Honorable Barbara Jaffe, NYS Supreme Court, Civil Division; Jay Safer, Esq., Partner, Locke, Lord & Bissell; John R, Cahill, Esq., Partner, Lynn & Cahill LLP; Jo Backer Laird, Esq., Of Counsel, Patterson Belknap Webb & Tyler LLP; Dennis Oppenheim, Artist.
2:00 p.m. Lunch Provided

Mesclun Salad of Field Greens with Housemade Vinaigrette, Traditional New York Style Cole Slaw, Black Forest Ham, Sliced Grilled Tarragon Chicken Breast, Smoked Pork Loin, Roast Beef, Mesquite Smoked Turkey Breast, Hummus and Pita Triangle Platter, Basket of Bread and Rolls

Grilled Vegetable Platter, Asian Chicken and Cashew Noodle Salad, Chicken Salad with Walnuts and Cranberries, Israeli Cous Cous Salad with Roasted Mushrooms, Horseradish Mayo, Red Pepper Basil Aioli Honey Dijon

Club-Baked Assorted Cookies, Basket of Whole Fruit to Include Apples, Oranges and Bananas

Coffee and Tea Service, Assorted Soft Drinks and Iced Tea
2:10 p.m. Copyright it: Protecting the fruits of your labor

A discussion of artistic authenticity and originality. What happens when an artist appropriates the work of another artist? This panel will address copyright issues that affect contemporary artists, including moral rights, resale rights, and the scope of fair use. When is an artistic expression protected by copyright and when does it infringe another’s copyright? Another angle of the "real" versus "fake" discussion is the idea of: "original" versus "copy" and whether an artist him/herself appropriated the work of another. Copyright Issues particularly pertinent to artists, moral rights and resale rights will be discussed. The following questions will be addressed: What is fair use? What is copying? How can an artist properly justify what he or she has originally created and what is “inspiration” from another source? How can artists protect themselves?

Moderator: The Honorable R. Bruce Cozzens (Civil Division)

Panelists: Raymond Dowd, Esq., Partner, Dunnington, Bartholow & Miller LLP; Sergio Munoz Sarmiento, Esq., Associate Director, Volunteer Lawyers for Arts; Jason Nardiello, Esq., Associate, Locke, Lord & Bissell; Amy J. Goldrich, Esq., The Offices of Amy Goldrich; Paul Ickovic, Artist
3:00 p.m. Sex, Art, and the First Amendment

A discussion of First Amendment rights and limitations on artistic expression. NEA v. Finley held that the statutory funding guidelines requiring the NEA to consider artistic excellence, merit, and general standards of “decency and respect” do not violate the First Amendment. Does it encourage discrimination in violation of the First Amendment's freedom of expression guarantees? How did it affect the Brooklyn Museum of Art and its legal battles with Mayor Rudolph Giuliani and the problem of conditions on government arts funding more generally?
Moderator: Prof. Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, Hofstra University School of Law

Panelists: Imo Imeh, Artist, and Ph.d Candidate at Yale University; Dean R. Nicyper, Esq., Partner, Fleming, Zulack, Williamson, Zauderer LLP; Marjorie Heins, director of the Free Expression Policy Project or author of Not in Front of the Children: “Indecency,” Censorship & the Innocence of Youth, Prof. Leon Friedman, Joseph Kushner Distinguished Professor of Civil Liberties Law.

4:00 p.m. Coffee Break
4:10 p.m. Keynote Address – Art Law Problems in Search of Solutions: from Adverse Possession to World Art law Systems
Professor Herbert "Bert" Lazerow- Professor of Law and Director of the Institute on International and Comparative Law, at the University of San Diego will examine all issues discussed by all the panels.
5:00 p.m. Closing Remarks by Prof. Leon Friedman, Hofstra University School of Law
A Portion of the Proceeds will go to the following Organization:

IN THE HEART OF PORT-AU-PRINCE: GHESKIO RELIEF IN HAITI

GHESKIO establishes refugee camp and field hospital for thousands of earthquake survivors and continues AIDS care

For More Information please go to:

http://weill.cornell.edu/globalhealth/

General Public, Artists & Law students are encouraged to attend!!

Authentication, Artist Foundations and Catalogue Raisonnes

In Thome v. The Alexander & Louisa Calder Foundation, 890 N.Y.S.2d 16 (First Dept. 2009), the Appellate Division, First Department upheld a decision of Justice Charles E. Ramos dismissing a claim against the Calder Foundation.  

The plaintiff owned a work it believed was created by the late Alexander Calder.  Calder was an American sculptor and artist most famous for inventing the mobile.   The plaintiff sued because the Calder Foundation refused to include the work in the artist's catalogue raisonne.  A catalogue raisonne is a publication that purports to include an artist's entire oeuvre (body of work).

The Calder case came up after another case, Simon-Whelan v. The Andy Warhol Foundation for the Visual Arts, 2009 WL 1457177 (S.D.N.Y.) survived dismissal with allegations that the Warhol Foundation attempted to tamper with the market for Warhol works in violation of federal and state antitrust laws, to wit:

- The Board made unsolicited suggestions to Warhol owners that they apply for authentication;
- Foundation policies of authentication inconsistently applied;
- Board reversed prior determinations authenticating works;
- Board refused to authenticate works the Foundation previously tried to purchase;
- unlike other boards, Warhol Board not made up of independent and experienced scholars

(these are allegations only, at the pleading stage).  A visit to the Warhol Foundation website shows that they license Warhol's brand, the Bond No. 9 perfume pictured above is an example.

In Calder, however, the court dismissed the actions for declaratory judgment and product disparagement.  The court found that it did not have the power to declare the purported Calder work authentic nor to order the Calder Foundation to include it in the catalogue raisonne.  The court distinguished the law of France, where a French court has the power to appoint a neutral expert and to make determinations of authenticity.  According to the Calder court, a court may not act as a connoisseur, except to make rulings on authenticity that are related to actual cases or controversies before it.   In essence, the court found that its function is not to tell scholars what is real and what is not.

The court also found that the Calder Foundation had no duty to the plaintiff to authenticate the work and that the individual officers of the charity who were sued enjoyed immunity from suit.   The fact that the Calder Foundation might own Calder works and thus might enhance their value by restricting the market was not enough to survive dismissal.

Foundations vary greatly in practices, market power, and credibility.  There is no disputing that for certain artists, the foundations act in dictatorial and inappropriate ways, leveraging the artist's power far beyond what copyright law contemplates.

So if you own an artwork that you think is a Calder, how would you proceed?  From the Calder Foundation's website, you would fill out the following application:

Examinations



Owners of works attributed to Alexander Calder may apply to the Calder Foundation for the examination of the work. The Calder Foundation does not charge a fee for examinations.


For the Foundation to consider the examination of a work, the owner must have previously submitted an Application for Registration and a 4” x 5” Ektachrome as well as a written request for an examination.


For works which the Foundation has agreed to examine, the owner will be provided with an Examination Agreement. The Examination Agreement must be executed and returned to the Foundation prior to the examination.


The Foundation does not provide certificates of authenticity and does not assist with appraisals or valuations.


To request an examination, please contact the Foundation directly.

Click here to download the Application for Registration in Adobe.pdf format.