Art Law: Boston Museum of Fine Arts: Sues Heirs of Jews To Keep Stolen Property, Hides Evidence



Two Nudes (Lovers)

1913

Kokoschka, Oskar, Austrian, 1886–1980

163.2 x 97.5 cm (64 1/4 x 38 3/8 in.)

Boston Museum of Fine Arts

Apparently there is some confusion about the Boston Museum of Fine Arts Victoria Reed's role in laundering Nazi-looted art by getting a federal court to shield the MFA from discovery into its provenance research. 
 
Let's make it clear:  just because a federal judge says heirs have no legal rights to obtain the return of property because the claims are time-barred, doesn't mean property wasn't stolen.   To unpack that double-negative, if a judge says heirs can't find out and prove that a painting was stolen because their claims are time-barred, the museum is granted a windfall: a potentially-stolen artwork that no one can reclaim.
 
By pulling this scam, the MFA violates the Washington Conference Principles on Nazi Confiscated Art
 
So the MFA bringing a "declaration of title" action is completely stupid, immoral and unethical because it just means that the MFA has potentially stolen art in its collection that heirs cannot retrieve.   Not to mention, an enormous expenditure of resources on legal fees.
 
The end result is that the children of Boston can gawk at a work stolen from a Jew and never know the truth.  And the MFA wants to keep it that way.  Nice Brahmin values.
 
From the First Circuit's opinion:
 
Because she did not make a demand on the MFA until March 12, 2007, more than three years after her causes of action accrued, summary judgment was properly granted on the MFA's limitations defense.


So the Museum of Fine Arts avoided discovery and inquiry into whether the object was stolen by invoking a statute of limitations defense.   But the statute of limitations merely affects the REMEDY.  It does not give the MFA title, since under the common law, no one can ever take good title from a thief.
So the First Circuit's decision simply means that the MFA can thumb its nose at Holocaust victims and try to rewrite the history of Vienna in February 1939 to pretend that the Kokoschka was not stolen from Reichel.

This is a use of the law in the service of an evil purpose, it is unethical, immoral and it violates the charitable charter of the MFA, an entity that is subsidized by taxpayer largesse.

To clarify: here's an excerpt from the First Circuit opinion, decide for yourself whether the MFA has laundered this piece of stolen art, keeping in mind that Adolph Eichmann had the property of Vienna's Jews in his grasp in February 1939.
 
Note that the First Circuit, by inserting the entirely irrelevant fact that Otto Kallir, the alleged "purchaser" from Reichel was Jewish, tries to make the transaction innocuous.  However, many historians have documented the fact that the Nazis used a network of Jewish art dealers to launder the proceeds of stolen art:
 
 

Egon Schiele:  Portrait of Dr. Oskar Reichel



Conditions for Dr. Reichel and other Austrian Jews rapidly deteriorated following the Anschluss -- the annexation of Austria by the Third Reich in March 1938. Pursuant to Nazi regulations, Dr. Reichel was forced to file a declaration in June 1938 listing all of the valuable property he owned. One expert witness described the declaration as a "prelude to the formal Nazi confiscation and seizure of all Jewish-owned property in Austria and Germany." Proceeds from the sale of declared property had to be deposited into a Nazi-controlled account and could be withdrawn only in limited amounts. In his 1938 property declaration, Dr. Reichel stated that he owned the Painting and four other Kokoschka works. He declared the combined value of the Painting and another work to be 250 Reichsmark.

Egon Schiele- Portrait of Dr. Oskar Reichel - Head

Around the same time, Kallir, who was also Jewish, transferred ownership of his gallery to his non-Jewish secretary and moved to Paris. While Kallir was in Paris, Dr. Reichel agreed to transfer his remaining five Kokoschka works, including the Painting, to Kallir. The details of this transaction are sketchy. It is not clear whether Dr. Reichel received any consideration for the works at the time. Two contemporaneous notes indicate that Kallir agreed to purchase the five paintings for a total of 800 Swiss francs. However, Dr. Reichel's son Raimund later said that his father arranged for Kallir to send the proceeds of the transaction to another son, Hans, who had already immigrated to the United States. According to Raimund, Kallir sent Hans $250 for the five paintings in 1940 or 1941, and Hans forwarded half that sum to Raimund. The five Kokoschkas, including the Painting, were transferred from Dr. Reichel to a shipping company in Vienna, then exported to Paris.
Dr. Reichel and his wife Malvine suffered at the hands of the Nazis. They were forced to close the business Dr. Reichel had founded and to give up their family home and another property. Their eldest son was deported to Lodz, Poland, where he was killed. Malvine was sent to the Theresienstadt concentration camp in 1943, and Dr. Reichel died of natural causes that same year. The two younger sons had emigrated by that time -- Hans to the United States and Raimund to Argentina. Malvine survived the war and eventually joined Hans in the United States.

Meanwhile, Kallir had settled in New York, where he opened the Galerie St. Etienne. He brought the Painting with him and sold it to the Nierendorf Gallery for $1,500 in 1945. The Nierendorf Gallery then sold the Painting to the E.A. Silberman Galleries, which in turn sold the Painting to Sarah Reed Blodgett in 1947 or 1948. Blodgett kept the painting for many years, lending it out for exhibitions from time to time. She eventually bequeathed the Painting to the MFA, which acquired possession in 1973.*fn4 The Painting has been on almost continuous display at the MFA since then, though it has been loaned out many times for exhibitions in the United States and around the world.
Raimund moved back to Vienna in 1982. He executed a will in 1989, in which he designated Seger-Thomschitz as his sole heir. It is not clear how Raimund and Seger-Thomschitz knew each other. She is described in one document as his "select-niece," but they are not blood relatives. When Raimund died in 1997, Seger-Thomschitz became the sole surviving heir of Dr. Reichel.*fn5
Seger-Thomschitz says that she "first learned that the Nazis confiscated artworks from Oskar Reichel in the Fall of 2003 when the Museums of Vienna contacted her concerning their intent to return to her as the sole heir of Oskar Reichel four artworks in their collection by the artist Anton Romako . . . ." The restitution of the Romako works was pursuant to a municipal resolution that Vienna had passed in 1999, which in turn implemented a 1998 national art restitution law. One municipal document notes that "it seemed quite proper" to return the works to Seger-Thomschitz because Dr. Reichel "had to sell [them] due to his persecution as a Jew." Notably, Dr. Reichel appears to have sold the Romako works around the same time that he sold the Painting, and under similar circumstances. He sold three of the four Romakos to the Neue Gallery in 1939 "for only small equivalent amounts," and he sold the fourth to the Neue Gallery in 1942. The gallery, by then under the direction of Otto Kallir's former secretary, subsequently sold the Romakos to the city.
Following her correspondence with the Museums of Vienna, Seger-Thomschitz retained a Viennese attorney, Erich Unterer -- who had also been Raimund Reichel's attorney -- "for purposes of handling the restitution of any artworks that Oskar Reichel may have lost due to Nazi persecution." Seger-Thomschitz and Unterer initially thought that all of the artwork Dr. Reichel lost during the Nazi era had been returned. In 2006, however, an American attorney "began a colloquy" with Seger-Thomschitz and alerted her to the possibility that other works formerly owned by Dr. Reichel might be located outside Austria. Seger-Thomschitz retained the attorney, whose firm then sent a letter to the MFA on March 12, 2007, demanding the return of the Painting.


When confronted with Seger-Thomschitz's claim to the Painting, the MFA undertook "an exhaustive effort to research and document the provenance of the Painting in order to ascertain whether the claim . . . appeared valid or not." An MFA curator and an independent provenance researcher spent eighteen months researching the Painting's history, during which time they visited approximately ten museums and governmental archives around the world and corresponded with numerous other museums and archives. Based on that research, the MFA concluded that the original transfer of the Painting from Dr. Reichel to Kallir was valid and that it would retain the Painting in its collection. It commenced an action against Seger-Thomschitz in the United States District Court for the District of Massachusetts on January 22, 2008, seeking a declaratory judgment to "confirm its rightful ownership of the painting." Seger-Thomschitz answered the complaint in May of that same year and asserted counterclaims for conversion, replevin, and other state law causes of action.

As reported by ArtInfo here:

The MFA declined to allow Victoria Reed, the museum's curatorial research fellow for provenance who conducted the nine-month study of the history of the Kokoschka painting, to comment. It also would not release detailed materials from her report, saying, "The results of the museum's research are clearly outlined in its legal filing, which is publicly available and was shared with the Boston Globe."
###

What museum conducts eighteen months of research into a provenance that allegedly clears its title and then HIDES THE EVIDENCE?  

More on MFA's misdeeds here.
Not content to remain under her rock, Reed seems now to crave media attention for her occult activities.  A creepy puff piece where Reed brags of her furtive investigations and unpublished research here.   The writer refers to the MFA's payment (in lieu of returning the stolen work) as "rare preemptive compensation".

That's double-talk.  When the Austrians did it to Jews post-WWII to keep valuable pieces in Austrian museums, we have rightly deemed it extortion.

When the MFA does it, it is called "rare preemptive compensation".
More on Oskar Reichel here.

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

Software Programs: Joint Authorship, Work for Hire and Declaratory Judgment Actions for Copyright Ownership

Woods v. Resnick, 2010 WL 2814414 (W.D. Wis. July 16, 2010) involved two men who were members of an LLC.   One was the "idea guy".  The other was a software programmer who worked from home.

The "idea guy" claimed that he owned the software.  He hired an expert to show that he'd made independently copyrightable contributions, which is one of the requirements of joint authorship.  The court disregarded the expert's findings in part because the expert was not an expert in copyright law and found that the "idea guy" had supplied only some non-copyrightable formulas.

The software programmer worked at home, was the only one with access to the source code, worked independently, and importantly, never signed a work for hire agreement.

The court considered cross-motions for summary judgment.   From the decision, it does not appear that either party registered any claims with the Copyright Office. The court found the software programmer to be the "sole author" of the software program and thus the owner.

Interestingly, the court considered an argument that the LLC's representations to third party that it was the sole owner were admissions that the software programmer had transferred the copyright to the LLC.  17 USC 204(a) provides

§ 204. Execution of transfers of copyright ownership

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.

The court rejected the argument that the representations and warranties contained in service agreements to licensees that the LLC owned the copyright were sufficient to create an assignment satisfying 17 USC 204(a).

More on joint authorship here.

More on work for hire doctrine here.

More on assignments of copyright here.

More on declaratory judgments here.


Purchase Copyright Litigation Handbook from West here  

Cease and Desist Letters: The Attack on Unicorn Meat

Would this image/entry at Thinkgeek confuse you?

Prof. Rebecca Tushnet reports here on a doozy of a cease and desist letter:  the Thinkgeek blog posted a non-existent April Fool's Day Unicorn Meat product and the National Pork Board responded with a cease and desist letter, details here.

Overreaching by TM and copyright owners really hurts owners who legitimately protect their brands and creative works.   Note to lawyers: leave the fools alone on April 1.

Practice Tip:  Chapter 6 of Copyright Litigation Handbook is titled "Cease and Desist Letters and Declaratory Judgment Actions".   I cover the many pitfalls involved in sending cease and desist letters and the ample case law showing that many lawyers, a surprising number in big law firms, tend not to think carefully about the potential consequences before sending these letters.  The "first to file" rule has some tricky exceptions.   A cease and desist letter may be met with a declaratory judgment action in an inconvenient jurisdiction. 28 USC 2201.  Try explaining that little surprise to your client.

 Purchase Copyright Litigation Handbook from West here  

Art Litigation - Grosz v MoMA Amicus Curiae Brief on Nazi Spoliation

Jacob Hilsdorf 1910 photograph of Alfred Flechtheim

When artist George Grosz fled Nazi Germany in January 1933, he left his artworks in the care of Jewish art dealer Alfred Flechtheim.   Flechtheim was the premier contemporary art dealer of the Weimar Republic.  You haven't heard his name before and no one in the United States has even cared enough to make a Wikipedia page for him in English, even though our museums are full of works that passed through his hands.   My earlier posts on him here .   Big article in Welt Online today on Flechtheim here.  Use Google Translate to read it if you don't read German, it predicts that the Flechtheim restitution litigation will be the biggest ever filed in Germany.

My firm represents the heirs of George Grosz in trying to obtain restitution of artworks Grosz left with Flechtheim's gallery in 1933.  Our complaint was dismissed pursuant to Rule 12 b 6 of the Federal Rules of Civil Procedure as time-barred based on a settlement communication sent by MoMA Director Glenn Lowry to a representative of the Grosz Heirs, which the MoMA claimed, and the district judge accepted, to be a "refusal" for statute of limitations purposes under New York's demand and refusal rule.

I understand that MoMA made an informal presentation of its position to the NY City Bar Association's Art Law Committee, I am hopeful that we will receive equal time.

The Grosz Heirs appealed to the Second Circuit Court of Appeals, the appeal is now pending.  An amicus brief was filed in support of our position, a list of the Amici and a copy of the brief below:

American Jewish Congress, Commission for Art Recovery; Filippa Marullo Anzalone, Yehuda Bauer, Michael J. Bazyler, Bernard Dov Beliak, Michael Berenbaum, Donald S. Burris, Judy Chicago and Donald Woodman, Talbert D’Alemberte, Marion F. Desmukh, Hedy Epstein, Hector Feliciano, Irving Greenberg, Grace Cohen Grossman, Marcia Sachs Littell, Hubert G. Locke, Carrie Menkel-Meadow, Arthur R. Miller, Carol Rittner, John K. Roth, Lucille A. Roussin, William L. Shulman, Stephen D. Smith and Fritz Weinschenk, In Support of Plaintiffs-Appellants and Reversal


Grosz v MoMA Amicus Brief - Nazi Art Looting

 Purchase Copyright Litigation Handbook from West here  

Law Prof: American Museums Have Violated Washington Principles on Nazi-Looted Art

Two Nudes (Lovers)

1913

Kokoschka, Oskar, Austrian, 1886–1980

163.2 x 97.5 cm (64 1/4 x 38 3/8 in.)

Boston Museum of Fine Arts

Professor Jennifer Anglim Kreder compiled a chart of Holocaust-era art cases decided in U.S. federal courts since 2004.  The results are bleak, and show that American museums have systematically violated the Washington Principles on Nazi-Confiscated Art.

I wrote about the excellent panel Prof. Kreder organized in Washington DC on a US Commission on Nazi-Looted Art here.

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.

Unregistered Foreign Copyrights in US Courts: No Statutory Damages and Attorneys Fees

In Elsevier B.V. v. United Healthgroup, Inc., S.D.N.Y. January 14,2010, Judge William Pauley considered a plaintiff's claim that a provision of the Copyright Act requiring copyrights to be registered prior to an infringement violated the Berne Convention and thus was "preempted" by the U.S. Constitution.

The plaintiff commenced a declaratory judgment action that Section 412 of the Copyright Act violated Article IV of the U.S. Constitution because Section 412 conflicted with Article 5 of  the Berne Convention.

The problem comes up in the following context:  many foreign publishers of copyrighted materials do not register their copyrights in the United States, even if they publish or sell copyrighted works in the United States.   So when their works are infringed, they do not enjoy the protections of the sections of the Copyright Act that give statutory damages and attorneys fees to persons who have timely registered their works (Sections 504 and 505).

Elsevier provides access to a database on which many of the unregistered copyrighted works can be accessed.  Elsevier alleged that the defendant permitted others to access the database in violation of a subscriber agreement.

The provision challenged was Section 412 of the Copyright Act, which provides:

§ 412. Registration as prerequisite to certain remedies for infringement12



In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for —

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

Find Section 412 and the rest of the Copyright Act here.

The doctrine of "preemption" is used in a number of different ways in copyright practice, but here the Plaintiff was arguing that the doctrine of preemption provides that where the Exective Branch has validly committed the U.S. under treaty powers and Congress has ratified such commitments, any inconsistent laws are "preempted" by the treaty.

The Plaintiff pointed to  Article Five of the Berne Convention which states:  “the enjoyment and the exercise of [rights under the Convention] shall not be subject to any formality.”   Find the full text of the Berne Convention here.

The District Court analyzed whether the Berne Convention was "self-executing" and found that it was not.  In other words, for any provisions of the Berne Convention to be binding, enabling legislation has to be adopted by Congress.  The Court looked at the legislation implementing the Berne Convention and noted that Congress decided not to change Section 412.

Noting that no federal appellate court has ruled on the question of whether the Berne Convention is self-executing, but that other courts in the district found it not to be self-executing, the Court found that it cannot serve as a basis for a preemption claim under Article IV of the US Constitution.

Since the District Court found the Berne Convention not to be self-executing, it found that Article 5 could not serve as the basis for a preemption.    The question of whether Article 5 and Section 412 conflict were not reached, leaving the question in the hands of diplomats.

SCOTUS: Does Failure to Register A Copyright Deprive a Court of Subject Matter Jurisdiction?

In re Electronic Database Litigation, 509 F.3d 116 (2d Cir. 2007) cert. granted March 2, 2009.

Does 17 U.S.C. §411(a) restrict the subject matter jurisdiction of the federal courts

over copyright infringement actions?

Section 411 is the "register before you sue" rule.

The U.S. Supreme Court has granted a petition for certiorari on this question.   The Second Circuit, over the dissent of Judge Walker, vacated a class action settlement that authors and media companies had entered into after four years of negotiations.

The Second Circuit found that since the settlement covered unregistered copyrights (most of the authors writing for these publications), the federal court did not have jurisdiction to settle these claims.  

I indicated my agreement with Judge Walker's dissent in my December 2, 2007 post here

If you are interested in the rights of freelancers and the pros and cons of various settlements, check out Irvin Muchnik's Freelance Rights blog here

Yale Files Suit To Legalize Vladimir Lenin's 1918 Expropriation of Van Gogh

Today's visit to the Yale University Art Gallery's website reveals that the known provenance of Vincent Van Gogh's The Night Cafe is as follows (in italics):

Le café de nuit (The Night Café)
1888 Artist: Vincent van Gogh, Dutch, 1853 - 1890
Bequest of Stephen Carlton Clark, B.A. 1903
1961.18.34
This object is on view at the gallery.
Note: This electronic record was created from historic documentation that does not necessarily reflect the Yale University Art Gallery's complete or current knowledge about the object. Review and updating of such records is ongoing.

But an astonishing new lawsuit filed by Yale University in Connecticut alleges that Yale has known for many years that this Van Gogh once belonged to Ivan Morozov, a Russian aristocrat. NY Times article here. According to the Complaint, Vladimir Lenin signed a decree in 1918 nationalizing Ivan Morozov's art collection.

Yale is suing Morozov's grandson, who lives in France, for a declaratory judgment that Lenin's 1918 decree confiscating Morozov's collection was legal. The Complaint contains an endless list of publications in which Yale purportedly published its ownership of the Van Gogh, and, as best this reader could tell, always giving Stephen Carlton Clark as the first known provenance.

But the Complaint claims that the Van Gogh passed through the Matthiesen Gallery in Berlin and then through the Knoedler Gallery in New York. Why are the names of these galleries not displayed on Yale's website with the corresponding acquisition dates?

When did Yale learn that this work had been expropriated by Vladimir Lenin? And why does Yale's website continue to contain a misleading provenance that is directly contradicted by a complaint filed in Connecticut federal district court?

The Complaint says that Yale filed this lawsuit in response to a letter from an attorney for Pierre Konowaloff which attached a copy of a complaint to be filed in Connecticut District Court, thus creating the "case or controversy" under 28 U.S.C. Section 2201.

Practitioner's note: Annexed to the Complaint (available on PACER) is an "Order to Appear or Plead Pursuant to 28 U.S.C. Section 1655" that requires the defendant to appear or plead by May 22, 2009. The Complaint is dated March 23 and the order is dated March 25 and recites that the defendant has not yet appeared in the action. This painting has been sitting safely at Yale for 50 years. Unless Yale desperately needs to sell it in the near future, I can't imagine why or how it got an order fast-tracking the case before the defendant had even been served.

Just wait until Rush Limbaugh gets hold of this.

Shepard Fairey: Obama's Graffiti Artist Arrested

Shepard Fairey was arrested walking into an art exhibition on February 7, story here. Good discussion of the declaratory judgment action Fairey filed against the Associated Press to declare his Obama poster non-infringing and fair use on Donn Zaretsky's Art Law Blog here. Complaint filed by San Francisco lawyers in the Southern District of New York on February 8 here. NY Times coverage here. Apparently the freelance photographer who took the photo for AP claims the copyright and is thrilled that Fairey used the work the way he did.
The complaint does not allege that Mr. Fairey has claimed or registered copyright in his poster. The complaint also alleges that it was filed in response to threats by AP that it would file suit against Fairey on February 10.
The complaint also fails to mention Fairey's strongest potential defense: the poster is core political speech made during the course of a political campaign protected by the First Amendment. There is a lot of good case law about political speech, and the fact that the image was used and sold to promote a political viewpoint during a political campaign gives it a great level of deference. According to the complaint, Fairey sold 4,000 posters for $45 and used all of the proceeds to distribute nearly 300,000 posters for free. The U.S. Supreme Court has a pretty good record of upholding free speech in the political arena, and Fairey did pick a winning candidate.
If a plaintiff has not requested registration of a copyright and either received a registration or been refused by the Register of Copyrights, a federal court lacks subject matter jurisdiction over the subject matter of the photograph or the poster.

Declaratory Judgments on Unregistered Copyrights: A Cobbler's Dilemma

Stuart Weitzman LLC v. Microcomputer Resources Inc., 542 F.3d 859 (11th Cir. Sept. 12, 2008).
What happens when your custom computer programmer sends you a cease and desist letter telling you that you have the right to use the software they built for you, but that you do not have the right to possess the source code and that it "cannot be modified, changed or reverse engineered by anybody."
Well, the Stuart Weitzman people responded with a declaratory judgment action. They claimed that they were being accused of copyright infringement, that the subject matter was completely pre-empted, that there was a "case or controversy", that the court had federal jurisdiction. Seems pretty simple, right?
Wrong. The computer vendor had not registered the copyright in the software program, and Weitzman did not contest that the vendor owned the copyright. Nor could the Weitzman folks think up any state-law claims that they could seriously be sued for, which might raise a federal question to be decided (interpretation of the copyright act). Weitzman argued that the "federal question" raised was an anticipated copyright infringement action, and asked the court to construe Weitzman's defenses under 17 U.S.C. Section 117 (you are allowed to copy a computer program if such copying is necessary to run the program).
So the case was dismissed on subject matter jurisdiction, simply because the computer company had neither sued nor filed a copyright registration. This result appears to be anomalous and not in the spirit of other declaratory judgment cases. It is not clear that Weitzman showed how the business would be immediately and irreparably harmed by the cease and desist letter or that the controversy was "ripe".