Free CLE - IP Colloquium on Fair Use and Shepard Fairey v. Associated Press

Prof. Doug Lichtman has put together another excellent program at the IP Colloquium. This program interviews players in the case Shepard Fairey v. Associated Press (attorney Mark Lemley for Shepard Fairey and attorney Dale Cendali for the Associated Press). Ken Richieri, GC of the New York Times comes in with an interesting take on the controversy. I wrote about the case here.

The case is pending in the Southern District of New York before Judge Alvin Hellerstein. The latest news from the docket sheet (as of August 14, 2009) is that photographer Mannie Garcia is claiming ownership of the photograph, and both Fairey and Associated Press are counterclaiming against Garcia.

The image you see here is of Paul Newell, a candidate endorsed by the New York Times in his race against Speaker of the Assembly Sheldon Silver that took place on New York's Lower East Side.

Newell, deemed "the quintessential anti-establishment democrat" by the Times garnered a respectable 24% of the vote where the incumbent spent over $800,000 to keep his seat.

I think that the IP Colloquium perhaps underplayed the whole political aspect of the expression involved and the role that core political speech plays in our jurisprudence, at least for Fairey's activities up until the election. But the arguments are interesting and for those interested in copyright issues, political speech and artistic freedom, the case opens up a very tasty can of worms.

IP Colloquium has programs that you can listen to or download for free. Attorneys can receive free CLE credits by completing an online form after listening to the program.

Tennessee Judge Immunizes Germany From Nazi Art Looting Claims Finding "Commercial Exception" to Act of State Doctrine

In Westfield v. Federal Republic of Germany, 2009 WL 2356554 (M.D. Tenn. July 28, 2009), a federal judge dismissed a lawsuit against Germany on the grounds that Germany enjoyed soveriegn immunity for act of the Nazi regime in looting artworks from Jews that it systematically murdered.

The decision is remarkable in that it fails to cite any of the binding case law that goes precisely the other way. In Bernstein v. N.V. Nederlansche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375 (2d Cir. 1954), the U.S. stripped Germany of its immunity for actions of the Nazi regime in murdering and looting from Jews.

In Bernstein, the Second Circuit revisited an earlier opinion granting the Nazis sovereign immunity for their actions. The court wrote:

Following our decision, however, the State Department issued Press Release No. 296 on April 27, 1949, entitled: ‘Jurisdiction of United States Courts Re Suits for Identifiable Property Involved in Nazi Forced Transfers.’ The substance of this Release follows:
‘As a matter of general interest, the Department publishes herewith a copy of a letter of April 13, 1949 from Jack B. Tate, Acting Legal Advisor, Department of State, to the Attorneys for the plaintiff in Civil Action No. 31-555 in the United States District Court for the Southern District of New York.
‘The letter repeats this Government's opposition to forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or peoples subject to their controls; states that it is this Government's policy to undo the forced transfers and restitute identifiable property to the victims of Nazi persecution wrongfully deprived of such property; and sets forth that the policy of the Executive, with respect to claims asserted in the United States for restitution of such property, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.'
The letter from Mr. Tate is then quoted, pertinent parts of which follow:
‘1. This Government has consistently opposed the forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or people subject to their controls. * * *
‘3. The policy of the Executive, with respect to claims asserted in the United States for the restitution of identifiable property (or compensation in lieu thereof) lost through force, coercion, or duress as a result of Nazi persecution in German, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.'
In view of this supervening expression of Executive Policy, we amend our mandate in this case by striking out all restraints based on the inability of the court to pass on acts of officials in Germany during the period in question. See 173 F.2d at pages 75-76. This will permit the district court to accept the Release in evidence and conduct the trial of this case without regard to the restraint we previously placed upon it.

Ever since Bernstein, the exception to soveriegn immunity where the Executive branch has opened up the federal courts for business has been known as the Bernstein exception to the Act of State Doctrine.

The U.S. Supreme Court recently found Nazi art looting to be part of the "expropriation exception" to the Act of State Doctrine. I quote from Republic of Austria v. Altmann, 541 U.S. 677 (2004):

The Act itself grants federal courts jurisdiction over civil actions against foreign states, § 1330(a),FN12 and over diversity actions in which a foreign state is the plaintiff, § 1332(a)(4); it contains venue and removal provisions, §§ 1391(f), 1441(d); it prescribes the procedures for obtaining personal jurisdiction over a foreign state, § 1330(b); and it governs the extent to which a state's property may be subject to attachment or execution, §§ 1609-1611. Finally, the Act carves out certain exceptions to its general grant of immunity, including the expropriation exception on which respondent's complaint relies. See supra, at 2245-2246, and n. 5. These exceptions are central to the Act's functioning: “At the threshold of every action in a district court against a foreign state, ... the court must satisfy itself that one of the exceptions applies,” as “subject-matter jurisdiction in any such action depends” on that application. Verlinden, 461 U.S., at 493-494, 103 S.Ct. 1962.
FN12. The Act defines the term “foreign state” to include a state's political subdivisions, agencies, and instrumentalities. 28 U.S.C. § 1603(a).
The District Court agreed with respondent that the FSIA's expropriation exception covers petitioners' alleged wrongdoing, 142 F.Supp.2d, at 1202, and the Court of Appeals affirmed that holding, 317 F.3d, at 967-969, 974.

Since the court's decision does not even mention the expropriation exception, it is hard to tell whether this was alleged in the complaint or argued in the briefs. I will look into this, since the decision is so contrary to precedent.

The Nazis were tried by the U.S. and found to be a criminal conspiracy, not a legitimate government. In re Nurnberg, 6 F.R.D. 69, 121 (1946, 47).

The Tennessee court's decision is deeply troubling and clearly wrong.

(Eglon van der Neer's "Portrait of a Man and Woman In an Interior")