Art Law

Art Forgery Trial Asks: Were Dealers Duped, Or Did They Turn A Blind Eye?

“Art Forgery Trial Asks: Were Dealers Duped, Or Did They Turn A Blind Eye?”

by Joel Rose via “NPR

The Knoedler & Company art gallery, shown here in 2010, had been in business  since before the Civil War. The gallery permanently closed its doors in 2011.

The New York art world was shocked when the city’s oldest gallery abruptly closed its doors more than four years ago. A few days later, news broke that Knoedler & Company was accused of selling paintings it now admits were forgeries for millions of dollars each. The gallery and its former president face several lawsuits by angry collectors and the first trial began this week.

The forgeries at the center of the scandal look like masterpieces by Jackson Pollock, Willem de Kooning and other prominent abstract expressionists. They were good enough to fool experts, and even Ann Freedman, then-president of Knoedler & Company, says she was duped.

Her lawyer, Luke Nikas, says, “Ann Freedman believed in these paintings. She showed them to the whole art world. She showed them to experts. And she has piles and piles of letters from all of these experts informing her that the works are real.”

Nikas says Freedman even bought some of the paintings for her own personal collection. But the plaintiffs in this case and other pending lawsuits say Freedman overlooked glaring problems with the paintings’ backstories. The art dealer who sold the paintings to the gallery, a woman named Glafira Rosales, pleaded guilty to fraud and money laundering charges in 2013. According to Freedman, Rosales told an elaborate story involving a European collector (known only as “Mr. X”) who bought the paintings with cash in the 1950s, when he was having an affair with an assistant at two top New York galleries.

“It’s quite a tale, and people bought it,” says Amy Adler, who teaches art law at New York University. “I suppose the temptation would be there — not just for buyers, but, yes, even for sellers — to think they’d happened upon these magnificent, undisclosed masterpieces.”

In the end, Rosales admitted to selling Knoedler 40 counterfeit paintings over more than a decade. The plaintiffs argue that Freedman knew — or at least should have known — that something was amiss. It’s hardly the first time an art dealer has been accused of deliberately looking the other way.

Ken Perenyi is a professional art forger who wrote about his career in the book Caveat Emptor. “From over 30 years’ experience with art dealers,” he says, “I would say there most certainly are individuals out there in the trade that will turn a blind eye.” . . .

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Copyright: The Constitutional Background

***This is not intended to be legal advice. First, this is an ESL Primer, and so is fairly simplified. Second, each person’s situation is different.  Please contact your attorney for legal advice as it applies to you!! 

Copyright:

The Constitutional Background

by Profs. Olivia L. Blessing, JD and Angela K. Blessing, MBA, JD

 via “Cultured Muse

Introduction

When asked to think back to the American Constitution, many Americas recall dusty memories of political office age restrictions and voting laws. Yet, the founding fathers were not only devoted to taxes and wars; they were interested in cultural and scientific issues as well.

In fact, they considered art and inventions so important to American culture and development as to warrant Constitutional protection. In America, the Constitution is the highest law in the country, it trumps everything.  If it is in the Constitution, it is extremely important to the Government. And Copyright protection is one of those extra important issues the Government is involved in.

So what exactly does the Constitution say?  As we saw before, Article 1, Section 8 of the U.S. Constitution says Congress has the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Cool! Now, what does that mean?

Basically, it means that the Government encourages the arts and sciences by offering authors and inventors the right to stop anyone else from copying or using their writings or inventions for a limited amount of time.

More specifically, there are two things of note revealed in this rule.

  1. Copyright belongs to Federal Law

“Congress has the power. . . “

We are not going to get into the distinctions between U.S. federal and state government here; the concept is difficult enough for law students and needs no confusing explanations here.  Suffice to say, any argument or issue regarding Copyrights is going to end up in Federal Court with Federal Judges and controlled by Federal Law.  “Federal” meaning the national government based in Washington, D.C.  Think President, Supreme Court, the Senate, and the House of Representatives.

This is convenient in that artists and business professionals only need to remember the Federal approach to the law rather than struggling with 50 different states’ rules.

We’ll talk more about the  actual laws itself later.

  1. The Federal Govern Has a Very Specific Reason for Enforcing Copyright Law

“[T]o promote the progress of science and useful arts. . .”

Why on earth would the National Government get involved in the subject of rewarding author’s and creator’s for their work? It’s not like the Government is usually involved in business affairs such as this—they don’t honor plumbers for their work on the pipes or protect firefighters for their time fighting fires.  What makes “artists” and “inventors” so special that they get extra governmental rewards?

First of all, the purpose for Copyright protection is not to reward the artist.  It is to promote the sharing of knowledge, ideas, and information with the public who can use it to promote the public good. As the Supreme Court has explained, the Copyright Clause in the Constitution is intended to realize “the creation and dissemination of information. . . .[promoting] knowledge and learning” (Eric Eldred v. Ashcroft, 537 U.S. 186 (2003)).   They went on to say, the Clause accomplishes this goal by “motivating the creative activity of authors” via “the provision of a special reward.” (Sony Corp. of America v. Universal City Studies, Inc., 464 U.S. 417, 429 (1984)).  By offering a reward (a certain time during which the creator controls the use of their work), the Government encourages them to share it with the public thus benefitting society as a whole.

  1. What is the General Result of Copyright Law?

All in all, a Copyright gives the inventor a monopoly over the use of their work for an extensive period of time.

Traditionally, Americans have been adverse  to monopolies, but in the case of Copyrights it is generally considered a good thing that benefits society in the long run.  There are three primary results that Congress believes Copyrights achieve:

The Creation of New Ideas.  There is a reason developing countries focus so intention on “innovation” and “entrepreneurship.” Without this, the society stagnates and ceases to grow and improve.  Only with the introduction of new ideas, inventions, or discussions will the public continue to find new methods of becoming better and better versions of themselves.

Thus Congress offers inventors and creators a limited time of protection so that they might benefit from their work and thus be encouraged all the more to share what they discover with society.

First, it is during that time that the author or inventor will profit the most from their work. Think about it.  Once a book is available free online and people have free access to it, does the original creator make as much money as they do when they control all the prices and places where the book is sold?  No. Once you lose control, you start to lose money.  So in exchange for them sharing their creation with the world, Congress gives them a limited time to benefit monetarily.

Second, this protection gives the creator a great deal of control–monitoring who can sell, who has access, who can use the work and for what purpose.  Because of that control, they supposedly are more comfortable sharing their new findings.  Let’s say you are a really great film-creator, but your newest historical work deals with mature topics–illnesses, death, war.  You want people to have access to your movies, but you strongly believe that children younger than 13 are too young.  With a Copyright, you have the right to tell the theatres and sellers that the film must include a warning against showing it to children.  You also know that no one will distort your work or change your message because the Government will punish them if they do.  Because you have that control, Congress believes you feel more comfortable sharing your work with the world.

Fairness.  American law was founded upon the important concept of “fairness”—what is the most fair thing to do?  Fairness is why courts enforce contracts, why bad production is punished under torts, and why criminals are guaranteed a lawyer.  In our hearts, it seems only fair that people who work hard to create something should be rewarded for their hard work so long as the public still benefits. As John Locke, a great English philosopher, said “Every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say are properly his”(Locke, “Second Treatise of Civil Government“).

 The Dissemination of Those Ideas Freely Amongst the Public. The government does not want the creator to have a permanent monopoly over the work or concept forever.  Society will not improve unless the public can actually use the new inventions and ideas in their own lives and work.

Remember the use of the word “limited” in the Constitution.   After the time runs out, the idea/work belongs to the public and is free for their use.  They can in turn build upon it or work with it to create even newer ideas or inventions.

CONCLUSION

Having decided that Copyright is the best way to protect your efforts, you need to understand what Copyrights do and how the Government views them.  You benefit from the fact that Copyright protection was important enough to be in the Constitution; this means that the court should take your situation very seriously.  As an element of Federal Law, your protection goes beyond simply your local state or city—it extends nationwide. Furthermore, it is comforting to know that fairness is so important to the courts and that they are prepared to offer you an incentive for sharing what you’ve learned.

However, don’t forget that the final purpose of the law is not to benefit you but to benefit society as a whole.  Fairness is important, but it is not your strongest selling point if you are in a court case.  The government is primarily looking out for the interests of society, and that is where your strongest argument for the protection of your work should come from.  You need to convince the Government that by offering you this protection, they will be ultimately  helping to improve and help the  public.

 

 

 

Copyright v. Trademark v. Patent

abstract art idea

“The Sleeping Virtue” by MissNickiPink

To Be in Copyright or Not To Be in Copyright. . . That is the Question.

Here in China, I’m currently teaching my darling students Business Law, which includes a healthy dose of Art and Cultural Heritage law surprisingly enough.  Although, if you think about it, Businesses deal in Art and Words as much as anyone–and I’ve discovered the rules for them are often similar to those for individual artists.  

But one of the most basic questions my students get stumped with is what is the different between a copyright, trademark, and patent?

Lawyers like to throw around those words like they mean something, but it’s a big pile of nothing for anyone else.  Still, many of your rights and protections are caught up in the relevant Copyright, Trademark, or Patent. So if you want to adequately protect yourself (in business or in art), you need to know which one you need.  

As I help my students, I thought I would share some information here as well.  I’m teaching basic overview of the law, so this is all simple information 🙂  Please Note: This is not intended to be Legal Advice! Every situation is different, and if you have a situation you need to speak with your own Attorney! (more…)

Art and law come together at weekend conference

“Art and law come together at weekend conference”

by Michelle Liu via “Yale Daily News” 

An upcoming conference will show that artists do more with the law than get in trouble with it.

This weekend, over 350 people from all over the world will attend “The Legal Medium,” a multidisciplinary conference taking place this Thursday through Saturday at the Yale Law School. Organized by a group of 14 graduate and undergraduate students, the event aims to explore the relationship between art and the law, focusing on topics such as how artists manipulate legal boundaries in their work. Amar Bakshi LAW ’15, the main organizer of the conference, said the upcoming event is unique in that it approaches the art-law connection from an artistic rather than a legal perspective.

“Most conferences on law and art tend to be about how lawyers deal with issues such as repatriation of works, cultural property in different domains or even the economics [of art] and its linkages to different legal systems,” Bakshi said.

Alexandra Perloff-Giles LAW ’17, a co-organizer of the conference, also highlighted the uncommonly interdisciplinary nature of the conference, noting that it draws together a large variety of professionals from different disciplines, such as architects, curators, lawyers and poets. She added that such collaborative ventures between multiple graduate schools at Yale — including the YLS and the Yale School of Art — are also rare.

The conference will feature a presentation by performance artist Tehching Hsieh, who is renowned for acts such as relegating himself to solitary confinement for a year. His piece will both comment on legal regimes and interact with them, according to Bakshi.

Four discussion panels will also be held during the conference, exploring how artists interact with laws of the human body, artificial and natural environments, the digital world and the government.

Perloff-Giles emphasized that encounters between art and law in the modern world occur in many different ways. She cited the detainment of artist Tania Bruguera, originally a speaker for the conference, in December 2014 by the Cuban government after Bruguera attempted to stage an open mic event in Havana, Cuba.

In conjunction with the conference itself, Lucy Hunter GRD ’19 is curating an exhibition entitled “Irregular Rendition” at the Fred Giampietro Gallery on Chapel Street. Hunter said the exhibition seeks to expand the ways in which laws — ranging from laws of jurisprudence to laws of physics — are viewed from an artistic perspective.

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Art Law Rising

“Art Law Rising”

by Robert Milburn via “Barron’s”

The fast-growing and unregulated art market, invaded by art-collecting novices, has already seen a proliferation of hand-holding art advisors. Now we are seeing a new art advisor enter the market: specialist lawyers helping to settle ownership, copyright and authenticity disputes.

“Even people that have experience make common mistakes,” says Brian Kerr, partner at the recently launched art law firm Spencer Kerr. “The works being sold are of staggering value so the stakes are just too high.” That’s precisely when people reach for their lawyers.

Getty Images

Ronald Perelman purchased Popeye, by artist Jeff Koons, from Larry Gagosian.

Consider billionaire art collector Ronald Perelman, who sued fabled art dealer Larry Gagosian, claiming Gagosian “took advantage of his position of trust” and misrepresented the value of certain works. According to the lawsuit, Gagosian overvalued works sold to Perelman and undervalued pieces it bought from the collector. Among the works changing hands were sculptures by Jeff Koons and Richard Serra and paintings by Cy Twombly. In December, Perelman lost in an appeal with a five-judge panel essentially ruling that the sophisticated collector could have conducted his own due diligence.

Kerr represented London-based filmmaker Joe Simon-Whelan, in 2009, against the Warhol Foundation for the Visual Arts. Simon-Whelan purchased a Warhol silkscreen self-portrait for $195,000 in 1989, which back then was deemed genuine by the foundation. He resubmitted it to the foundation for authentication, in 2001 and 2003, just before an anticipated $2 million sale, and this time the work was twice branded a fake.

In the end, the Warhol foundation spent $7 million on its defense. Simon-Whelan eventually folded and was awarded nothing, claiming he was “deeply saddened” about being “unable to reveal the truth in court, but faced with bankruptcy, continuing personal attacks and counterclaims, I realized I no longer stood a chance of proceeding further.” Shortly thereafter, in 2012, the Warhol authentication board was disbanded.

Much of Kerr’s current work involves helping shell-shocked collectors recover scraps from among the emotional and financial wreckage, after purchasing a fake. But the law firm is also connecting its previously-burned clients with outside consultants and art advisors to help them establish clear provenance and authenticity before they buy new work.

“The goal is that when [clients] stick up their hand at an auction or buy from a gallery, that the legal side and consulting work is done hand-in-hand,” Kerr says. He adds that the consultants bill separately for their services and the law firm collects no fee for referring the business.

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