At the start of a new year Nicholas O’Donnell Partner at Sullivan & Worcester and Editor of ‘The Art Law Report’ blog, looks forward to the year ahead and takes us back through his countdown of the 10 biggest art law stories of 2014.
As the ball teeters above Times Square, and the Glühwein begins to mull on the Art Law Report stove (don’t forget the cinnamon!), a gimmicky but apropos act of reflection is to look back at the biggest stories of 2014, both in art law generally and for yours truly and Sullivan & Worcester LLP. In highly subjective, unverifiable, and immediately criticizeable order, here they are. Thanks as always for reading, and best wishes for in interesting, prosperous New Year. If you agree, disagree, or otherwise, please continue to stay in touch and carry the conversation forward.
10. Restitution Rights Continue on the Upswing.
Never a straight line, restitution claimants saw a big victory this year when Marei von Saher’s claims against the Norton Simon were reinstated by the Ninth Circuit Court of Appeals. Holding for the first time that the Washington Principles and restitution are consistent with the foreign policy of the U.S., the court swept away prudential defenses that only a couple years ago seemed to be gaining.
9. Dumb Starbucks
In the end it was a Comedy Central gag, but the curious case of the “Dumb Starbucks” was a clever and illustrative case study in what constitutes parody and fair use.
Whether the ongoing fallout from the Knoedler fraud or efforts to protect authenticators legislatively, the question of authenticity is probably the most consistently recurring theme in art law right now.
7. Graffiti Art and Protection
Most would agree that graffiti is as independently copyrightable as anything else, but when you factor in the often-illicit nature of the medium itself (i.e., the medium is often someone else’s property), the results continue to get interesting, with 5Pointz providing the year’s most captivating example. This topic is most certainly not going away.
6. Someone is Reading the Blog!
Thanks to you, traffic here surged geometrically this year, nearly tripling over the year before. Quite by accident, this was noticed by the good folks over at Above the Law, and we were famous for a day.
5. Artmentum Prevails
When Asher Edelman sued my client Artmentum GmbH in January, it was reported with great publicity. Less reported outside the Art Law Report was the complete dismissal of the case in November in response to our motion to dismiss. The appeal period has since passed, and the judgment is final.
4. Mask of Ka Nefer Nefer Stays in St. Louis
Our best-read post of the year, 2014 brought an end of the saga of the U.S. government’s failed attempt to seize the ancient Egyptian mask by arguing that it was stolen property when it entered the U.S. Blown deadlines and failed pleading requirements characterized this case, which is over unless the nation of Egypt itself tries to pursue civil action in the States.
3. The Corcoran
After years of financial difficulty, the Corcoran Gallery and the Corcoran College of Art + Design applied to the Superior Court in Washington, DC for cy pres—to modify the trust of William Corcoran on the argument that merging with George Washington University and the National Gallery of Art would accomplish Corcoran’s intent “as nearly as possible.” A pitched battle ensued, but in the end the court allowed the modification and the merger went through.
2. Cornelius Gurlitt
In 2014, Gurlitt fought back, reached an agreement, passed away—and then things got complicated. When 2014 dawned, Bavaria was proposing a new law to revise the statute of limitations possibly to allow claims for the 1,280 works of art found in Cornelius Gurlitt’s Schwabing apartment and revealed in November, 2013. Yet there was little real sense of what was going to happen. In April Gurlitt took steps to get his art back, then reached an agreement for the review and possible restitution of Nazi-looted objects. Shortly thereafter, he passed away. To the surprise of everyone, he named the Kunstmuseum Bern in Switzerland as his sole heir. The museum waited until November to accept the appointment and announce an agreement with Germany to review the provenance and oversee restitution, but Gurlitt’s competence even to make that bequest is still being litigated. This is likely to remain one of 2015’s biggest stories, too.
1. Detroit Bankruptcy and the Insitute of Arts
Edging out the ongoing Gurlitt story, it’s hard to argue that the back and forth over the potential sale or collateralization of the collection of the Detroit Institute of Arts was the biggest story of the year. Tying together questions of title, trust law, bankruptcy, and the ethics and law of deaccessioning, the perils of Detroit and DIA forced the question of what art is worth, both as an asset and as the foundation of a community. In the end the Grand Bargain held.
Nicholas M. O’Donnell is a partner in the Litigation Department of Sullivan & Worcester’s Boston office. Mr. O’Donnell’s practice focuses primarily on complex civil litigation. He represents manufacturers, individuals, investment advisers, banks, and others around the world in contract, securities, consumer protection, tort and domestic relations cases, with particular experience in the German-speaking world. He is also the editor of the Art Law Report, a blog that provides timely updates and commentary on legal issues in the museum and visual arts communities, one of his areas of expertise. to contact Mr O’Donnell firstname.lastname@example.org