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Brooklyn Museum Deaccessioning Artworks, Banksy Loses Trademark Battle and Other Stories

UNITED STATES

Two New York Antiquities Dealers Arrested for Allegedly Fabricating Provenance Documents

Two owners of a Manhattan-based antiquities gallery were arrested in connection with their suspected complicity in an alleged fraud scheme to swindle buyers with the use of fake provenance documents. Specifically, according to the indictment documents unsealed in a New York court, the dealers are accused of fabricating false provenance documents by listing deceased collectors as long-time owners of objects they had never owned. Provenance data, aside from its academic and historical value, plays a significant role in art and antiquities transactions. For example, legitimacy of ownership (such as in the context of Nazi-looted works) or of the exportation of a piece may be contested. Buyers are especially at risk in light of the United States’ caveat emptor (buyer beware) approach to art transactions. They must take reasonable precautions to ascertain provenance or risk losing their investment.

A Statue in Brooklyn to Memorialize the Late U.S. Supreme Court Justice Ruth Bader Ginsburg

The art community is celebrating the memory of the late Supreme Court Justice Ruth Bader Ginsburg with a mural and other painted tributes. The New York Historical Society meanwhile plans to host an exhibition next year, Notorious RBG: The Life and Times of Ruth Bader Ginsburg. Someone even placed a white lace collar on New York’s Fearless Girl statue. Now, New York Governor Andrew Cuomo announced that a permanent memorial statue will be installed in Brooklyn, where Justice Ginsburg grew up. The suggested placement of the statue is the Brooklyn Bridge Park, so that it may “overlook the Statue of Liberty.”

Brooklyn Museum Is Deaccessioning 12 Artworks to Finance Care of Its Collection

Brooklyn Museum is taking advantage of the interim guidelines released this past April by the Association of Art Museum Directors (AAMD), which until April 2022 will not penalize museums for deaccessioning artworks (the process by which a work of art or other object is permanently removed from a museum’s collection) to use the proceeds of their sales for the direct care of the museums’ collections. Twelve paintings, including the Brooklyn Museum’s only work by Lucas Cranach the Elder, are slated to be auctioned at Christie’s on October 15, 2020. The proceeds are to be used for purposes such as proper storage, conservation and caring for the museum’s collection, as well as staff member salaries. Previously, AAMD guidelines required that deaccessioning proceeds be used toward additional art purchases; however, these rules were relaxed to help American museums crushed by the financial crisis brought about by the coronavirus pandemic.

Artist Shantell Martin, Once Again a Victim of Copyright Infringement, Contemplates Suit Against a Wine Brand that Copied Her Work

Four years ago, artist Shantell Martin called out a clothing company for unauthorized copying of her artwork for use in a t-shirt design. Recently, she was dismayed to learn that a winery in Cordoba, Argentina, copied a section of her mural created for a 2017 show at the Albright-Knox Art Gallery in Buffalo, New York, for use on their wine label. Having confronted the winery, Martin was allegedly met with resistance to correcting the situation. She reportedly is reluctantly contemplating suit, noting the emotional and financial cost of litigation as well as the fact that artists are portrayed as aggressors when seeking redress for infringement of their rights.

Two Art Foundations Reach a Settlement in the Fight Over Robert Indiana Assets

The Morgan Art Foundation, which owns copyrights to the works of the deceased artist Robert Indiana, and the Star of Hope Foundation, the sole beneficiary of his estate, reached a settlement in a protracted litigation over the stewardship of Indiana’s legacy. The two foundations reportedly have agreed to collaborate on a number of projects, including the artist’s catalogue raisonné, the fabrication and sale of editioned works, and the maintenance of the artist’s website. For more on Robert Indiana’s estate battle, see our previous post.

EUROPE

Banksy Loses Trademark Battle, Leaving His Other Trademarks at Risk

Famously anonymous street artist Banksy lost his trademark battle with a card company, Full Colour Black, over his famous Flower Thrower image. In an effort to protect his intellectual property rights, Banksy even created pop-up shop “Gross Domestic Product” in south London last year to show that he was using his intellectual property rights (the shop never opened to the public). The strategy did not work. According to the ruling by the European Union Intellectual Property Office, Banksy’s trademark use was not genuine, but rather a bad-faith attempt to circumvent the law. The lawyer representing Full Colour Black told World Trademark Review: “If there was no intention to use then the mark is invalid, and there is also the question of fraud. In fact, all of Banksy’s trademarks are at risk as all of the portfolio has the same issue.” The panel separately noted that any future attempts to assert copyright could be problematic, due to the artist’s anonymity: “Banksy has chosen to remain anonymous and for the most part to paint graffiti on other people’s property without their permission rather than to paint it on canvases or his own property.” Calling into question the inability to identify Banksy as the “unquestionable owner of such works,” the panel noted, “it further cannot be established without question that the artist holds any copyrights to a graffiti.”

Police Seeking Attacker of British Museum’s Benin Bronzes, Who Failed to Appear for a Court Hearing

In January 2020, Isaiah Ogundele staged a protest action at the Museum of London Docklands’s exhibit “London, Sugar & Slavery.” He allegedly charged a display containing a selection of Benin Bronzes on loan from the British Museum and attempted to seize them. The Benin Bronzes were taken by the British Navy during their attack on the royal palace in Benin City, Nigeria, in 1897. In recent years, calls for the return of artifacts seized during European colonial expansion – including specifically the Benin Bronzes – have been mounting. Ogundele reportedly claimed that the Benin Bronzes were stolen from his heritage and that he wanted to take them back. He failed to appear a recent court hearing and was convicted in absentia for “threatening, abusive, insulting words, or behavior with intent to cause harassment, alarm, or distress.”

SOUTH AMERICA

São Paulo’s Museum of Contemporary Art Seeks Reimbursement for Conservation and Storage of Disgraced Brazilian Banker’s Art Collection

Following revelations of fraud, Banco Santos collapsed in 2005, and its former president, Edemar Cid Ferreira, was sentenced to 21 years in prison for money laundering and crimes against Brazil’s financial system the following year. More than 1,600 artworks from Ferreira’s collection were seized by the authorities and are currently being sold pursuant to a court order at an online auction that began on September 21 and will run through October 2, 2020. The Museum of Contemporary Art at the University of São Paulo is seeking reimbursement for the conservation, restoration and storage of almost all of the items included in the sale, an expenditure of more than BRL $20 million (about USD $3.5 million) over the past 14 years. In 2019, the court awarded the museum a reimbursement of their expenses, but not the value of the services rendered. The museum seeks reimbursement in kind from the seized artworks, some of which fit well with its existing collection.

© 2020 Wilson ElserNational Law Review, Volume X, Number 274
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Jana Farmer IP Lawyer Wilson Elser Law Firm
Partner

Jana Farmer represents client interests in connection with design professional matters and architects’ copyright; intellectual property matters involving copyright, sale and transfer of rights in artwork; protection of valuable creative assets; and general commercial disputes. In addition to handling cases before New York state courts, she defends clients in federal courts and in arbitrations and employs mediation to facilitate the cost-effective resolution of disputes. Jana also has experience conducting e-discovery and cross-border discovery in complex cases with large...

914.872.7247
Jacqueline Berelsen, Wilson Elser Law Firm, Orlando, Product Liability Attorney
Associate

Jacqueline Bertelsen focuses her practice on product liability, trucking and transportation, and complex tort and general casualty cases.

Before joining Wilson Elser, Jacqueline worked at a criminal defense and civil litigation firm in Orlando, Florida. While in law school, she was research assistant to Professor Robert Abrams and served as judicial law clerk to the Honorable Margaret H. Schreiber, Ninth Judicial Circuit of Florida, and a Fellow of the National Oceanic & Atmospheric Administration, Environmental Cooperative Science Center. She also clerked at the Environmental Appeals Board of the U.S. Environmental Protection Agency. Prior to that, Jacqueline was a paralegal for three years and served as firm administrator and legal assistant at a firm in Tallahassee, Florida.

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