June 27, 2022

Volume XII, Number 178

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June 27, 2022

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June 24, 2022

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U.S. Copyright Office Weighs in on AI-Created Art, Jeff Koons Claims a Sculpture Is a Useful Article and Other Stories

Jeff Koons Defends Copyright Infringement of a Sculptural Work, Claiming “Useful Article” Defense and Fair Use

In 2021, set designer Michael Hayden sued appropriation artist Jeff Koons for copyright infringement arising out of Koons’s use of Hayden’s 1988 sculpture in a 1989 series of artworks titled Made in Heaven. The original sculpture, depicting a serpent wrapped around a rock, was created as a stage prop for adult film star Ilona Staller (former wife of Koons). The infringing works depict Koons and Staller atop the snake sculpture in explicit poses. Hayden claims Koons never asked permission to use the snake sculpture, did not offer to credit him and never applied for a license, and that he was unaware of the claimed infringement until 2019.

Koons argued on a motion to dismiss that the sculpture is a “useful article” to serve as a “platform” for Staller. Useful articles are protectable by copyright only to the extent they have artistic elements that are separable from their utilitarian aspects. Koons asserts that the sculpture is not separable from the rest of the work and that he made a transformative fair use of the sculpture, pointing out that the sculpture is a utilitarian platform, that Hayden failed to identify any cognizable market harm, and that the broader public interest is served by allowing the use.

The Second Circuit (home of the court hearing the Hayden v. Koons lawsuit) recently ruled in favor of an artist in another transformative use matter, Warhol Foundation v. Goldsmith, which led the Andy Warhol Foundation to petition to the U.S. Supreme Court. Should the high court take up this case, the decision is likely to have far-reaching implications for appropriation artists such as Koons.

The Art Newspaper:  Jeff Koons accused of appropriating sculpture for 1989 series featuring his ex-wife

Reuters:  Pop artist Jeff Koons sued over adult film set prop

The remaining summaries of news headlines are separated by region for your browsing convenience. 

UNITED STATES

U.S. Copyright Office Weighs in on AI-Created Art

What do artificial intelligence and Naruto the Monkey (of “monkey selfie” fame) have in common? Both created artworks that lack “the human authorship necessary to support a copyright claim.” The U.S. Copyright Office rejected the request for copyright protection on an AI-created artwork, A Recent Entrance to Paradise, which was submitted by Steven Thaler on behalf of the “Creativity Machine,” the claimed author of the work. Thaler, whose efforts are “an academic project” according to his attorney, maintains that the human authorship requirement is unconstitutional. He is currently making similar efforts with patents.

ArtNet:  Can A.I.-Generated Art Receive Copyright Protection? U.S. Authorities Say No, Citing a Lack of “Human Authorship” 

Sackler Settlement to Allow Any Museum to Remove the Family’s Name from Museum Faculties

The Sackler family, associated with Purdue Pharma, reportedly reached a settlement with nine state attorneys general and the District of Columbia for its role in the opioid epidemic. As part of the agreement, any U.S. museum that previously received gifts from the Sackler family and agreed to feature the Sackler name will now reportedly be free to remove the Sackler name from their facilities, programs, scholarships and endowments without objection. The proposed agreement still needs to be confirmed by the U.S. Bankruptcy Court for the Southern District of New York and approved by the U.S. Court of Appeals for the Second Circuit. 

ArtNet : In New Settlement Discussions, the Sackler Family Agrees to Allow Any Museum to Remove Its Name without Penalty 

Settled Lawsuit Sheds Light on Discreet Deals Between Art Collectors

A Florida lawsuit settled in January 2022 shed light on discreet deals collectors make when it comes to acquiring coveted and hard-to-get contemporary artworks. Galleries prefer to sell artworks to museums, which better care for them and usually will not resell them, for the prestige associated with an artist’s work being in a museum. Alternatively, galleries will do business with collectors with whom they have ongoing relationships to avoid having the artworks resold by unscrupulous collectors, which hurts the artist’s market. What are less-connected collectors to do if they wish to acquire blue chip art?

Court materials from a lawsuit filed in Miami-Dade County circuit court show that a Monaco-based Argentine collector, Federico Castro Debernardi, agreed to pay a 10 percent markup to Michael Xufu Huang, founder of the X Museum in Beijing, if the latter would acquire coveted artworks for Debernardi. As a museum owner, Huang had access to difficult-to-secure artworks that Debernardi did not.

The problems between the two collectors arose after Huang purchased a $700,000 Cecily Brown painting from New York’s Paula Cooper Gallery.  The sale agreement for the artwork restricted the sale of the work for a minimum of three years without giving the Paula Cooper Gallery the right of first refusal. Ignoring the agreement, Huang transferred the painting to Debernardi for a 10 percent commission fee and travel expense reimbursement. While the transfer from Huang to Debernardi was problematic, Debernardi resold the work via the Lévy Gorvy gallery in March 2020.

Huang settled with the Paula Cooper Gallery for breach of the exclusivity clause for a confidential amount that was reportedly significantly higher than the 10 percent he made from the deal with Debernardi. He then sued Debernardi for breach of contract and sought reputational damages, thus making the parties’ transactions public. The lawsuit highlights the effectiveness of resale contract clauses in helping galleries protect their artists’ careers and their market.

ArtNet:  A Bombshell Lawsuit Between Two Collectors Exposes How Far Some Will Go to Get Access to the Art They Want

Bloomberg:  A Million-Dollar Lawsuit Uncovers Backdoor Art World Contracts

EUROPE

The Louvre and Sotheby’s Join Forces to Research the Provenance of Works Acquired by the Museum Between 1933 and 1945

The Louvre and Sotheby’s have engaged in a three-year sponsorship deal aimed at researching items acquired by the museum between 1933 and 1945. According to a statement published by The Louvre, the deal is to help fund research that “may lead to restitutions.” Sotheby’s is the first international auction house to have a provenance research and restitution department; their scholars will assist with The Louvre’s research. Between 1933 and 1945, The Louvre reportedly acquired 13,943 works of art from various time periods. 

Art Newspaper:  Louvre Teams Up with Sotheby’s to Investigate Provenance of Works Bought During the Second World War

Observer: The Louvre and Sotheby’s Are Teaming Up to Identify Works for Restitution

Antiques Trade Gazette: Louvre and Sotheby’s team up to trace provenance of artworks bought by museum during Second World War 

Unmasking the Collector Account Trolls on Social Media

As more social media accounts of purported high-flying art collectors turn out to be fake or are deleted, a group of lawyers is investigating possible crimes (including identity theft) that may have been committed via these accounts. For example, the convicted con artist Anna Delvey used social media to prop up her image as an heiress as part of her scheme to defraud her art world friends.

ArtNet: Four Italian Collectors on Instagram Have Been Unmasked as Catfish Accounts. Was It a Scheme to Pump Emerging Artists? 

Four British Activists Who Pulled Down the Colston Statue Are Acquitted

On June 7, 2020, the “Colston Four” were accused of illegally removing the 17th century statue of Edward Colston, a U.K. slave trader, in sympathy with a Black Lives Matter march in the United States. The Colston Four were acquitted of criminal damage charges by a jury.

Returning the Colston statue sparked a debate in British politics. After consultation with almost 14,000 individuals on re-displaying the Colston statue, the survey responses revealed that a majority wanted the statue on display in a Bristol museum in its current state, horizontal and graffiti intact, rather than cleaned up and displayed vertically or back on the plinth it occupied for more than 100 years. The statue is so displayed in Bristol, but the debate over “problematic” art continues and not everyone is happy with these results. 

ArtNet: The “Colston Four,” Who Toppled a Statue of a U.K. Slave Trader Last Year, Have Been Cleared of Criminal Charges

BBC: Edward Colston statue on display in Bristol exhibition

© 2022 Wilson ElserNational Law Review, Volume XII, Number 70
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About this Author

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
Leia Leitner Associate Attorney Orlando Florida Intellectual Property Data Privacy Wilson Elser Law Firm
Associate

Leia Leitner is an experienced complex commercial litigator in federal and state courts. Her practice focuses primarily on complex tort and general casualty, intellectual property and brand protection, and privacy and data protection. 

Prior to joining Wilson Elser, Leia was an associate at a boutique law firm in Maitland, Florida, where she focused primarily on insurance defense for class action matters filed by consumers relating to the Fair Debt Collection Practices Act (FDCPA), Fair Credit Reporting Act (FCRA) and the Telephone Consumer...

407-423-7287
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