Perhaps because it’s the slow summer season, art and antiquities have been very much in the news – well at least in the NYT. So, for your beach reading pleasure, we refer you to:
In the first article entitled “The Curse of the Outcast Artifact, the NYT reports on the problems in donating unprovenanced artifacts – which by some estimates may include more than 111,900 objects in private hands.
According to a recent article in the New York Times, one of the downsides of the booming art market is that many art scholars no longer feel they have the right to be wrong when opining on the authenticity of works. Because there can be so much money at stake, some experts have found themselves the target of lawsuits due to unfavorable opinions.
In fact, the Andy Warhol Foundation for the Visual Arts, the Roy Lichtenstein Foundation, as well as other museums and institutes have stopped authenticating works in order to avoid litigation. Although art experts have been sued for years over their opinions, the amount of exposure due to the value of many works has created the current problem. And whether insurance responds to such lawsuits is, in some cases, unclear.
Whether this leads to the sale of more fakes, or causes experts to sit idly by when a known forgery is being sold remains to be seen. But we will continue to follow this development. Please write to Mike Bono at if you would like further information.
The California Resale Royalty Act is a lightening rod for controversy in the art world. It provides that a living artist (or his or her estate or heirs) is entitled to 5% of the resale of the artist’s work. There are a number of conditions that apply, including the fact that either the artist or owner of the work lives in California, or that the sale takes place in California, and the sale must occur during the artist’s life or within 20 years of the artist’s death. Although the Act is well-intentioned, it can be difficult to ascertain and enforce rights, and creates headaches for art dealers, galleries, and collectors.
Recently, a number of California artists sued Christie’s and Sotheby’s for millions of dollars, alleging that the auction houses had conspired to conceal California ties to art transactions in order to avoid paying royalties to artists. In May of 2012, California District Court Judge Jacqueline Nguyen ruled that the Act violated the United States Constitution’s Commerce Clause, which affords the federal government with the power to regulate economic activity between states. On its face, the ruling, which dismissed the lawsuits with prejudice, appeared to be a victory for galleries everywhere and a defeat for artists.
But Judge Nguyen was subsequently transferred to the appellate court, and the case was reassigned to Judge Michael Fitzgerald to oversee post-appellate issues. The artists filed a motion to stay the application of the original order pending an appeal in order to allow continued enforcement of the Act. In an interesting decision, Judge Fitzgerald found that there was nothing to stay, because although Judge Nguyen’s decision dismissed the case between those litigants, she did not have the power to bind any other parties to the district court level decision that found that the Act is invalid.
As such, the Act remains in place and must be followed until an appellate court finds otherwise. So the battle continues, and we will continue to follow this interesting litigation.
If you would like further information, please write to Mike Bono at .
Michal Klepetar is the grand nephew of Richard Popper, a Jewish art collector who had a number of significant paintings seized by the Nazis. Many of the works — valued at over $50 million — are currently hanging in the Prague National Gallery, and it does not appear that Popper’s ownership of the works are being questioned. But Czech restitution law only allows direct relatives, such as wives and children, to claim such stolen art, and his pleadings to government officials and politicians have fallen on deaf ears.
As such, Klepetar is now trying his luck with the US courts, which in some cases have allowed Nazi art suits to proceed against foreign governments. Also of note is the fact that he is being represented by Edward Fagan, who has purchased an interest in the art works at issue and created an organization called Victims of Holocaust Art Theft for the specific purposes of the lawsuit.
Fagan is well known for obtaining a billion dollar settlement from Swiss banks for withholding accounts that belonged to Jewish families that perished under the Nazis. Fagan later was accused of neglect, fraud, misappropriation and other ethics charges and apparently has been disbarred by New Jersey and New York.
For more information, please write to Mike Bono at
A reputed Connecticut mobster, Robert Gentile, was arrested in February of illegally selling prescription pain killers and was subsequently arraigned on a number of weapons charges. But of interest are the comments made by Assistant U.S. Attorney John Durham in federal court in Connecticut that the FBI believes Gentile “had some involvement in connection with stolen property” related to the theft of masterworks from Isabella Stewart Gardner Museum in Boston in 1990.
But the comments have remained vague, as Durham said FBI agents have had “unproductive discussions” with Gentile about the theft but did not elaborate further. Gentile’s lawyer denies that his client is involved with the art theft and claims that prosecutors are “piling on” with the gun charges.
We shall continue to follow this story to see if anything further develops.
If you would like more information about this post, please write to Mike Bono a
The New York State Court of Appeals recently decided a dispute over the ownership of a 1,100 pound sculpture entitled The Cry, by Jacques Lipchitz, between the executor of the owner’s estate and the purchaser (who purchased the sculpture from a man claiming to have been gifted the sculpture from the owner in 1997). In July 2004, the executor of the estate claimed to have sold the sculpture to an art gallery, while the purchaser claimed to have purchased the sculpture from another man in September 2005. The executor and the purchaser each filed petitions asking the Surrogate’s Court to resolve the conflicting claims of ownership.
The Surrogate’s Court found in favor of the purchaser, noting that the decedent’s inter vivos gift of the sculpture was valid, and dismissed the executor’s petition. However, on appeal, the Appellate Division, First Department, reversed on the law, finding that the purchaser’s claim of ownership was barred by the statute of limitations because the sculpture was converted in 1998 when loaned to the French government.
In Mirivsh v. Mott, the Court of Appeals reversed again and found that the Surrogate’s Court correctly ruled in the purchaser’s favor because the purchaser established each of the elements of a valid inter vivos gift (intent, delivery and acceptance) by clear and convincing evidence, and, in any event, both parties had agreed by stipulation to allow the Surrogate’s Court would decide ownership of the sculpture on the merits. The court noted that the original owner’s intent to make a present transfer of “The Cry” was clear on the face of the gift instrument, which was in the form of a picture of the sculpture with a writing describing the piece and declaring that it was a gift (and did not necessarily require physical transfer or delivery of the sculpture itself).
Thanks to Joe Fusco for this post. If you have any questions or comments, please email Paul Clark at
Baron Ferenc Hatvany, a member of Hungary’s richest families, was a noted art collector who, like many others, was forced to relinquish his collection to the Nazi’s during World War II.
Most of the collection remains missing, but an interesting story has emerged involving a Viennese art historian, Burkhart List, who is going to lead an expedition into an old silver mine in the Erzgebirge Mountains, near the Czech-German border, where he believes over 150 works from the collection have been stashed — which could be worth in the neighborhood of $800 million.
But according to ARTINFO, controversy has emerged because List is not acting for the Hatvany family or its foundation. List claims he is not in it for the money, but skeptics claim he is acting with the son of a former lawyer for the Hatvanys, who believes he has a claim on any newly-discovered art.
It will be interesting to see how this tale plays out. If you would like more information, please write to Mike Bono at .
Robert Indiana’s “LOVE” sculpture is very well known. It is displayed in parks and museums throughout the world, and its image has been reproduced on postage stamps and the like.
Over the years, Indiana entered into a series of production agreements with John Gilbert, including a 2007 deal for the creation and production of a sculpture in Hindi script of the word love, which in Hindi, is “Prem.” Three versions of the sculpture were depicted in the contact, and contract also included “derivate works” of those three versions. The contract did not contain, however, any provision for a version with the English letters P,R,E and M, which a partner of Gilbert later designed.
Gilbert claims that he showed an English Prem version to Indiana, and that Indiana approved the design. He also alleged that Indiana signed — on a blank space on a page, and not the signature line — a certificate of authenticity to accompany the sale of such a version. However, Indiana later disputed that he approved the design, calling it a “monstrosity.” Further, within a few days of signing the certificate, he denied that he was the creator of that piece. Gilbert then filed suit, with the causes of action sounding in breach of contract, as he wanted to be able to sell the English Prem version as an authentic Indiana design.
Indiana eventually moved for summary judgment. The Court found that there was no dispute about the fact that the English Prem version was not included in terms of the contract. The Court also found that the Hindi version was completely different than the English version, could not be a derivative work, and therefore did not fit within the contract’s definition of “Licensed Works.”
The Court also rejected claims that Indiana’s actions modified the Contract, particularly because the contract had a “merger clause” that provided “The Agreement contains the entire understanding between the parties.” Neither an oral approval of the design or a signature of the Certificate of Authenticity, even if not in dispute, would serve to modify the written agreement.
The Court therefore dismissed the complaint — and thus the sculptures cannot be considered authentic Indiana works.
If you would like more information about this post, please write to Mike Bono at
The recent collapse of the Knoedler gallery has been well-documented. Today’s NYT had an interesting long form article on the collapse and the resulting litigation arising out of questions as to the provenance and authenticity of various pieces sold by the gallery.
For more information about this post, please contact Bob Cosgrove at .
