Creativity, Ownership Rights and Greed Collide in Art Law Cases

Apr 19, 2011

By Krystina Steffen, staff In Good Practice writer – April 19, 2011

How the law creates, regulates and strengthens art is a layer of the art world that is rarely shown. From the artists themselves to buyers and sellers, museum directors and claimants in court cases, the intersection of the law and art is as riveting as art itself. Art and cultural property involve legal, emotional and international challenges.

Fair use is the hottest and most contentious legal issue right now in art. The metamorphosis of photographs and art from one medium into something else through computer programs and videos begs the question: is the art truly original or infringing on its predecessor? Acclaimed photographer and painter Richard Prince, along with his main gallery dealer, Larry Gagosian, were recently charged with copyright infringement. Part of Richard Prince’s claim to fame from the 1970s to today is re-photography, whereby he takes the work of others and manipulates them to develop his own artwork. In the copyright infringement case of Cariou v. Prince, Gagosian, Rizzoli in the U.S. District Court, the defendants were found guilty of taking photographs from Cariou’s “Yes, Rasta” series and not transforming them enough to make a unique work of art. [1] Prince’s claims of fair use were deemed bogus by the judge.

Title 17, Section 107 of the U.S. copyright code outlines the factors for fair use. The four factors are: 1) “the purpose and character of the use (is it for commercial purposes or non-profit); 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and, 4) the effect of the use upon the potential market for, or value of, the copyrighted work.” [2]

At a minimum, Prince, Gagosian and the book publisher Rizzoli should have obtained licenses and permission rights if they wanted to use Cariou’s photographs, the judge asserted. Prince’s painting of the “Yes, Rasta” photograph just slapped a guitar on the Rastafarian and partially covered his face with blue dabs of paint as part of his “Canal Zone” series of paintings. [3] All of Prince’s fellow defendants were found to be “contributory infringers…and the financial benefit of the infringing is self-evident”, the judge said. [4]

Litigation like this is important to keep the standards of art at a high caliber. Appropriation art, collages and other art mash-ups are valid forms of art, and can be masterpieces in their own right. But if the original piece is still clearly evident and pushes the message of the painting, it can fall short and be tested by fair use and copyright laws.

The art business is a constantly evolving, international, $9 billion-plus revenue industry. [5] As artists, museums and patrons position themselves to enjoy the creativity and financial success, the complexity of the art world shows its ugly side from time to time. Many courtroom battles involve the question of ownership. For example, niche art law firms, government institutions and heirs are avidly trying to find objects and artwork that were confiscated by the Nazis or stolen during the WWII turmoil and the aftermath. The pieces in question total many millions of dollars.

In March, the Getty Museum returned a painting that was stolen by the Nazis from Jacques Goudstikker, a Dutch-Jewish art dealer. [6] When the Nazis invaded Holland in 1940, much of Goudstikker’s collection was taken for the personal collection of Hermann Goering, the Commander-in-Chief of the German Air Force. The Getty recently returned the painting to Goudstikker’s heir. “It is always encouraging to see an important cultural institution like the Getty Museum decide to do the right thing for Holocaust victims and their heirs,” said Marie Von Saher, Goudstikker’s daughter-in-law. [7] A total of 45 pieces from Goudstikker’s collection were recently exhibited at the Contemporary Jewish Museum in San Francisco as part of the “Reclaimed: Paintings From the Collection of Jacques Goudstikker” national tour.

Other pillaged artwork is not so easy to return to the rightful heirs and becomes subject to legal action. Lawyers wrangle over who has sufficient proof of initial ownership, the statute of limitations that vary with each state and abroad, and getting government institutions to help in art recovery missions. Some scenarios occur where museums are allowed to retain the right to display an artwork but the true owner retains all the ownership rights.

Museums and educational institutions have complex issues of fiduciary and stakeholder responsibility. In 2009, a pre-emptive lawsuit by Yale University against an heir of Ivan Morozov, an acclaimed Russian art collector, examined who was the rightful owner of Van Gogh’s “The Night Café” that Yale had in its collection. [8] The heir, Pierre Konowaloff, alleged Yale wrongfully acquired the painting. Yale received the painting from a donor who had bought “The Night Café” when Soviet authorities sold the painting after the Russian Civil War. Konowaloff alleged that the Soviets illegally nationalized the painting.

“The prominence of Yale’s ownership of “The Night Café” had been extraordinary, owing primarily to the fact that it is one of the most important paintings in the history of art,” Yale’s claim states. [9] “Under these circumstances, the fact that Konowaloff and his predecessors-in-interest failed until 2008 to assert to Yale the possibility of a claim to the painting squarely implicates the purposes of statutes of limitations in this context: to permit those to whom property has been bequeathed to enjoy quiet title by weeding out stale claims and punishing non-diligent claimants for sleeping on their putative rights.”

Konowaloff and his lawyer Allan Gerson, interestingly enough a 1976 Yale graduate, also have filed suit in a separate case to get back a Paul Cezanne painting, “Madame Cezanne in the Conservatory”, that the Metropolitan Museum of Art has in its collection. Konowaloff feels it is also the property of his great-grandfather.

The Metropolitan Museum is also involved in a snafu that Larry Gagosian and the Gagosian Gallery are under fire for. British art collector Robert Wylde bought a painting through Gagosian by Mark Tansey called “The Innocent Eye Test”. The painting mocks the art world as it depicts stately gentlemen showing off a realist painting of cows to a live cow. [10] Apparently Gagosian believed that the owner of the painting had a clear title to it. He had no idea that the Metropolitan Museum of Art owned 31 percent of the painting and was due to eventually be gifted to the museum by Jan and Charles Cowles. [11]

Charles Cowles told The New York Times that the dispute was his mistake. When the museum returned the painting to his apartment he said, “I didn’t even think about whether the Met owned part of it or not. And one day I saw it on the wall and thought, ‘Hey, I could use money’ and so I decided to sell it. And now it’s a big mess.” [12]

Ah, the perils of money, fame, and the trials and tribulations of the art world. And the riveting true-tale dramas of the FBI’s art crime team and international thieves haven’t even been discussed. Emotions, finances, and creativity spur the art market further through the modern era. And there is still room for better sales practices and gallery standards in art commerce, as well as artists truly creating something original whose authenticity will never be questioned, only celebrated.




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