The Art Law Podcast

Katie and Steve speak (again) with digital art and NFT enthusiast Jason Bailey about the sudden rise of NFTs in the art world, what they really are, why they have value, and who is interested in them and why.

Katie and Steve finally tackle the evolving area of fair use as a defense to copyright infringement with Luke Nikas, attorney for the Andy Warhol Foundation and Partner at Quinn Emanuel. Luke represents the Foundation in its ongoing litigation with photographer Lynn Goldsmith about Warhol’s use of Goldsmith’s photograph of the artist Prince as an artist study for a series of screen prints. Goldsmith claims Warhol infringed her copyright in the original photograph. The Warhol Foundation says Warhol’s use of the photograph is fair use under the Copyright Act. The trial court agreed with the Warhol Foundation and the Second Circuit recently agreed with Goldsmith. Katie, Steve, and Luke discuss this complicated area of law and how artists navigate (or don’t) around it.

Steve and Katie speak with legal scholar Mira Sundara Rajan regarding the international landscape for artist moral rights protections, including the adoption of moral rights laws in the developing world, common law versus civil law jurisdictions, and the connection between moral rights and cultural heritage concerns. Steve, Katie, and Mira dive into two case studies: the Indian case Amar Nath Sehgal v. Union of India (2005) involving government removal of and damage to famous murals from a government building and the more recent controversy surrounding the removal of the Picasso stone murals on the Y-Block government buildings in Oslo, Norway.

Steve and Katie speak with British art lawyer and General Counsel of Phillips auction house Martin Wilson about European anti-money laundering regulations applicable to art market participants and their recent implementation in the UK. Generally, these regulations require art dealers, galleries, and auction houses to register with the government and undertake due diligence on every art transaction over a certain threshold amount, including with respect to the identity of all ultimate beneficial owners of the transacting parties. Steve, Katie, and Martin discuss the practicalities of compliance, the general secrecy of the art market and the reasoning behind such regulations, and Martin’s recently published book, Art Law and the Business of Art. Steve and Katie also discuss the anti-money laundering regulatory environment in the United States as it applies to the art market and what may be just around the corner.

Steve and Katie end 2020 with a few updates on past podcast episode topics, including 5Pointz and moral rights litigation, the Painted Bride mosaic mural battle, deaccessioning in Baltimore, and pandemic related litigation. We look forward to many more interesting topics in 2021! Resources: https://news.artnet.com/art-world/5pointz-additional-2m-attorney-fees-1927310 https://www.inquirer.com/arts/isaiah-zagar-murals-philadelphia-painted-bride-court-case-20201022.html https://whyy.org/articles/isaiah-zagars-painted-bride-mosaic-could-survive-in-new-plan-for-old-city-site/ https://www.theartnewspaper.com/news/aamd-sends-a-warning-note-to-museum-directors-on-deaccessioning https://www.artnews.com/art-news/news/baltimore-museum-of-art-deaccession-called-off-sothebys-1234575295/ https://www.latimes.com/entertainment-arts/story/2020-10-29/baltimore-museum-art-deaccession-sale-warhol-marden https://www.nytimes.com/2020/10/30/arts/design/baltimore-museum-brooklyn-art-auction-sothebys.html https://www.washingt

Steve and Katie discuss the recent deaccessioning controversies at the Brooklyn Museum, Baltimore Museum of Art, and Everson Museum of Art in light of the ethical guidelines, new AAMD guidance, and the economic and social climate. They also discuss the recent postponement of the Philip Guston retrospective at the National Gallery, Tate Modern, Museum of Fine Arts Houston, and Museum of Fine Arts Boston due to its depiction of white nationalism and the criticisms of that decision. Please note there have been developments on all these topics since our recording, so please see the resources links for up to date information. Resources: AAMD: https://aamd.org/for-the-media/press-release/aamd-board-of-trustees-approves-resolution-to-provide-additional https://www.theartnewspaper.com/news/aamd-sends-a-warning-note-to-museum-directors-on-deaccessioning Brooklyn Museum: https://www.nytimes.com/2020/09/16/arts/design/brooklyn-museum-sale-christies-coronavirus.html https://www.theartnewspaper.com/news/brooklyn-museu

Steve and Katie speak with old master art dealer and scholar Robert Simon about his discovery of the painting Salvator Mundi attributed to Leonardo da Vinci and sold by Christie’s in 2017 for almost half a billion dollars. They discuss Simon’s purchase of the painting from an obscure New Orleans auction house, the painting’s painstaking restoration and scholarly review, and what we know and don’t know about its history over the last 500 years.   Resources: https://www.robertsimon.com/leonardos-salvator-mundi https://salvatormundirevisited.com/ https://www.nationalgallery.org.uk/exhibitions/past/leonardo-da-vinci-painter-at-the-court-of-milan https://www.christies.com/lotfinder/Lot/leonardo-da-vinci-1452-1519-salvator-mundi-6110563-details.aspx

We are re-releasing our podcast with journalist and author Ben Lewis in anticipation of our forthcoming discussion with Robert Simon. We talked with Ben in depth about his book, The Last Leonardo: The Secret Lives of the World’s Most Expensive Painting, about the history and ultimate sale by Christie’s auction house in November 2017 for just over $450.3 million of the painting Salvator Mundi attributed to Leonardo Da Vinci. Our next episode with Robert Simon will revisit this story from a different perspective. Resources: https://www.amazon.com/Last-Leonardo-Secret-Expensive-Painting/dp/1984819259 https://www.christies.com/features/Leonardo-and-Post-War-results-New-York-8729-3.aspx https://www.theguardian.com/books/2019/apr/17/last-leonardo-secret-lives-worlds-most-expensive-painting-ben-lewis-review https://www.thetimes.co.uk/article/the-last-leonardo-by-ben-lewis-review-is-salvator-mundi-really-worth-450-million-vqvk2gjx5 https://www.nytimes.com/2019/03/30/arts/design/salvator-mundi-louvre-abu-dhabi.html  

Katie and Steve speak with Michael Weinberg, the Executive Director of the Engelberg Center of Innovation Law and Policy at NYU Law School, about 3D digitization of gallery, library, archive and museum (“GLAM”) institution collections, the goals and motivations for such projects, and how digitization implicates (or doesn’t) rightsholders.  They also discuss the open access framework in which these digitization projects occur, the difference between 2D and 3D copying, and the legal and ethical frameworks at play. Resources: https://glam3d.org/ https://www.law.nyu.edu/centers/engelberg https://www.law.nyu.edu/centers/engelberg/team/weinberg https://law.justia.com/cases/federal/district-courts/FSupp2/25/421/2325910/

Katie and Steve speak with Jay Sanders, Executive Director and Chief Curator of Artists Space, a vanguard artist-centered arts nonprofit, founded in 1972 and located in New York City, about the devastating impact of the pandemic shutdown on small arts nonprofits, as well as the inspiration and community being cultivated in this moment of hardship. Resources: https://artistsspace.org/about https://www.americansforthearts.org/by-topic/disaster-preparedness/the-economic-impact-of-coronavirus-on-the-arts-and-culture-sector https://www.artnews.com/art-news/news/arts-organizations-coronavirus-losses-report-1202687488/ https://hyperallergic.com/565254/covid-19-unesco-icom-study/?utm_medium=email&utm_campaign=D052120&utm_content=D052120+CID_5b52f14555a5e4874a6468534c7b8eb5&utm_source=HyperallergicNewsletter&utm_term=13%2520of%2520Museums%2520Worldwide%2520May%2520Close%2520Permanently%2520Due%2520to%2520COVID-19%2520Studies%2520Say

Katie and Steve welcome back to the podcast museum director, art commentator, and art historian Max Anderson to discuss what art museums (now closed) are dealing with during the Covid-19 crisis in terms of mission, funding, audience engagement and an uncertain future.  They discuss structural issues and practices pre-existing the pandemic that put pressure on museums’ stated missions and appeal, as well as potential shifts in focus and priority that may come out of this current moment of reorganization and prioritization. This is the first of several episodes of the Art Law Podcast discussing the impact of the pandemic and its accompanying shut downs on the art world. Resources: http://www.maxwellanderson.com/about http://docplayer.net/15254796-Metrics-of-success-in-art-museums.html   https://aamd.org/our-members/from-the-field/museums-and-covid-19 https://aamd.org/for-the-media/press-release/aamd-board-of-trustees-approves-resolution-to-provide-additional https://www.washingtonpost.com/entertainment/museums

In this bonus episode, Steve analyzes the recent Second Circuit decision affirming the 2018 decision awarding $6.75 million to the artists of 5Pointz, whose works were whitewashed and torn down by the building’s owner in 2013.  To put this important decision into a broader context, we have re-released our April 2018 episode on 5Pointz, where we discuss the district court case in which the aerosol artists asserted violations of their moral rights under the Visual Artist Rights Act, the U.S. moral rights statute.  In that episode, Steve and Katie discuss the origin and contours of moral rights, how they fit into U.S. copyright law, the story of 5Pointz and the laws around street art and graffiti. They are joined by famous aerosol artist Jonathan Cohen (Meres One), 5Pointz event planner and artist representative Marie Cecile Flageul, and Renee Vara, the artists’ expert in the 5Pointz trial.

This month, we are updating and rereleasing one of our most popular episodes, Art of the Chase: Inside Art Auctions.  In this episode, we take a close look at art auctions – how they work, their place in the art market and the rules and regulations that confine/define them.  Auctions at Sotheby’s and Christie’s now regularly net tens and sometimes hundreds of millions of dollars for a single work.  Christie’s sold Leonardo da Vinci’s Salvator Mundi painting for $450 million in 2017, still, by far, the highest price ever garnered by a piece of art at auction.  At the same time, much about the auction process remains secret.  The identity of the buyer and seller is often known only to the auction house, and the reserve price (below which an artwork will not be sold) is known by the auctioneer but not the bidders.  While the auctioneer may not sell a work of art below its reserve price, it can bid on the work below the reserve to get the auction going.  Steve and Katie discuss these issues and others having to d

Steve and Katie discuss two recent art world controversies involving small, local nonprofits seeking to raise money through asset divestment.  The di Rosa Center for Contemporary Art in Napa Valley is attempting to deaccession most of its permanent collection of Bay Area art works in the face of vocal art world opposition. In Philadelphia, the proposed sale of the Painted Bride Art Center building by the organization’s board, including its one of a kind mosaic mural façade, has raised public protest and legal challenge.  Both entities claim they need funds to continue their mission, while critics say the act of selling off the assets at issue in each case directly undercuts such mission.   Resources:   di Rosa Center for Contemporary Art:   http://www.dirosaart.org/history/ https://datebook.sfchronicle.com/art-exhibits/napas-di-rosa-center-to-sell-most-of-its-fabled-art-collection https://nonprofitquarterly.org/napa-museum-plan-to-deaccession-art-works-raises-art-communitys-ire/ http://www.artnews.com/2019/0

Steve and Katie have a wide ranging conversation with art historian and former lawyer, Joan Kee, about the topic of her new book, Models of Integrity: Art and Law in Post-Sixties America. Their conversation probes artists’ embrace and rejection of legal structures in contemporary America, as well as artistic indifference about and dependence on the law. Resources: https://lsa.umich.edu/histart/people/faculty/jkee.html https://www.amazon.com/Models-Integrity-Art-Post-Sixties-America/dp/0520299388 https://christojeanneclaude.net/artworks/realized-projects http://www.suzannelacy.com/early-works  

CORRECTION: After the recording of this podcast, the San Francisco School Board, in the face of community protest, reconsidered its decision to remove the George Washington murals from George Washington High School and will instead cover them. Against the backdrop of global museums distancing themselves from the Sackler name, two highly controversial Whitney Biennials involving activist calls for the destruction and removal of an artwork and, more recently, calls for the resignation of a Board member who made a fortune building a network of defense equipment companies, and numerous other controversies in the United States about the identity of board members, museum donors and artists, Steve and Katie speak with Max Anderson about controversial board members, donors and works of art.  Max is currently the President of the Souls Grown Deep Foundation and was previously the Director of the Whitney Museum of Art and the Dallas Museum, among other leading museum director roles. About Max Anderson:  http://www.max

Steve and Katie talk about and compare two recent Holocaust-era art cases decided in New York, one in state court on summary judgment and one in federal court on a motion to dismiss grounds.  Both cases involve the claims of heirs to recover artwork that left the hands of Jewish owners persecuted by the Nazis, but they otherwise greatly differ. Resources: Reif v. Nagy, Index No. 161799:15 (First Dep’t July 9, 2019) http://artlawpodcast.com/wp-content/uploads/2019/08/Reif-v.-Nagy-Index-No.-16179915-First-Dep’t-July-9-2019.pdf Zuckerman v. The Metropolitan Museum of Art, No. 18-634 (2d Cir. 2019) http://artlawpodcast.com/wp-content/uploads/2019/08/Zuckerman-v.-The-M etropolitan-Museum-of-Art-No.-18-634-2d-Cir.-2019.pdf http://artlawpodcast.com/wp-content/uploads/2019/08/Brief-and-Special-Appendix-for-Plaintiff-Apellant-Dkt.-51-May-25- 2018.pdf http://artlawpodcast.com/wp-content/uploads/2019/08/Brief-for-Defendant-Appellee-Dkt.-102-Jul-20-2018.pdf http://artlawpodcast.com/wp-content/uploads/2019/08/Reply-

Katie and Steve talk with Ben Lewis, author of the new book, The Last Leonardo: The Secret Lives of the World’s Most Expensive Painting, about the history and ultimate sale by Christie’s auction house in November 2017 of the painting Salvator Mundi which they attribute to Leonardo Da Vinci for just over $450.3 million. Resources: https://www.amazon.com/Last-Leonardo-Secret-Expensive-Painting/dp/1984819259 https://www.christies.com/features/Leonardo-and-Post-War-results-New-York-8729-3.aspx https://www.theguardian.com/books/2019/apr/17/last-leonardo-secret-lives-worlds-most-expensive-painting-ben-lewis-review https://www.thetimes.co.uk/article/the-last-leonardo-by-ben-lewis-review-is-salvator-mundi-really-worth-450-million-vqvk2gjx5 https://www.nytimes.com/2019/03/30/arts/design/salvator-mundi-louvre-abu-dhabi.html  

Katie and Steve speak with Laura Patten and Michael Shepard about financial crimes, including money laundering, involving art.  They discuss high profile examples of art-related financial crime, the reality and challenges of compliance for galleries, dealers and other art market participants, and the regulatory landscape in the U.S. and Europe. Laura formerly worked with the CIA and FBI on high stakes art crime investigations.  Michael has worked for years on anti-money laundering and financial crimes investigations and programs.  Both now work with Deloitte’s art and finance initiative and financial crimes practice. Resources: https://www2.deloitte.com/us/en/profiles/lpatten.html https://www2.deloitte.com/us/en/profiles/mshepard.html   https://www.natlawreview.com/article/art-and-money-laundering https://www.theartnewspaper.com/news/us-anti-money-laundering-bill-could-reappear-early-next-year https://www.natlawreview.com/article/new-application-anti-money-laundering-rules-to-art-transactions   http://respon

In this episode of the podcast, Steve and Katie are in conversation with Jason Bailey, the founder of the Artnome blog and host of the Dank Rares blockchain art podcast about technology and fine art.  With a background in art and tech, Jason is one of the foremost authorities on art and technology.  The conversation with Jason is wide-ranging from blockchain, provenance, smart contracts, digital art, cryptocurrency, blockchain-driven auctions, privacy, and generative art. Resources: https://www.artnome.com/ http://dankrares.com/ https://www.christies.com/exhibitions/2018/art-and-tech-summit-exploring-blockchain https://superrare.co/ https://www.cryptokitties.co/ https://portion.io/ https://hyperallergic.com/468060/christies-sells-ai-generated-art-for-432500-as-controversy-swirls-over-creators-use-of-copied-code/ http://rarepepedirectory.com/ https://www.theparisreview.org/blog/2018/01/23/much-pepe-scenes-first-rare-digital-art-auction/