United States: Trends From NYCLA's Annual "Art Litigation And Dispute Resolution Institute"

Last Updated: November 5 2019
Article by William L. Charron and Megan Noh

Last Friday, the New York County Lawyers Association ("NYCLA") held its annual full-day conference covering developments in the art law world over the past year. The 2019 Institute provided information on a full spectrum of issues, from reputational concerns facing museums with respect to funding and governance, to the treatment of art by marital courts in an equitable distribution context.

Pryor Cashman's Art Law Group were key contributors to this year's successful program. Partner Megan E. Noh organized the event (in her role as Co-Chair of NYCLA's Art Law Committee), updated the audience about recent art authenticity litigation, and separately participated on a panel about contractual and intellectual property issues arising from commissions for conceptual and installation art works. Partner William L. Charron spoke on a panel about art title claims and the evolving application of the Holocaust Expropriated Art Recovery ("HEAR") Act.

Authenticity Litigation Update

Megan E. Noh presented the eagerly-anticipated "What's New in Art Law" panel, rounding up new, pending, and resolved art litigation since the last Institute. This year's litigation update addressed a variety of recurring art law themes, including inauthenticity, failure to deliver, loan defaults, and physical loss/damage.

A key takeaway from the authenticity update was continued deference to artists' foundations and expert committees with respect to inclusion in catalogues raisonné, following the dismissal of claims against the Agnes Martin Catalogue Raisonné committee, in which the Supreme Court of New York recognized that "whether ... inclusion or non-inclusion of any artwork has any bearing on a work's value ... [is] a function of the art marketplace, and it is not for the court to determine what the art market should or should not credit as reliable." Mayor Gallery Ltd. v. Agnes Martin Catalogue Raisonné LLC et al., No. 655489/2016.

Another trend to watch closely is the evolution of the diligence burden for sophisticated purchasers; in denying the Wildenstein Gallery's motion to dismiss claims against it by a purchaser, the Southern District noted that a purchaser does not have a duty to look beyond an esteemed seller's representations, and that the mere existence of a catalogue raisonné which excludes the work at issue is "not enough to put the purchaser on notice of fraud." Greenway II, LLC v. Wildenstein & Co., No. 1:19-cv-04093. Megan noted that the "duty to investigate" question will likely come into play in the California Superior Court case recently filed by Creative Artist Agency executive Ron Meyer in relation to a purported Rothko purchased by him in 2001, in which Plaintiff alleges he "learned [that the work is a forgery] for the first time in January 2019." Meyer v. Seidel et al., No. 19STCV36550.

Pryor Cashman's Art Law Group has broad experience in relation to art authenticity issues, including our work with scholarly expertise organizations, auction houses, and private collectors.

Navigating IP and Artists' Rights in Contracts for Conceptual/Installation Art

Megan also participated in a panel discussing proactive ways to address common "pressure points" between artists and collectors in the context of conceptual and installation artworks, including the artist's oversight of installation and/or mandate for contractors to be used for fabrication, the question of site-specificity, control over upkeep and conservation, and reproduction rights. Although these thorny questions are not new—most famously arising in the context of schematics and installation plans for works by Judd, Flavin and others purchased on paper by Italian collector Giuseppe Panza (the subject of a recent symposium at the Guggenheim)—judicial interpretation of the relevant legal rights continues to develop, as does the sophistication of the stakeholders in approaching these transactions. Disputes, like the claims regarding conservation being asserted in the Log Cabin case that is currently being litigated by Pryor Cashman (Noland v. Janssen et al, No. 2017-cv-05452), may in some cases be avoidable through contractual provisions that establish clear protocol and foster a cooperative relationship between artists and collectors.

Pryor Cashman's Art Law Group regularly assists in memorializing relationships between collectors and artists for unique, commissioned works, and in addressing questions that arise about copyright and artists' rights in the context of such commissions.

Art Title Claims: The HEAR Act and Laches

Bill Charron was part of a panel that addressed the scope and intent of the HEAR Act. In particular, Bill defended the result in a recent decision from the Second Circuit that allowed a museum to retain ownership of a Picasso painting under the doctrine of laches (Zuckerman v. Metropolitan Museum of Art, 928 F.3d 186). Characterizing laches as protecting a good faith, current property possessor's "due process" right to present evidence so as to rebut a challenge to title, Bill explained that neither the HEAR Act nor Supreme Court precedent supports the elimination of laches as a defense in World War II-era art restitution claims. Bill also explained that the HEAR Act provides a nationwide statute of limitations for the recovery of alleged Nazi-looted art, but it does not create a new federal claim for "duress" alleged to have been caused generally by the circumstances of World War II.

Pryor Cashman's Art Law Group has litigated, and is currently litigating, precedential cases involving claims of title to art—including both World War II-era claims and those resulting from unrelated circumstances—and regularly counsels current owners and potential claimants with respect to this developing jurisprudence.

For more information, please contact your Pryor Cashman attorney.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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