In August 2023, the New York District Attorney’s (NYDA) Antiquities Trafficking Unit, which specializes in investigating looted artifacts, seized a headless statue valued at $20 million from the Cleveland Museum of Art (CMA) under a search warrant issued by a New York court. The NYDA announced that the seizure was linked to a criminal investigation targeting a smuggling ring that trafficked antiquities looted from Turkey through Manhattan. It further asserted that since the alleged traffickers were primarily based in New York, it provided them with the legal authority to seize the statue from another state, deeming New York as the central hub of the conspiracy.…

Continue Reading Titleless Tales of the Headless

In 1966, an ancient bronze bust found its way to the Worcester Art Museum in Massachusetts. Believed to depict the daughter of the Roman emperor, Marcus Aurelius, it was titled “Portrait of a Lady (A Daughter of Marcus Aurelius?),” and sat on display in its new home for decades – until now.[1]…

Continue Reading Busted: Manhattan Prosecutors Seize an Ancient Roman Bust from the Worcester Art Museum

On June 8, 2023, the Supreme Court in a unanimous decision held that a trademark claim concerning “a squeaky, chewable dog toy designed to look like a bottle of Jack Daniels whiskey” which, as a play on words, turns the words “Jack Daniels” into “Bad Spaniels” and the descriptive phrase “Old No. 7 Brand Tennessee Sour Mash Whiskey” into “The Old No. 2 On Your Tennessee Carpet” does not receive special First Amendment treatment where the accused infringer used the trademarks at issue to designate the source of its own goods and that, with respect to a Lanham Act dilution by tarnishment claim, “[t]he use of a mark does not count as noncommercial just because it parodies, or otherwise comments on, another’s products.”[1]…

Continue Reading Supreme Court Rules “That Dog Don’t Hunt”: Bad Spaniels Toy’s Use of JACK DANIELS Marks is a Poor Parody and Dilution Act Applies

On May 18, 2023, the United States Supreme Court ruled in favor of famed rock photographer Lynn Goldsmith against the Andy Warhol Foundation for the Visual Arts, Inc.’s (AWF),[1] in a long-awaited decision impacting fair use under Section 107(1) of the Copyright Act. The opinion written by Justice Sotomayor, in which Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett and Jackson joined, held that the “purpose and character” of AWF’s commercial use of Warhol’s portraits of Prince shared the same commercial purpose of the original photograph taken by Ms. Goldsmith and, as a result, did not constitute fair use.[2] The Court’s decision affirmed the ruling of the Second Circuit Court of Appeals, which held that the Warhol work was derivative of the original, and noted that “the new expression may be relevant to whether a copying use has a sufficiently distinct purpose or character” but that factor was not dispositive by itself.[3] The Court found that the Warhol Foundation’s licensing of the Orange Prince to Conde Nast did not have a sufficiently different purpose as the Goldsmith photograph because both were “portraits of Prince used in magazines to illustrate stories about Prince.”[4]…

Continue Reading Supreme Court Finds Warhol’s Commercial Licensing of “Orange Prince” to Vanity Fair Is Not Fair Use and Infringes Goldsmith’s Famed Rock Photo

The appreciation of works of art is subjective, and rightfully so as the experience of viewing art, and what it makes one feel is personal. This seems to guarantee that no artist or piece is left out of the realm of consumption, so long as there is a person who can appreciate the expressive work.…

Continue Reading To Be, or Not to Be? Considerations for A.I.- Generated Art

The assumption that artists love credit is challenged when an artist appears to repudiate their authorship. Sometimes repudiation arises from personal animus while in other instances an artist might feel that their work is no longer “up to snuff.”[1] In some extreme circumstances, artists can be involuntarily thrust into a claim to repudiate their alleged authorship, which happened in the case of Fletcher v. Doig. [2]…

Continue Reading “Not My Work”: When Artists Dispute Authorship

The strength of the US dollar against the British pound – at present, the pound has dropped nearly 18% since the beginning of 2022 – would appear to make the purchase of art and other cultural property in the UK and Europe far less expensive for Americans. But the tumultuous state of the world has thrown a multitude of wrenches into British art exports to the US. The (not over yet) pandemic, (nor over yet) Brexit crisis, growing inflation, expanding regulations to prevent anti-money laundering, frustrating global supply chain backups and other issues have made it maddeningly difficult for US-based buyers to acquire art from UK sellers. The effect is thwarting major purchases.
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Continue Reading For US Art Collectors Shopping in the UK, the Dollar’s Strength is Deceiving

The artworks stolen by the Nazis are the last prisoners of World War II.

 – Ronald Lauder, Woman in Gold

Ferdinand Bloch-Bauer was a wealthy sugar magnate in Vienna, Austria where his six Gustav Klimt paintings were housed. His wife, Adele Bloch-Bauer, was the subject of two of the paintings. On March 12, 1938, the Nazis invaded and claimed to annex Austria. Ferdinand, who was Jewish and had supported efforts to resist annexation, fled the country ahead of the Nazis, ultimately settling in Zurich. In his absence, the Nazis took over his home and seized his artworks, which included the Klimt paintings. Adele Bloch-Bauer I is one of them and ended up at the Austrian Gallery.…

Continue Reading NY Museums Required to Label the Last Prisoners of World War II

When Christie’s Auction House first entered the secondary art market of mainland China in 2005, it licensed its brand to a local auction house and received a total of RMB 97,000,000 (roughly $12,100,000) for its inaugural sale.[1] With eight years of experience in this nascent market, Christie’s started its independent business by establishing a branch in Shanghai and obtaining an auction license shortly afterward. Early March this year, Christie’s realized a total of RMB 222,030,200 (roughly $35,000,000) in its inaugural sale, selling 95% by lot and 90% by value, at its new gallery, BUND ONE, a century-old historical building in the heart of Shanghai.[2]…
Continue Reading Unroll the Scroll Painting: Inside the Chinese Art Market and Its Regulatory Landscape

Everything is being tokenized these days, including art, games, collectibles and much more. The record prices being fetched have created an NFT frenzy. This distribution model has created a new channel for monetization of creative IP. Given some of the unique aspects of NFTs, IP owners need to rethink their IP protection and licensing strategies. IP protection strategies should include specific protection relating to NFTs. Due to some of the unique aspects of NFTs, various new considerations need to be addressed when licensing IP. NFT creators need to be mindful of potential infringement issues when using third party IP and should also consider IP protection for their original creations.
Continue Reading NFTs and Intellectual Property: What IP Owners and NFT Creators Need to Know