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Art Law

By: Roger P. Durkin, Esq.

Art law involves legal issues surrounding the creation, protection, distribution, and disposition of visual art otherwise known as “pictorial, graphic, and sculptural works”(PIGS) under Section 102 of the Federal Copyright Act of 1976 (17 U.S.C. § 102).

We provide counsel in transactions among fine artists, galleries, dealers, and collectors. We negotiate

and draft fine art commission agreements and help clients navigate laws that govern prints and fine art multiples. We advise clients on copyright and trademark issues. Art law is also about dealers and collectors buying, selling, and transferring the physical media that embodies the artist's work. Accordingly, art law attorneys understand trusts, estates, applicable taxation issues, Uniform Commercial Code secured transactions, and international treaties and patrimony laws concerning the illicit trade in art, cultural property, ivory, and endangered animal species.

It is the federal crime of criminal counterfeiting of a copyright if a person manufactures clothing products utilizing a copyright character (like Bill Cosby's copyrighted Fat Albert character). This is sometimes called creating designer knockoffs. In a case in which we were involved, the perpetrator defendant was convicted and sentenced to two years in federal prison.

Be careful bringing souvenirs into the U.S. or other countries. A man entering U.S. Custom's inspection declared his four fake Rolex watches he had purchased in Hong Kong. The watches were seized and he was charged with importation of counterfeit goods. The fine and penalty is based on a multiple of the manufacturer's suggested retail price. The Stop Counterfeiting in Manufactured Goods Act of 2006, part of the federal criminal code, prohibits the trafficking in counterfeit goods and services including trafficking in labels or similar packaging of any type or nature, with knowledge that a counterfeit mark has been applied to such labels or packaging, the use of which is likely to cause confusion, to cause mistake, or to deceive. The penalties for violating these and other fraud-related laws may include up to five years in prison and a fine of up to $250,000.

Any time something becomes valuable, someone will make a similar one. Counterfeiting is rampant around the world.

 

We had a case involving a painting by Amedeo Modigliani (Italian/French 1884-1920). He often painted his beloved girlfriend Jeanne Hébuterne in an awkward stretched-neck pose. Modigliani died penniless and destitute. His beloved, distraught over his death, jumped out of a five story building. Their daughter, Jeanne Modigliani (1918-1984) claimed to have inherited the Modigliani copyright (French Droit Moral). Christian Parisot then claimed he inherit the droit moral (which expired in 1990) from her. Parisot published a Catalogue Raisonne of Modigliani works and created the Modigliani Institut Archives Legales Paris-Rome. He claimed to be the world's leading authority on authenticating Modigliani artwork. We worked for nearly three months to detect that the fact that the Modigliani was a fake as was the material in Parisot's Catalog Raisonne. Eventually, in 2008, Christian Parisot was sentenced by a Paris Court to two years in prison with 16 months suspended, and fined $12,000.

Problems with Art Authentication

There is a general acquiesce in the art appraisal world that authenticating a work of art can only be accomplished by art experts. There are hundreds of art experts, primarily art historians and museum curators in person and in published books who claim to be capable of using techniques like ultraviolet fluorescence and infrared analysis, carbon dating, X-ray to look at components of the artwork, and the use of thermoluminescence testing to detect pottery age wherein older pottery has greater thermoluminescence when heated. These methods and techniques do discover many attributes of a work of art including detecting a fake by uncovering modern paint pigment on a 16th century painting (zinc white circa late 19th century) or X-rays detecting an second modern under-painting. A study of the provenance or history of ownership, i.e. chain of title is the most reasonable method of authenticating a signature on a baseball or an artwork. In the Modigliani case, his works were not counterfeited until the mid 1960s, therefore if one could trace the chain of ownership back to the 1920s or 1930s; it is more likely by Modigliani than by a forger. Traditionally, an artwork found in an artist's “Catalogue Raisonne” has been a key to confirming the authenticity, and a basis of the artwork's value. Omission from an artist's catalogue raisonné can prove fatal to any potential artwork resale. However, catalogue raisonnés alone may not be sufficient as it may itself contain forgeries.

Remember, that the dealer's issuance of a Certificate of Authenticity is not worth the paper it is printed on without a linked history of title!

We advise clients on all matters related to the acquisition, casualty insurance, charitable donation, and the disposition of fine art. We have provided expertise to buyers and sellers in disputes concerning authenticity and ownership of works of antiques and fine art.

We advised in an IRS dispute involving the executor of an estate charged with $2.5 million undervaluation of a painting. We advised a family in connection with plans to gift art works to the Holocaust Museum, and another a donation to a historical museum. We represented buyers in a dispute involving multi-million dollar purchase of antiques and art relative to the New York Arts and Cultural Affairs Law. We have assisted owners of artworks insurance coverage disputes in casualty insurance claims and we have provided appraisal expertise to insurance companies defending other claims, and assisted numerous clients in the sale or disposition of their fine art and antiques.

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