Massachusetts Appeals Court Justice, Joseph A. Trainor, granted a motion for an injunction on the sale of important works of the Berkshire Museum.  The auction was to be hosted by Sotheby’s this week. The controversial injunction was entered two weeks after Judge John A. Agostini of Massachusetts’ Superior Court held that the Board of Trustee’s of the Berkshire Museum was permitted to pursue its plan to raise $50 M through the sale of art.

Justice Trainor entered his decision after the Massachusetts Attorney General, Maura Healey, filed an appeal three days before the scheduled auction. The Massachusetts Attorney General based her last minute appeal on the fact that the lower court did not consider, among other things, that the planned deaccession of important works would violate the museum board’s duties under its museum charter.

The museum’s controversial sale was to include the sale of two famous Norman Rockwell paintings – Shuffleton’s Barbershop and Shaftesbury Blacksmith Shop. Sotheby’s announced that it was disappointed that the Massachusetts Attorney General had decided to appeal, and that Justice Trainor entered the injunction.  The Board of Trustees of the Berkshire Museum has been fighting Margaret Rockwell, who represents the family of Norman Rockwell as well as other dissatisfied museum members.

In recent art world news, and further to our recent blog post on the Met Museum’s return to authorities of an ancient artifact on loan due to concerns that it had been looted from a storage area during the civil war in Lebanon, the prior owners of the 2,300 year old marble sculpture of a bull’s head have since dropped a federal lawsuit seeking to prevent the Manhattan district attorney’s office from returning the artifact to the Republic of Lebanon.  The prior owners, a couple from Colorado, had asserted that they bought the artifact in good faith in excess of $1 million in 1996, but after having been “presented with incontrovertible evidence that the bull’s head was stolen from Lebanon, the [couple] believed it was in everyone’s best interest to withdraw their claim to the bull’s head and allow its repatriation to Lebanon.”

In a latest twist, however, prosecutors are now pursuing the return of a second ancient artifact, an archaic marble torso of a calf bearer, to Lebanon that was discovered while they were reviewing a profile of the couple in the June 1998 issue of House & Garden magazine.  The artifact was later sold by the art collector couple to a collector in New York.  The district attorney’s office has obtained a warrant to seize the artifact.

The couple had also sold the bull’s head sculpture to the same collector in New York who in turn loaned it to the Met Museum.  After learning about the provenance dispute, the collector in New York requested the couple to take back the work and refund his money.

The couple had sued the district attorney’s office and the Lebanese government this summer claiming that they had clear title to the bull’s head artifact and demanding its return.  The district attorney’s office, however, produced evidence that the antiquity had been “discovered during a state-sponsored excavation in 1967 at the ancient Temple of Eshmun in Sidon, Lebanon.  The [work] had been put in storage after its discovery and then was stolen in the summer of 1981 during the Lebanese civil war.”  The artifact later came into the possession of Robin Symes, a British antiquities dealer, who had sold it to the couple.

The district attorney’s office has said that the investigation continues even though the bull’s head will be released without the couple or any other individuals being the subject of criminal charges.  Manhattan District Attorney Cyrus R. Vance, Jr. issued a statement this week that said:

The art world must acknowledge that stolen antiquities are not simply collectible commercial property, but evidence of cultural crimes committed around the world.  These important historical relics must be treated with caution and care, and galleries, auction houses, museums, and individual collectors must be willing to conduct proper due diligence to ensure that an item has not been unlawfully acquired.”

This latest discovered calf bearer ancient artifact passed through the same parties as the bull’s head sculpture.  The artifact had been excavated at the ancient Temple of Eshmun and was stolen from Lebanon, according to prosecutors.  It was then sold by Mr. Symes in 1996 for $4.5 million to the couple, who later sold it to the collector in New York.

We will follow this latest twist of the discovery of the second ancient artifact and its expected eventual return to Lebanon.

In recent art world news, one of the largest art scandals in New York has come to a close with the recent settlement of the last of ten lawsuits brought against Ann Freedman, the former director of the now defunct Knoedler Gallery, that arose from a $70 million forgery ring forcing the long established, renowned art gallery to close in 2011.  The lawsuit was brought by a California art collector who with her then husband had purchased a purported Jackson Pollock for $3.1 million in 2000.  The terms of the settlement were filed in federal court in Manhattan in late August and were not disclosed.

According to Freedman’s attorney, all of the cases had been amicably resolved and Freedman was thankful that she can now focus on her own art gallery, FreedmanArt, which opened on the Upper East Side in Manhattan in 2011.

The plaintiffs in the lawsuits, who also sued Knoedler Gallery and its holding company 8-31 Holdings, alleged that “Knoedler and Freedman knew or should have known that the works were fake, an allegation the defendants denied.”  Two lawsuits against Knoedler Gallery and 8-31 Holdings remain ongoing.

For our previous coverage of the Knoedler Gallery litigation on the Art Law blog, see “The Knoedler Gallery Litigation – Can Art Buyers Rely On Dealer Representations?” and “Extradition Of Alleged Member Of Knoedler Forgery Ring And Settlement Of The Knoedler Litigation,” published online in February 2016.

 

In the wake of more WWII/Nazi era stolen art legal battles, the International Foundation for Art Research (IFAR) has issued a new Provenance Guide, which highlights the importance of archival research, and states that provenance research is “a must” for all art purchasers.  The Provenance Guide includes links to numerous archival websites and databases (including the Getty Research Institute), which will aid in provenance due diligence.  IFAR states that provenance litigation demonstrate that “all available archival materials must be consulted . . . ” because among other things, “documentary evidence may be open to interpretation.”

 

 

 

In recent art world news, the Metropolitan Museum of Art in New York has turned over another antiquity to prosecutors in Manhattan after one of its curators had raised concerns about the ancient object after researching it last year.  Prosecutors have taken custody of the ancient artifact, the head of an ancient marble sculpture of a bull, on loan to the Met Museum, due to concerns that it had been looted from a Lebanese storage area during the civil war in Lebanon in the 1980s.

The prior owners of the 2,300 year old marble object claim they have clear title to the antiquity and have taken legal action against the prosecutors for its return.  The prior owners are also pursuing legal action against Lebanon’s antiquities directorate in connection with a federal lawsuit in which they argue that “neither the Lebanese government nor the Manhattan prosecutors have offered convincing proof that the [antiquity] was stolen.  The lawsuit also cites property rights, cultural patrimony laws, statutes of limitations and jurisdictional issues as grounds for the sculpture’s return to them.”

The prior owners purchased the artifact from an art dealer in London back in 1996 for over $1 million and then sold it to a collector in 2010 who is the current owner.  The current owner loaned the antiquity to the museum that year, but has since asked the prior owners to take the artwork back and compensate him after becoming aware that Lebanon was disputing its provenance.

The prior owners’ attorney said in a statement that he and his clients believe the “district attorney’s position is ill-founded” and added that the prior owners are “bona fide purchasers with clean hands.  By contrast, for more than 50 years, Lebanon has failed [to] take any action domestically or internationally to report any theft of the bull’s head.”

The Met Museum released the following statement:  “Upon a Met curator’s discovery that this item on loan may have been stolen from government storage during the Lebanese civil war, the museum took immediate action.  We contacted the Lebanese government and the lender, we took the item off display, and we have been working with federal and state authorities, which recently involved delivering the head of the bull to the Manhattan D.A. upon its request.”

The antiquity has a deeply rooted history.  According to museum and Lebanese authorities, the artifact was “first catalogued in 1967 by a Swiss archaeologist excavating the Temple of Eshmun in Sidon, Lebanon.  It is believed to be of Greek origin, was warehoused in the city of Byblos, the site of a looting spree in the 1980s.”

This is the second time in recent weeks that the museum has been asked to turn over an antiquity to prosecutors in Manhattan with different circumstances in each case.  As discussed in our recent blog post last week, the Met Museum returned an ancient vase that it bought at auction back in 1989 due to concerns that it may have been looted from Italy.

For more information on this latest antiquity provenance dispute, see “Met Museum Turns Over Another Relic With Disputed Past to Prosecutors,” published online by the New York Times on August 1, 2017.

In recent art world news, last week the United States Court of Appeals for the Ninth Circuit held that a holocaust survivor’s heirs can seek the return of a Nazi looted painting from Spain’s Thyssen-Bornemisza Museum.  The prized painting, “Rue Saint-Honore, Apres-Midi, Effet de Pluie” (1897), is a vibrant Impressionist oil-on-canvas created by Camille Pissaro while living in Paris in the late 19th century. Nearly 80 years ago, Lilly Cassirer was forced to surrender her family’s treasured Pissaro painting to the Nazis in exchange for safe passage out of Germany during the Holocaust.  For nearly the past 20 years, Lilly Cassirer’s heirs have been trying to get it back.

By the end of World War II, the painting had disappeared.  In believing the work was lost, the German government paid Lilly Cassirer $13,000 in total reparations in 1958.  Lilly Cassirer passed away four years later in 1962.  In 1999, a friend of Lilly Cassirer’s grandson Claude Cassirer, who had fled Germany with Lilly and her family in 1939, discovered a photo of the painting in a catalog and reached out to him.  Shortly thereafter, Claude Cassirer learned that the painting was displayed in the Madrid based museum.

Claude Cassirer had initiated the litigation against the museum, which was taken over by his children, David and Ava Cassirer, after Claude’s passing in 2010.  The family had previously went through diplomatic channels to request the return of the painting, but was rejected.

In last Monday’s ruling, the Ninth Circuit concluded that the museum previously failed to establish that it was unaware the painting was stolen when the work was acquired from Baron Hans-Heinrich Thyseen-Bornemisza, scion of Germany’s Thyssen steel empire and one of the 20th century’s most eminent art collectors.

Baron Hans-Heinrich Thyseen-Bornemisza had acquired the painting for $275,000 from a gallery owner in New York in 1976.  Before that, the painting had been sold and resold by various United States art collectors.  The Baron’s art collection of over 700 paintings was eventually turned over to Spain, which created a non-profit foundation to run the museum named for him.

The Cassirer family’s attorney praised the court’s decision and said “[i]t sent a strong message that even public authorities cannot take possession in bad faith of stolen property and then somehow gain title to it simply over the passage of time.”  The museum’s attorney said that Spain remains confident it will prevail and that the museum acquired the painting in good faith.  The Cassirer family disputes the museum’s attorney’s assertion and believes it should have been obvious to museum authorities by the 1990s that the museum had acquired a Nazi looted work.

The Cassirer family is hopeful that the outcome will lead to the return of the painting and has said that it should be displayed publicly.  The Pissaro painting has been appraised at more than $30 million.

For a detailed background and procedural history of the case, see the Ninth Circuit’s decision captioned Cassirer v. Thyssen-Bornemisza Collection Foundation of July 10, 2017.

 

In recent art news, known art fraudster Vincent Lopreto, who previously served time in prison for selling forged Damien Hirst prints, was charged in a Manhattan courtroom yesterday for selling nearly half a million dollars worth of counterfeit Damien Hirst prints over a two year period. Lopreto pleaded not guilty. Two other individuals, Marco Saverino and Paul Motta, have been charged in the alleged art fraud scheme as well. Those individuals are being held out of state.

Lopreto was arrested in New Orleans last week following a recent sting operation by undercover New York police officers, who bought a couple of Lopreto’s counterfeit Damien Hirst prints. Lopreto and the other defendants were selling the fake art work for between $3,000 to $14,000 for each print. Authorities claim that Lopreto had been advertising the “limited edition” prints online with alleged fake certificates of authenticity and purchase receipts.

Manhattan District Attorney Cyrus Vance said in a statement that this case of fraud “went beyond plain imitation” as the defendants had deceived “a multitude of buyers into purchasing counterfeit art that was falsely passed off as genuine.”

If convicted, Lopreto could receive a sentence of up to 20 years in prison.

In recent art news, Trinity Church in Lower Manhattan is being sued by a sculptor for relocating his bronze sculpture of the stump and root system of a very large sycamore tree entitled “The Trinity Root” that was formally installed on the church grounds.

In September 2005, the 18-foot-tall work was installed by sculptor Steve Tobin in the church courtyard in the same location where the original 70-year old sycamore tree stood until it was damaged and ripped out of the ground by the seismic impact of the collapse of the twin towers of the World Trade Center on September 11, 2001.

In late 2015, the sculptor discovered that the church had relocated the sculpture to a church-owned site in Connecticut without his consent.  The sculptor had received photographs from the church showing the sculpture with “significant damage” after being told that the sculpture had arrived to the new location in good condition.

The recently filed lawsuit in the Federal District Court in Manhattan alleges that the church violated a law known as the Visual Artists Rights Act (VARA) that gives visual artists rights over their works even when no longer owed by them.  The sculptor’s attorney said that the law “prohibits the removal of sculptures” created to be permanently installed at a specific site.  “This is about the solemn promise the church gave to Steve Tobin when he offered to create that sculpture” and “[h]e offered to create it if the church would give it a permanent place in the courtyard.  The church agreed.”

According to the lawsuit, after the church’s new leader was installed in 2015, he moved “to send ‘The Trinity Root’ away because he did not want non[-]parishioners and ‘hordes of strangers’ to continue to crowd the church’s courtyard.”

The church released the following statement:  “While we have no comment on this litigation, Trinity is pleased to have the sculpture at Trinity’s retreat center, where it will be among a collection of planned sites that will encourage prayerful reflection, remembrance and spiritual transformation.”

For additional information in connection with this suit, see “Fate Of The ‘Trinity Root’ 9.11 Memorial By Steve Tobin To Be Decided In Federal District Court.”

 

The US. District Court for the District of Columbia recently denied a preliminary injunction seeking the reinstallation of a controversial “anti-police” painting at the U.S Capitol complex.

David Pulphus, a student artist from Missouri’s First Congressional District, and William Lacy Clay, the congressional representative for that district, filed a lawsuit claiming that their First Amendment rights to free speech were infringed upon when the Architect of the Capitol, Stephen T. Ayers, removed Pulphus’s painting from a display of student art.

Pulphus’s painting was selected to represent Clay’s congressional district in the 2016 Congressional Art Competition, and was hung in the Cannon Tunnel in the U.S. Capitol complex in June 2016 with the other winning artwork.  The painting was removed several months later by the Architect of the Capitol (who oversees the competition), after receiving several complaints that the painting was “anti-police.”

The Court prefaced its opinion stating that “[a]lthough the Court is sympathetic to plaintiffs given the treatment afforded Pulphus’s art, under controlling authority this case involves government speech, and hence plaintiffs have no First Amendment rights at stake.”

Read the Court’s opinion here.

The “Fearless Girl” was created by sculptor Kristen Visbal and erected in Bowling Green in honor of International Women’s Day in March.  The statue has become wildly popular.  Although set to be removed next week, it will remain in place until early 2018.  However, not everyone is supportive of the artwork.

Fearless Girl Statue by Kristen Visbal New York City
Photo by Anthony Quintano, used under Creative Commons Attribution 2.0 Generic (CC BY 2.0) license (unaltered)

“Fearless Girl” defiantly faces Wall Street’s famous “Charging Bull” statue, which was created by sculptor Arturo Di Modica, who copyrighted and trademarked his creation.  Di Modica believes “Fearless Girl” subverts the meaning of his artwork, and his lawyers have accused the company that commissioned the statue of improperly commercializing D. Modica’s bull in violation of the copyright.

Read more here and here.

The New York Times recently reported that its readers are divided on the issue of whether the original intent of the artwork should be able to stand over time and how much public art is protected.  Read the article and NYT’s readers’ comments here.