When a photographer sells a “limited edition” of a photograph, does that mean that she cannot later sell any additional prints of that photograph, even if the reprints differ in size and medium from the original edition? The answer is no, according to a federal judge who recently dismissed a collector’s lawsuit claiming that artist William Eggleston violated the law by selling digitized reprints of some of his most popular photographs. The decision should comfort artists wishing to create new editions of prior work, and is a cautionary tale for collectors interested in works sold in multiples. Continue reading »
The Second Circuit has affirmed dismissal of photographer Janine Gordon’s copyright infringement claims against photographer Ryan McGinley and several other defendants who allegedly displayed McGinley’s work, including Frankfurt Kurnit client Ratio 3 Gallery. Continue reading »
Back in January, we blogged that the Velvet Underground (“VU”), a business entity formed by the rock group “The Velvet Underground,” sued the Andy Warhol Foundation for the Visual Arts, Inc. (the “Warhol Foundation”) for licensing Warhol’s iconic banana image (the “Banana Design”) that he had created for the cover of the band’s signature album, The Velvet Underground & Nico. As part of the relief requested, VU asked the Court to declare that the Warhol Foundation has no copyright in the Banana Design. Continue reading »
Shepard Fairey avoided jail time for his criminal contempt conviction arising from evidence tampering in his previous civil lawsuit against the Associated Press. Fairey, who pled guilty to the contempt charges in February of this year, was sentenced to two years probation, community service and a $25,000 fine. The charges arose from his destruction and alteration of electronic data evidencing his use of an AP photograph of President (then Candidate) Barak Obama as the basis for the famous “Hope” poster, which became an emblem of the campaign.
In a statement published on the Huffington Post today, Fairey expressed remorse for his actions, as well as regret that his misconduct detracted from the important issues of fair use and creative freedom, which he had hoped to highlight in his lawsuit.
In Estate of Sonnabend, a golden eagle creates some major complications
Estate of Ileana Sonnabend, now pending in the U.S. Tax Court, Docket No. 000649-12, presents a peculiar valuation issue, with the Internal Revenue Service taking an even more peculiar position in asserting that federal estate tax was due for artwork that couldn’t legally be sold.
The decedent was a leading art dealer, who left an inventory of post WWII art by modern masters, such as Jasper Johns, Andy Warhol and Jeff Koons, with a reported value upwards of $1 billion. Her heirs dutifully sold numerous works, raising $471 million to pay federal and state estate taxes. Continue reading »
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On Sunday July 22, Penn State University removed the famed bronze statue of Joe Paterno, which was located outside its football stadium, one day before the NCAA announced a slate of severe sanctions against the university arising from its role in the Sandusky child molestation scandal. A few days later, news reports emerged that sculptor Larry Nowlan suggested the statue be melted down and recycled into a “healing memorial” for victims of child abuse. While this proposal may have both spiritual and artistic merit, there is one problem: Nowlan is not the sculptor who created the Paterno statue. That distinction belongs to Angelo Di Maria who created the clay model for the statue from a photograph he took of Paterno at a football game, as well as artists Wilfer Buitrago and Yesid Gomez who worked with Di Maria to construct the final bronze statue. Continue reading »
On May 17, 2012, the United States District Court for the Central District of California granted Sotheby’s and Christie’s joint motion to dismiss a complaint filed by artists alleging violations of the California Resale Royalties Act (“CRRA”).
In moving to dismiss, Sotheby’s and Christie’s argued that the CRRA (1) violates the dormant Commerce Clause, (2) is a “taking” of private property in violation of the U.S. and California constitutions, and (3) is preempted by the Copyright Act of 1976.
The court held that the CRRA violates the dormant Commerce Clause. The Commerce Clause in Article I of the U.S. Constitution expressly grants Congress the power to regulate commerce “among the several states.” There is no actual “Dormant Commerce Clause” found in the U.S. Constitution. Rather, it is a judge-made doctrine that has been inferred from the Commerce Clause and limits the States’ power to regulate interstate commerce.
The court found that the dormant Commerce Clause applies to the CRRA because works of fine art are sold from one state into another, and because the large number of such transactions has a “substantial effect” on interstate commerce.
The court then found that the CRRA violates the dormant Commerce Clause per se, because of its “problematic reach.” Under its clear terms, the CRRA regulates sales of fine art occurring wholly outside of California, so long as the seller resides in California. According to the court, the CRRA therefore exceeds the inherent limits of California’s authority.
Although the CRRA contains a severability provision, the court nonetheless struck down the entire statute. After analyzing the CRRA’s legislative history, the court concluded that the California legislature would not have enacted the CRRA without its extraterritorial reach. Thus, if the court were to sever the extraterritorial provisions of the CRRA, it would create a law that the legislature never intended to enact.
Because the court found that the CRRA violates the dormant Commerce Clause, it did not address the preemption and Takings Clause arguments.
Plaintiffs’ counsel intends to appeal this decision.
One of photographer William Eggleston’s top collectors recently filed a lawsuit seeking to stop the artist from selling larger, digital reprints of some of his best-known, limited edition photographs. The lawsuit claims that the artist has no right to create these new works, even though they are in a medium that did not exist when he created the vintage prints and are much different in size.
Eggleston is known as a pioneer of color photography. Some of his most iconic works date from the early 1970s and include images of ordinary and even mundane aspects of American life. Eggleston recently created larger, digital versions (the “Reprints”) of eight of his most popular photographs and sold them for record prices at auction last month, including $578,500 for a single work.
Not all of his collectors love these new works. Last week, Jonathan Sobel, an avid Eggleston collector, filed a lawsuit in federal court in Manhattan against Eggleston and the trustees of his artistic trust. Sobel owns more than 190 Eggleston photographs and in 2009 sponsored a career retrospective for the artist that was exhibited at the Whitney Museum of American Art.
In his Complaint, Sobel claims that he owns limited edition copies of each of the eight photographs that were used to create the Reprints. Sobel alleges Eggleston created these “vintage” prints from photographic negatives or slides. He claims that his photographs were part of limited editions, which is evidenced by the fact that the prints are individually numbered. He claims that he bought these prints not from Eggleston himself, but rather from two auction houses and a prominent gallery in the past several years.
Sobel’s Complaint alleges five claims against the Eggleston defendants: (i) violation of New York statutory law governing the sale of editioned works; (ii) fraudulent misrepresentation against Eggleston only; (iii) negligent misrepresentation; (iv) unjust enrichment; and (v) promissory estoppel. As damages, Sobel seeks the difference between the value of his collection of Eggleston photographs before and after the Reprint sales. He also seeks punitive damages, as well as injunctive relief prohibiting the defendants from any future sales of the Reprints or any reprints of other vintage photographs.
Sobel does not allege that any specific market harm for the vintage prints has occurred. He does not, for example, allege that he recently tried to sell some of his prints, and they failed to sell at historic sales prices. Rather, Sobel’s case appears to be based on the perceived fear that the existence of additional versions of these images will damage the market for his collection of vintage photographs. According to Sobel’s Complaint: “the value of Sobel’s photographs from the Limited Editions has been diminished by the very existence of additional copies of the same image now in the art market.”
While the Reprints have garnered record sales figures, it appears that the vintage prints are also faring well. For example, last month, a poster-sized print of a 1973 photograph depicting a painted sign for “Peaches!” on a tin roof sold at auction for $422,500. A few weeks later, a vintage print of the same work sold for $242,500. The price for the vintage photograph was well above the auction estimate of $70,000 to $90,000. Additionally, that figure is consistent with the historical sales figures for Eggleston’s vintage prints, which according to Sobel’s Complaint range from tens of thousands of dollars to over $250,000 per photograph.
While Eggleston has not yet had an opportunity to defend the lawsuit, according to the Wall Street Journal his lawyer has stated that the case has “no merit.” Even after selling a work of art, the artist retains the copyright in the image, including the reproduction rights. According to Eggleston’s attorney, the artist was within his rights to “create new editions in new formats” and no law “prevents an artist from creating additional works with the same image.”
Last Friday, street artist Shepard Fairey pled guilty to one count of criminal contempt for destroying documents, manufacturing evidence and other misconduct in his civil suit against the Associated Press (“AP”).
In the Fairey-AP case, the AP claimed that Fairey and his licensee Obey Clothing committed copyright infringement by using an AP photograph of then-Senator Barack Obama on posters and apparel without crediting or compensating the AP. That case settled last year. Continue reading »
On January 11, the Velvet Underground (“VU”), a business entity formed by the rock group “The Velvet Underground,” filed suit against the Andy Warhol Foundation for the Visual Arts, Inc. (the “Warhol Foundation”). VU alleges that the Warhol Foundation committed trademark infringement by licensing the use of the emblem the group believes is its signature, the banana. The band had used the allegedly iconic mark on its first album, The Velvet Underground and Nico, published by MGM Records in 1967. Continue reading »