Just a few days after the Second Circuit held that New York’s Metropolitan Museum of Art could keep in its collection the monumental work by Pablo Picasso entitled The Actor, New York’s Appellate Division, First Department, upheld the return to the heirs of the original owners of art allegedly looted by the Nazis during World War II. Both of these recent decisions touch upon the Holocaust Expropriated Art Recovery Act (HEAR Act), the 2016 legislation that expanded the timeliness for actions to recover artworks lost during the Holocaust.
On June 26, 2019, the Second Circuit upheld the 2018 decision of the United States District Court for the Southern District of New York that allowed New York’s Metropolitan Museum of Art (the Museum) to keep in its collection the monumental work by Pablo Picasso entitled The Actor, 1904−1905. The work was originally owned by Paul Friedrich Leffmann, a successful German-Jewish entrepreneur, who owned a manufacturing business and multiple properties as well as a sizable art collection. In the 1930s, after the newly adopted Nuremberg Laws deprived all German Jews of the rights and privileges of German citizenship, Leffmann was forced to sell his home and business and flee from Germany to Italy.
SCOTUS May Get a Say in the Fate of the Guelph Treasure
The Prussian Cultural Heritage Foundation (Stiftung Preussischer Kulturbesitz or SPK), which operates Berlin’s state museums, plans to seek review by the United States Supreme Court of the issue of U.S. courts’ jurisdiction to hear the case of the 1935 sale of the famed Guelph Treasure by Jewish art dealers to the Prussian government. The Guelph Treasure is a collection of 82 pieces of medieval ecclesiastical art originally housed at Brunswick Cathedral in Braunschweig, Germany. The Treasure is presently dispersed between private and museum collections, including the Bode Museum in Berlin. In 2015, the heirs of the Jewish dealers filed a lawsuit against the German government in the United States, alleging that the 1935 sale occurred under duress. SPK unsuccessfully moved to dismiss on jurisdictional grounds and their appeal was rejected his month when the U.S. Court of Appeals for the District of Columbia Circuit dismissed the petition to rehear en banc.
MFA Boston Bans Two Visitors, Reviews Internal Procedures Following Allegations of Racist Comments Directed at Students on a School Trip
The Museum of Fine Arts (MFA) Boston completed its internal investigation into the complaint that children on a recent school trip to MFA were allegedly subjected to racist comments by visitors and profiling by staff. After reviewing video footage, MFA banned two visitors and revoked their memberships. MFA also committed to changing its protocols and procedures to clarify expectations for visitor and staff behavior.
Computer Viruses as Contemporary Art
Chinese internet artist Guo O Dong created the artwork titled “The Persistence of Chaos” by infecting a 2008 Samsung notebook with six of the worst computer viruses in the world. Now, the artwork is to be sold at auction and potential buyers have already made several hundred bids on the laptop, increasing the current going price to $1.2 million. Luckily the computer, presently “quarantined” in solitary confinement in New York, is firewalled from other computers and cannot spread its malware.
Claude Monet’s Haystacks Painting Sets a New World Record for the First Impressionist Work to Sell for More than $100 Million at Auction
The Meules (Haystacks) painting (1890), part of the Haystacks series by the celebrated French Impressionist Claude Monet, is one of the most recognized images in art history. Last week, the work sold at an auction in New York, breaking records for the most expensive work by the artist ever sold and for the most expensive Impressionist painting.
Chicago Institutes a Registry to Protect Street Art
Chicago’s Department of Cultural Affairs and Special Events launched a program to protect street artworks and created a public database of such works. Artists are encouraged to submit their works for inclusion in the database, provided the art was either commissioned or sanctioned by the property owner.
- Artnet News: Chicago Has Launched a Street Art Registry to Prevent Beloved Murals from Being Inadvertently Destroyed
Notre Dame De Paris in Flames
The world watched in horror on April 15 as Paris’s Notre Dame Cathedral, built in the 13th century, suffered a devastating fire. The cathedral, one of the world’s greatest historical and architectural treasures, has been plagued by the need for repairs not just in recent years but at least since the time of Victor Hugo. Prominent collectors and institutions have pledged funds for the reconstruction of the cathedral. Wilson Elser partner, Eric Cheng traveled to Paris last week and shared his photo of the cathedral before the fire.
- Le Monde: Emmanuel Macron souhaite que Notre-Dame soit reconstruite « plus belle encore » d’ici 2024
- Smithsonian.com: Notre-Dame Is in Desperate Need of Repairs
- Artnet® News: French Billionaire Art Collectors the Pinaults and the Arnaults Pledge $340 Million to Rebuild Notre Dame
In March 2019 the U.S. Supreme Court issued decisions in two copyright cases, both of which concern narrow issues of statutory interpretation and are examples of matters that the Court addresses to ensure uniformity in the decisions of the lower courts. Following is an account and analysis of the cases.
In the first case, Rimini Street, Inc. v. Oracle USA, Inc., 586 U.S. _, 139 S. Ct. 873, 203 L.Ed. 2d 180, 129 U.S.P.Q.2d 1459 (2019), the Supreme Court overturned a ruling of the Ninth Circuit, which awarded Oracle more than $12 million in nontaxable litigation costs under 17 U.S.C. §505 in a suit against Rimini Street, a technical support service that offered software updates to the customers of Oracle’s enterprise software. Oracle claimed copyright ownership in various aspects of the software programs that Oracle markets. It claimed that Rimini infringed those copyrights in the course of providing software updates to customers that were using Oracle’s software. Oracle prevailed in the copyright lawsuit, winning more than $124 million in total monetary damages. At issue was the award of expert witness fees, e-discovery expenses, contract attorney services fees and jury consultant fees totaling more than $12 million.
The Copyright Act gives federal district courts discretion to award “full costs” to a party in copyright litigation. Rimini argued that “costs” is a term of art in federal statutes that refers directly to the taxable costs defined in 28 U.S.C.A. §1920; Oracle’s counter-argument was that the word “full” authorizes the courts to award expenses beyond the six categories of costs specified in the general costs statute, codified as 28 U.S.C.A. §1821 and §1920, and instead means recovery of all litigation costs. In a unanimous ruling authored by Justice Brett Kavanaugh, the Supreme Court held that the provision authorizing award of “full costs” to a party in copyright litigation does not authorize courts to go beyond the specific types of costs available in the general costs statute.
While impact of the decision in Rimini Street was significant for the parties involved because the costs were significant, the practical application of this decision going forward may be modest. However, the decision is nonetheless noteworthy for two reasons: first, the decision makes the nontaxable cost awards in copyright infringement litigation more predictable; second, this decision will likely encourage federal courts to read the costs provisions under other federal statutes narrowly.
In the second matter, Fourth Estate Public Benefit Corporation v. Wall-Street.com, 586 U.S. ___, 139 S. Ct. 881; 203 L. Ed. 2d 147, 129 U.S.P.Q.2d 1453 (2019), the Supreme Court resolved a conflict in authority between the circuit courts as to the meaning of the phrase “registration of the copyright claim has been made,” as contained in section 411(a) of the Copyright Act.
While copyright protection is automatic and copyright registration is optional, a copyright owner must register its copyright before filing a copyright infringement suit. Prior to the decision in Fourth Estate, there existed a split in authority as to whether section 411(a)’s registration requirement may be satisfied merely by submitting a copyright registration application (as the Fifth and Ninth circuits allowed) or whether it was necessary for the Register of Copyrights to either register the copyright claim or deny the registration (as the Tenth and Eleventh circuits required).
Fourth Estate is a news organization, which licenses news articles written by its journalists to online sites, and claims to own the copyrights to those articles. The license agreement terms required Wall-Street.com, a subscribing website, to remove any Fourth Estate articles before cancelling their subscription. Wall-Street.com subscribed for a time but after cancelling its subscription continued to display those articles.
While Fourth Estate’s copyright registration for the articles at issue was still pending, it filed suit against Wall-Street.com, alleging that the website reposted articles without permission after their subscription had expired. The district court dismissed the case on the grounds that Fourth Estate had filed the lawsuit before it had fully registered the copyright. The Eleventh Circuit affirmed, holding that that “filing an application does not amount to registration.” Justice Ruth Bader Ginsburg penned the unanimous opinion of the High Court, which held “that ‘registration … has been made’ within the meaning of 17 U. S. C. §411(a) not when an application for registration is filed, but when the Register has registered a copyright after examining a properly filed application.”
Besides the resolution of the long-standing circuit split, the practical implication of this opinion is that litigants may delay filing copyright suits for several months while their registration applications are pending and will likely discontinue forum shopping for the jurisdiction that gets them to court faster (i.e., a jurisdiction that would allow filing suit based on a mere application). Copyright holders may be deterred from including in their lawsuit claims of infringement of unregistered, peripheral copyrights in an attempt to present a case as one meriting a larger damages award and thus try to secure an advantage in resolution discussions.
In both Rimini Street and Fourth Estate, the Supreme Court adhered closely to the plain language of the statutes, possibly providing insight as to how this court may rule in similar matters involving narrow statutory interpretation issues. Overall, the results of both cases should be welcomed by practitioners as they provide a greater degree of certainty in how copyright infringement matters will be resolved going forward.