Category

Law \ Legal

Category


By: Bhumika Sharma

“Art is never chaste. It ought to be forbidden to ignorant innocents, never allowed into contact with those not sufficiently prepared. Yes, art is dangerous. Where it is chaste, it is not art.”

-Pablo Picasso

Obscene artworks have often invited the attention of courts, not just in recent times but also in the past. Created in circa 1797, Francisco Goya’s La Maja Desnuda, also called one of the sexiest paintings of all times, was once seized by the authorities. The painting portrays a woman lying naked on a green velvet bed and although this was not the first nude painting, what was so shocking about the painting was the fact that the woman in the painting held an unapologetic and unashamed gaze, looking directly into the eyes of the viewers. This painting was considered so deplorable that the curator and the first known owner of the painting, erstwhile Prime Minister of Spain Manuel de Godoy, were summoned in the court to identify the creator of this painting. Owing to which Goya was summoned in the court for moral depravity. Though the painting was once confiscated , today it hangs in one of the most prestigious museums in Spain, Museo del Prado in Madrid, an example of how art, no matter how shocking, finds acceptance from its audience over time.

The works of art and science are important as they aid in human flourishing in the society but what motivates the creators to make these works? Other than passion for the subject itself, the economic benefits earned due to the exclusive rights granted by the copyright protection act as an incentive for authors to create more works. But what works actually deserve this protection is a question often asked and seldom answered, especially when the works in question are obscene or illegal in nature. 

The U.S. Constitution allows authors to protect their original expression of ideas to promote the progress of science and useful arts through the provisions of Copyright law.[1] The Copyright law protects artistic works; literary, musical, dramatic and architectural works.[2] As per Berne Convention, registration is not an essential for copyright protection, protection exists as soon as the work is created. Even the Copyright Code[3] does not place any restrictions on the protection of the works, as long as the works are original and in fixed and tangible medium, they are eligible for copyright protection. Thus, apart from these there are no content based restrictions on the eligibility for copyright protection.[4] Therefore, all kinds of work can be protected under Copyright law. The explanation for this could be that any restriction could abridge the freedom of speech under the First Amendment and the uncertainty of whether a work would be eligible for protection could cause a chilling effect on the creation of such works and, thus, discourage art.[5] Apart from this, imposing any aforesaid restrictions could empower the registrars to decide what constitutes as art and to define its scope, a work which the registrars aren’t trained for, as it would require aesthetic evaluations to decide the nature of such works.[6] Despite the evolution of the Code, the question of copyrightability of obscene and illegal works is unanswered. The reason being that often courts have considered obscenity outside the protection of the First Amendment.[7] Though, some decision would back the rule of no content based restrictions, even when the work is illegal,[8] some courts would disagree and deny ‘obscene’ any protection.[9]

To decide whether obscene works deserve copyright protection, it is important to first understand the meaning of the word obscene. Though, there is no fixed-legal definition for the word ‘obscene’, the overall meaning can be understood by referring to the various legal precedents. Any work can be said to be obscene if, ‘it has the tendency to corrupt the minds of people’,[10] and at some instances glamourizing the potential dangerous behavior can be held to be obscene.[11] Further, ‘obscene’ does not only include sexual content, in 1990, earrings made from human fetuses displayed at an art gallery were considered to be ‘obscene’.[12] Thus, anything that ‘appeals to a prurient interest in sex, portrays sexual conduct in a patently offensive way’[13] can be to be obscene, though violence has recently been removed from the definition of obscenity under the First Amendment.[14] The definition of obscene is unclear and thus, it relies on courts to decide it on case-to-case basis, and to deal with this ‘intractable obscenity problem’,[15] courts have set tests to determine whether a work is obscene in nature. 

The first such test to be used was the Hicklin test, wherein the rule was to see if the tendency of the matter . . . is to deprave and corrupt those whose minds are open to such immoral influences,[16] which was later replaced by the Roth test. This test focused on the entire work as opposed to isolated passages and on the average person.[17] Even though these tests offered a direction to the courts dealing with the issue, the courts still struggled with cases of obscenity. The current in use and the most popular test in this respect is the Millers test,[18] which set the conditions to determine the nature of works.

Despite the development, defining ‘obscenity’ is still a challenge for the courts as said by Justice Potter “…I could never succeed in intelligibly doing so. But I know it when I see it…”.[19] The reason being, obscenity depends upon the moral standards, which are highly subjective and keep on changing continually. In 1867, a play was held to be uncopyrightable as it portrayed women in flesh-colored tights,[20] thus, which was as per the moral standards of the bygone era, but it is important to note that the term of copyright is for a long duration, thus, the work must be judged with foresight.  Also considering the issue of copyright eligibility, the works of art have various media of expression like literature, visual arts, musical works, etc., in these cases, the definition of obscenity would change through this media. For instance, if a portrait of an explicit scene is granted copyright protection, would the photo or video of the same scene enjoy the protection too? or would they fall under pornography and be denied any protection. In such cases, where a work is considered obscene, the author would be subject to criminal action, and the only potential defense for obscene works is for the author to satisfy the balance of probability that the work is made for public good and,[21] to show that the said work is in the interest of science, literature, art or learning.[22]

The works that lay on the thin line of ‘obscene’ and ‘protected under freedom of expression’ have often received a mixed response by courts. In past, where some courts have been strict to apply the rules and ruled any obscene work uncopyrightable,[23] some courts have ruled in favour of such works, providing them copyright protection.[24] In the case of ‘Behind the Green Door’, the court held that while deciding the copyrightability of a work, court need not determine the nature of such work, as no content-based restrictions were placed by Congress except for the originality requirement. Even though the protection of obscene works is still debatable, the courts have often ruled that obscenity cannot be used as a defense in infringement cases, as the fair use parameters would apply to these works.[25] Though there has been a lot of progress on the issue of copyrightability of obscene works, yet there exist many unanswered questions. 

As it is evident that the primary purpose of copyright is to promote ‘art and science’, it is pertinent to understand the scope and meaning of the term ‘art’ and the part that these alleged ‘obscene’ works hold in relation to the promotion of ‘art and science’. The term art has innumerable meanings and definition, it is undefined and the scope of it is broad enough to fit anything. From the duct taped banana[26] to the portrait of Mona Lisa, they all fall under the meaning of art. Many artworks have often been subject to mass criticism or opposition from a part of society, that is because art is a subjective term, its meaning changes from person to person. Due to its undefined nature, artworks have been successful at evoking strong emotions, of love, hatred, disgust, etc., of the audience. And only because art is offensive, it cannot be said to have fallen outside the domain of Free Speech.[27]

Art always tests its audience, as to how far they might go as audiences and this testing nature of art has helped art change the mindset of the society and bring a change. Historically, art has led to revolution, the reason being some artworks are always ahead of their time. These works are made to challenge the norms of society on subjects that are socially unacceptable at the time of the creation of the artwork. Examples for the above can be taken from Marcel Duchamp’s “Fountain”, Mapplethrope’s photographs exploring homosexuality[28] and the book ‘Bluest Eye,’ which deals with the concept of racism in society. The common factor among all these artworks is that they were all controversial and ahead of their time and thus, challenged. The audience during the creation of these works were not ready to accept these artworks, but in today’s world would the artworks on similar taboos be as controversial as they were in the past? Not likely, as we have evolved as a society. Thus, denying protection to works, which would affect the production of the said works, adjudged by standards of one era would affect the society’s growth, as these works would not only be acceptable but also inspirational for the later generations. Also, reiterating that copyright protection, unlike trademark and other IP, is for artistic works, it is pertinent to note that obscenity and taboo subjects have been the central theme of artworks for years. Thus, denying these artworks protection would be limiting the scope of art. Also, considering the positive social impact of the said artworks in the society, as they help the citizens attain the elements necessary for a good life like education, self-expression, autonomy, and engagement, under the cultural theory of IP, it would not be in public interest to deny these works protection. Moreover, courts have supported that these artworks come under the protection of free speech and hence, many such artworks have been permitted to be communicated or displayed to the public. For instance, Spencer Tunik was allowed to do a photo-shoot of 75+ naked models as respected Tunik right to engage in expression[29] and an artist had succeeded in a challenge against the policy of a public library against displaying nudes.[30] Thus, some of these artworks have enjoyed protection of freedom of expression, even though sometimes with certain restrictions.[31]

Conclusion

While considering the relationship of art with obscenity and the prominence of the said works in the society, it is pertinent to note the effects of these content-based restrictions on the copyright eligibility of works. It is argued that offering protection to such immoral works would lead to an increase in the production of these works, which is undesirable due to the negative effects of these works in the society, in public interest. On the contrary, offering protection to such works would offer the author a control over the circulation of the artworks as they would not be freely available to exploit for the public. As we have already seen that any aforesaid restriction would require the work to be judged by the current moral standards, this would not justify the loss to the society from interference in literary and artistic freedom.[32] Apart from this, applying any such content-based restrictions would make the registrars the judge of art. In a time where it is difficult for judges to define what is obscene, it would be unfair to push this task on the registrars.[33] Looking at the aforesaid restrictions through the theories of IP, any restriction would not be in consonance with the fairness and personality theory, as the former would argue that an author must be able to reap the fruits of his intellectual labor, the latter would assert that any work is an expression of a creator’s personality and thus, they must be protected. 

Therefore, looking at the current situation, it can be said that the ambiguous nature of the eligibility of protection for obscene works has created an uncertainty among the creators. Thus, it is important for the court to offer a clear stance with respect to protection of the artworks and whether any aforesaid content-based restriction would be justified.

Considering various aspects like the importance of strong artistic works in shaping the society for future, relationship of art, obscenity and the scope of copyright law and the effects of the content-based restrictions, it would be wise to say that any such restriction would not only abridge the freedom of speech and expression but also defeat the purpose of copyright law.

Additional Reading Suggestions

The additional reading suggestions list was put together by the Center for Art Law, with special thanks to Atreya Mathur for the assistance.

[1] U.S. CONST. art. 1, § 8, cl. 8.

[2] The Copyright Act, 17 USC 102 (a) (1976).

[3] Id.

[4] In re Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979) the court held that“The history of content-based restrictions on copyrights, trademarks, and patents suggests that the absence of such limitations in the Copyright Act of 1909 is the result of an intentional policy choice and not simply an omission.

[5] Belcher v. Tarbox, 486 F.2d 1087, 1088 (CA9, 1973).

[6] In re Bleistein v. Donaldson Lithographing Company, 188 U.S. 239 (1903) Justice Homes said that, “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final, judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”

[7] Miller v. California, 413 U.S. 15, 93 S. Ct. 2607 (1973).

[8] In re Belcher v. Tarbox, 486 F.2d 1087, 1088 (9th Cir. 1973), the court stated that “​​there is nothing in the Copyright Act to suggest that the courts are to pass upon the truth or falsity, the soundness or unsoundness, of the views embodied in a copyrighted work”.

[9] In re Devil Films, Inc. v. Nectar Video, 29 F.Supp.2d 174, 177 (S.D.N.Y.1998) the court held that “Once a court has determined that copyrighted material is obscene, there seems no reason to require it to expend its resources on behalf of a plaintiff who it could as readily be tried for a violation of the federal criminal law”; Liberty Media Holdings, LLC v. Swarm Sharing Hash File, 821 F.Supp.2d 444, 447 n.2 (D. Mass. 2011) (If the Works at issue are determined to be obscene, they are not copyrightable).

[10] Obscene Publications Act 1959; Regina v. Hicklin L.R. 3 Q.B. 360 (1868).

[11] Calder (Publications) Ltd v Powell, 1 QB 509 (1965).

[12] In re R. v Gibson (Richard Norman), Crim. L.R. 738 (1990), an artist attached earrings made out of freeze-dried human foetuses and displayed it in a gallery, he and the gallery were charged with, and convicted of, outraging public decency in the UK. 

[13] Roth v. United States, 354 U.S. 476 (1957).

[14] Brown v. Entertainment Merchants Association, 564 U.S. 768 (2011).

[15] Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968).

[16] Regina v. Hicklin L.R. 3 Q.B. 360 (1868).

[17] Roth v. United States, 354 U.S. 476 (1957).

[18] In re Miller v. California, 413 U.S. 15, 93 S. Ct. 2607 (1973), the following conditions were set to determine obscenity; “(1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

[19] In re Jacobellis v. Ohio, 378 U.S. 184 (1964), Justice Potter stated that, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

[20] Society’s view of what is moral and immoral continually changes. To give one example, in Martinetti v. Maguire, 920 No. 9173, (C.C.Cal.1867).

[21] DPP v. Jordan, A.C. 699. 60 (1977).

[22] Obscene Publications Act, (c. 66), § 4 (1959).

[23] Devil Films, Inc. v. Nectar Video, 29 F.Supp.2d 174, 177 (S.D.N.Y.1998); Liberty Media Holdings, LLC v. Swarm Sharing Hash File, 821 F.Supp.2d 444, 447 n.2 (D. Mass. 2011); Barnes v. Miner, 122 F. 480 (C.C.S.D.N.Y. 1903); Broder v. Zeno Mauvais Music Co., 88 F. 74 (C.C.N.D. Cal. 1898); Richardson v. Miller, 20 F. Cas. 722 (No. 11791) (C.C.D. Mass. 1877); Bullard v. Esper, 72 F. Supp. 548 (N.D. Tex. 1947): Hoffman v. le Traunik, 209 F. 375, 379 (N.D.N.Y. 1913); Dane v. M. & H. Co., 136 U.S.P.Q. 426 (N.Y. Sup. Ct. 1963): Shook v. Daly, 49 How. Pr. 366 (N.Y. Sup. Ct. 1875).

[24] Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979).

[25] Pillsbury Co. v. Milky Way Products, Inc., 215 U.S.P.Q (BNA) 124, 9 (N.D. Ga. 1981); Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir. 1982); Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979).

[26] A banana duct taped to the wall was sold for a whopping amount at Miami Art Basel. [James Grebey, “This Banana Was Duct-Taped to a Wall  It Sold for $120,000,” GQ, (7th December, 2019)].”

[27] As Sir Stephen Sedley, a former Court of Appeal judge, explained: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.” (Redmond-Bate v Director of Public Prosecutions, EWHC Admin 733, (1999).

[28] Cincinnati v. Contemporary Arts Center, 566 N.E.2d 207 (Ohio Misc. 1990).

[29] Tunick v. Safir, 209 F.3d 67 (2d Cir. 2000).

[30] Bellospirito v. Manhasset Public Library, No. 93-CV-4484 (E.D.N.Y., 1995).

[31] Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978); Lahme v. Univ. of Sw. La., 692 So. 2d 541 (La. Ct. App. 1997). 

[32] Roth v. United States, 354 U.S. 476 (1957).

[33] Douglas dissent in Roth v. United States, 354 U.S. 476 (1957).

About the Author: Bhumika Sharma is currently pursuing her law undergraduate at University of Mumbai Law Academy. Along with being a law student, she is an art enthusiast, thus, the fields of copyright Law and art law interest her. She may be reached at bhumikasharma954@gmail.com.


By Atreya Mathur

When I see red and black, I think Netflix. You might think Harvard because of their crimson and black logo. I describe the color of my shirt as Tiffany Blue . But it is not the robin egg blue, or the Columbia University blue or the blue of Harrods in London. And I can spot a pair of Louboutin’s from a mile away. Studies have shown that colors can have a powerful impact on thought and association, so it’s no wonder that there are several complexities in intellectual property protection and ownership of a color.

Debates about Anish Kapoor’s blackest black and Purdue’s whitest white have been heard from London to Indiana. Less controversial is the latest installation in NY, Color Factory, is a collaboratively produced art experience inspired by the “joy of color” in New York City. It is a multisensory exhibit with 16 participatory installations that are inspired by (some of) the colors of New York. In this “immersive experience,” viewers begin in one room and are transported into the next, like a maze through tunnels, contraptions in the wall and colorful doors. The installations include a walkable, interactive flowchart quiz that leads you to your “secret color” which is representative of your personality. The results of the quiz lead to different shades of blue, green and red, among others, that are amusingly labeled. A few of my personal favorites were the Eyes of Jake Gyllenhaal for an ocean blue and #Vibes for a hot pink, encouraging you to become a dance floor influencer (a fun segue into the next installation: a luminous dance floor.) Another installation includes an activity on color and human connection through a rotary phone, a sketch pad and color pencils. Finally, there is Color Factory’s signature blue ball pit, which is enormous and very blue (maybe even a little Tiffany blue.) Each installation and every color have the power to make viewers feel a different emotion.

It is therefore clear that when it comes to art, color plays a significant role. A canvas painted black could symbolize something meaningful and powerful. As could a painting that is different shades of white. Contemporary art and modern immersive experiences, such as Color Factory, additionally allow the public to experience art and color in new ways. One of the reviews Color Factory received was how it was “such an original idea.” It’s interesting to think about the “originality” of an exhibit based on color and how these colorful installations are protected under law. This article analyzes intellectual property protection of colors and the implications of copyright and trademark of a color in immersive exhibits.

Copyrightability of Color

If a company uses the same color to market their brand for several years, such as Tiffany or Harrods, can and does it restrict another company from using that color? If Rothko’s White Center uses yellow and pink, can this arrangement of colors be incorporated by another artist? If yes, how can the work be protected from infringement? If not, are there infinite colors and shades that can be used, or will we at some point “run out” of colors to use?

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. Usage of colors themselves cannot be protected by copyright. A color is not distinctive enough to be copyrightable, and it should not be copyrightable, as it aims to monopolize its use and impose restrictions on other creators. However, an arrangement of colors may be afforded such protection when the creator of the work employs skill, judgment, and effort in its creation. One can copyright the arrangement of specific colors in a particular configuration, that is, the exact or near-exact positioning and arrangement of the colors. Copyrighting a color pattern would therein essentially be the same as copyrighting a finished work.

For example, consider a painting that uses only one color in its expression. Think Malevich’s The Black Square (1915). The painting, if created more recently, itself is protected under copyright for being an original work of art under the Copyright Act but the singular color used would not independently fall under copyright protection. The artist in such a case would likely receive “narrow” copyright protection for the work. This means that a straight up reproduction of the same work in different color is still copying and thus infringing. Other artists would be free to use the color for their own artwork but not the pattern of the original copyrighted work. It is likely that there would be no infringement in such cases and each artist would receive narrow protection over their work created with the singular color. For artwork that has a combination of two or more colors, it could be likely that “broader” protection may be granted to the artist due to an existing scheme of specific colors and effort put in by the artist. This would mean that subsequent artists would not be able to create using that certain scheme of colors but could use those colors in a different arrangement which would not violate the original artists’ copyright. Upon analysis, this form of intellectual property protection of a color does not differ greatly from copyright protection of the entire work but it does have a greater effect on ensuring that the purpose of copyright law is met.

The purpose of copyright is to promote science and useful arts and allow creativity and innovation. If one had copyright over a color, they would have monopoly over the color. This would have a chilling effect on artists who aspire to create new works or experiment with colors in their artwork. The principles of copyright law such as the public domain and scenes a faire doctrine may also evidence why color as a concept was not expressly included in the subject matter of copyright law. These doctrines provide that certain creative elements are excluded from copyright protection due to the fact that they either belong to the public or they are elements that are necessary for a common setting due to similarity of expression. It may be argued that colors are also such creative elements that provide a means to expression, and if copyrighted, it would likely reduce the purpose of the law to futility. It is, therefore, most appropriate to copyright the entire work rather than a singular color.

While colors are not often granted protection under copyright law, under trademark law, colors may have a better chance of gaining protection as it is easier to satisfy the criteria and requirements of a color mark, and the purpose of trademark law. However, this tends to play better with companies and well known-marks, rather than artists trademarking a color based on their artwork.

Color as a Trademark

Trademarks are defined as “any word, name, symbol, or device, or any combination thereof” that is used to “identify and distinguish” one’s goods or services from those of other sources. Colors can be registered as trademarks. Colors were traditionally barred from obtaining trademark protection and are not explicitly included within the statutory definition of trademarks. However, in 1995, the United States Supreme Court in Qualitex held that a color can be registered as a trademark upon presentation of evidence showing that the color has become associated with a particular product and identified the source for that product. The trademark owner must show that the trademark color has acquired substantial distinctiveness, and the color indicates source of the goods to which it is applied. Before Qualitex, the Circuits had been split regarding whether color alone could be afforded protection. The Supreme Court settled the issue, unanimously holding that “there is no rule absolutely barring the use of color alone.” Therefore, singular colors and color combinations can be trademarked as part of a product package or service, if, like any other trademark, they satisfy the following conditions:

  1. The color mark must be capable of indicating the source of those goods, even if the source is unknown.
  2. The color mark can not be functional or utilitarian in purpose.

A color can also only be trademarked in connection with a particular good or service if it has achieved “secondary meaning.” The Court analogized color to the category of “descriptive marks,” which are never inherently capable of indicating source. For such categories, there is an assumption that the term—or color—was adopted for purposes other than to identify source. The Court recognized, however, that color, like descriptive marks, could come to identify, distinguish, and indicate the good’s source through “secondary meaning.” More recently, in In re Forney Industries, where a dispute arose from the attempt of Forney Industries to register a mark consisting of an orange color gradually blending into yellow, with a black banner at the top, the Federal Circuit reiterated that color marks on product packaging can be inherently distinctive and may be entitled to trademark protection.

Businesses tend to trademark colors though it isn’t an easy feat. In the case of Louboutin, the United States Court of Appeals for the Second Circuit held that Christian Louboutin had a valid and enforceable trademark for the use of red outsoles, but only when the rest of the shoe was painted in a contrasting color. The Federal District Court, noted in the earlier decision how popular the Louboutin shoe had become stating how it was often seen on Hollywood red carpets and runways, and was essentially instantly recognizable “to those in the know.” But, on appeal, the court stated that the law did not allow “recognition of a trademark for the use of a single color for fashion items.” In reversing that finding, while the appeals court allowed Yves Saint Laurent to sell its monochrome red shoes, the appellate court also stated that color can and does serve as a trademark in the fashion industry, and that Christian Louboutin’s world famous Red Sole trademark is valid, protectable and enforceable.

While it isn’t as common for an artist to trademark a color, there are some trademarked colors that are owned by artists, which cannot be legally used without prior permission from the artist, such as International Klein Blue, a distinctive ultramarine blue which was registered by painter Yves Klein as a trademark. Jewelry brand Tiffany & Co.’s signature blue, as mentioned earlier, is also protected and a registered trademark. More recently, in 2016 sculptor Anish Kapoor purchased the artistic rights to “Vantablack”, a material described as the “the darkest man-made substance.” The substance is made of carbon nanotubes that reflect virtually no light. However, the exclusive license of Kapoor’s Vantablack proved controversial, sparking a feud with Stuart Semple, a British artist who then set out to liberate colors from private ownership. Semple created several of his own “coloriest colors,” including the “pinkest pink” and then made them available to everyone in the world, apart from Kapoor. On purchasing the product, the following message would appear: “By adding this product to your cart you confirm that you are not Anish Kapoor, you are in no way affiliated to Anish Kapoor, you are not purchasing this item on behalf of Anish Kapoor or an associate of Anish Kapoor. To the best of your knowledge, information and belief this paint will not make its way into the hands of Anish Kapoor.”

“This super-glitter by Stuart Semple is available to everyone except Anish Kapoor! (who won’t share his black!).” – CultureHustle

Semple intended for the product to raise a dialogue in a debate about ownership and elitism and privilege and access to the arts. While this has not been decided in a court of law since protection had been granted, it does make for interesting consideration on intellectual property ownership of color given the ongoing debate.

Other colors that are very commonly used by artists could be called “signature colors” where specific artists used them in so many of their works that the shades are associated with them. It is usually challenging to register a color as a trademark. This is due to the public interest notion associated with intellectual property. More trademarks, or copyrights issued for colors, would lead to monopolization of available colors. Despite different shades or hues that may be available, arguably there are a limited number of colors. If trademarks and copyrights were given to all colors, there may very well be no colors left for companies to use. Therefore, there is public interest in preventing monopolization to ensure availability of colors for businesses and for artists. If the owner can show that because of the long-standing and widespread use of the color on its products and services, customers’ perception of that color has changed, then it may be possible to trademark such color. However, it would be even more challenging for an artist to gather evidence to prove the existence of a link between their work and a viewer’s perception.

Conclusion

Considering immersive modern art, each installation is copyright protected as artwork, but the colors itself cannot likely be protected either by copyright or by trademark law. Just as having light projected onto a building cannot be deemed graffiti but could be light pollution, usage of different lights and colors in immersive installations cannot be monopolized., This does not mean that the art or the exhibit is void of intellectual property protection. Copyright exists at the time of creation and each artist has a copyright over their work. An exhibition consisting of different installations relating to color is a creative and artistic endeavor that requires selection, compilation, and arrangement. It is likely that the art is protected under copyright and reproduction of the work would constitute infringement, but the idea of using colors for the exhibit would not be protected. The Happy-Go-Lucky Exhibit in New York City is a similar multisensory exhibit where “you can immerse yourself in a cacophony of glittering lights and dazzling scenes.” The artistic vision of the exhibit is different where it focuses on “you” becoming the art, but it also uses colors and sensory installations in the process. The colors are used as a means of expression, but it is expressed differently. Which is the essence of intellectual property and copyright law- to protect expression, and allow others to create and build on existing work. Both these exhibits and the art installations within are likely to be individually, though narrow copyright protection would probably be afforded, to allow other creators to express color through such contemporary exhibits as well. Trademark registration, however, for any of the installations would mostly be impossible given the nature of the protected work.

Bibliography

Suggested Readings

About the Author

Atreya Mathur is the inaugural Judith Bresler Fellow at the Center for Art Law. She is a Master of Laws Graduate from New York University School of Law where she specialized in Competition, Innovation, and Information Laws, with a focus on copyright and art law. Atreya also co-founded m e r a k i consultancy, a consultancy service focused on academia and higher education in law, and additionally serves as a consultant at InvestIN Education for the New York Law Program. She graduated with her Bachelor of Business Administration and Law (BBA LL. B Hons.) from School of Law Christ University, India and hopes to create a niche for herself in legal academia. Atreya has a particular fondness for the art world, especially the controversial take of contemporary, appropriated, and derivative works, fascinated by the intellectual property and copyright implications of modern immersive art.


By Kelsey Clifford

On September 7, 2021, the United States District Court for the Southern District of New York dismissed an action brought by the Republic of Turkey (“Plaintiff”) against two defendants, billionaire Michael Steinhardt and Christie’s (“Defendants”), for the recovery of a millennia-old Antalonian Idol known as the “Guennol Stargazer” offered for sale by Christie’s in 2017 (the “Stargazer” or the “Idol”). The Stargazer–– one of only fifteen of these figures known to exist–– was purchased by Steinhardt in 1993 from art dealer J.J. Klejman and consigned to Christie’s twenty-four years later.

In April 2017, the Stargazer was hailed as the highlight of the Classic Week, featured in Christie’s “The Exceptional Sale” and reproduced on the cover of the accompanying catalog. Following the announcement of the impending sale, the Turkish government sent a letter to Christie’s asserting the Stargazer originated in and belonged to the state. On April 27, 2017, one day before the sale, Turkey filed a formal complaint in New York federal court to halt the sale, seeking to reveal the identity of the anonymous consignor and return the figurine to Turkey. The Petition/Complaint alleged that the Stargazer was illegally excavated and smuggled out of Turkey in the early 1960s, violating the 1909 Turkish patrimony law. Before the bidding the next day, Christie’s read a statement explaining Turkey’s claim to the Idol and that the buyer would have a right of cancellation. The Stargazer ultimately sold for $12,700,000, but the buyer never took possession. As a result, the Stargazer remained with Christie’s, pending legal ruling in the title dispute. Robust motion practice followed.

First, on September 30, 2019, the Southern District of New York ruled on the motion to dismiss brought by the Defendants. In Republic of Turkey v. Christie’s Inc. (the “2019 ruling”), the court denied Defendants’ motion to dismiss, allowing Turkey’s conversion and replevin claim to proceed to the present case. The court also granted Turkey’s motion for summary judgment on Defendants’ counterclaims of tortious interference with contract and prospective economic advantage. The 2019 ruling established a precedent that “prominently and publicly displaying a work . . . for great lengths of time does not bar claims for recovery.” In 2019, all parties agreed that the evidence showed the Stargazer was in near-constant display at the Metropolitan Museum of Art (the “Met”) for decades.

In April 2021, the court (with U.S. District Judge Alison Nathan presiding) held an eight-day bench trial to resolve the parties’ remaining claims, including where the right, title, and interest in and to the Stargazer was vested. The success of Turkey’s claim rested on showing the Idol’s presence in Turkey after 1906, following the Ottoman Empire’s enactment of its Decree on Antiquities (the “Decree”). The Decree provided that “[a]ll . . . movable antiquities situated in or on [modern-day Turkey] . . . are the property of the Government of the Ottoman Empire.” Turkey, the Empire’s successor, has used this law to assert ownership claims over numerous high-profile antiquities. Most notably, Turkey recovered the “Lydian Hoard” collection in its 1993 settlement with the Met.

Ultimately, on September 7, 2021, the court held that Turkey did not meet its burden of proof in establishing ownership of the Idol. Alternatively, the court found that the trial record “readily establishes that Turkey slept on its rights,” further precluding its recovery. The Stargazer’s prominent and public display at the Met did in fact work to bar Turkey’s claim. On October 1, 2021, Plaintiffs appealed the judgement to the Second Circuit’s Court of Appeals.

DISCUSSION OF THE LOWER COURT’S DECISION

In the 2021 decision, the Southern District of New York rejected Defendants’ arguments that the 1906 Ottomon Decree was unenforceable. Instead, it held that the law would have made Turkey the rightful owner of the Stargazer if Turkey could prove by a preponderance of the evidence that the Stargazer was discovered in modern-day Turkey after 1906.

The Location of the Idol

The Stargazer was “undoubtedly manufactured” in what is now modern-day Turkey. The Idol belongs to the Kiliya figurine tradition. Kulaksizlar, located in Turkey’s Anatolia region, is the only known manufacturing spot for Kiliya-type Idols. It was also undisputed that the Stargazer was likely created in the middle or late fifth millennium, between 4800 and 4100 B.C.E. Where the Idol went after its manufacture, however, was a mystery.

The first record of the Stargazer reappearing was in 1961 New York, thousands of years later, when art dealer J.J. Klejman sold the Idol to Alastair and Edith Martin. There was no direct evidence regarding the Stargazer’s path before this transaction or how Klejman came to possess the Idol originally. Additionally, answers to these questions were foreclosed by the relevant parties’ deaths.

With so little evidence of the Stargazer between its manufacture and 1961, the court relied heavily on expert witness testimony. The known find-spots of other Kiliya-type Idols supported the conclusion that Idols of its kind were likely traded or exchanged. The parties took very different views on how trade and travel networks in Kulaksizlar showed the Stargazer’s likely trajectory. Dr. Neil Brodie, Turkey’s witness, testified that there was no evidence of Kiliya Idols traded beyond Anatolia during the Chalcolithic period. Turkey argued that the Stargazer’s confirmed Anatolia origins, combined with the evidence of the limited scope of trade networks, supported an inference that the Stargazer was found in Anatolia after 1906. Defendant’s expert witness, Dr. Maxwell Anderson, took a more “expansive view,” testifying that trade and travel during the period could have reached what today constitutes Greece. His assertion was based on Greek tools in Kulaksizlar from the Paleolithic period– around 5,000 years before the Stargazer was created. The court was ultimately persuaded by Dr. Anderson’s testimony that trade and travel during that period could have reached the Aegean.

There was additional evidence of two Kiliya-type Idols existing outside of Anatolia in the 19th and early 20th centuries, before the Decree was enacted. “Taken together, this evidence establishes that the Idols were transported both during the Chalcolithic period and in the 19th and early 20th centuries.” The court concluded that on this record, the mere fact that the Idol was manufactured in Kulaksizlar was insufficient to warrant an inference that the Idol was found in modern-day Turkey.

Date of Discovery

The Stargazer’s modern provenance can be traced to 1961, when it emerged in New York. Although Turkey did not show the Idol remained in modern-day Turkey from its manufacture, it attempted to prove that it had to have been excavated from Turkey after 1906. Turkey’s argument rested on the date of the 1961 sale. It claimed that there was evidence that stolen or looted antiquities often arrived on the market quickly and that the Idol “would have been well-known had it been discovered before 1961.” Working against Turkey’s argument was that the two known Idols excavated from Turkey before 1906 did not generate significant attention. The court concluded that it was not necessary to “exhaust the universe of possibilities . . . because the mere fact that the Idol surfaced in 1961 [was] plainly insufficient to establish that the Idol must have been found after 1906.”

Turkey again failed to carry its burden of proof. In light of its inability to prove ownership under the Decree, Turkey’s claims for conversion and replevin failed.

DEFENSE OF LACHES

In the alternative, Defendants Christie’s and Steinhardt argued that even if Turkey had established an ownership right to the Stargazer, its delay in bringing its claim, despite being on notice, precluded its recovery under the doctrine of laches. To prevail on their laches defense, Defendants had to show that Turkey was aware of its claim, inexcusably delayed in taking action and that, as a result, Defendants were prejudiced. Under New York law, it is enough that a party should have known of its claim, and both parties’ diligence is considered in the analysis.

Turkey’s Awareness

The court held that Turkey should have known of its claim decades before it first took action in 2017 based on the Idol’s decades-long and near-constant display at the Met and its prevalence in literature beginning in the 1960s.

The Martins, owners of the Stargazer after Klejman, loaned the Idol to the Met for public display in 1967. The Idol stayed there for 25 years with very few interruptions. Notably, documents from the Met identified the Stargazer as being Anatolian. And, after Defendant Steinhardt acquired the Idol in 1993, he loaned it back to the Met in 1999, where it was displayed until 2007. Equally as important to the decades of display was the history of publications discussing the Idol. In 1964, literature was published discussing the Stargazer, identifying it as Anatolian, and indicating that it could be found in the United States. Several years before Defendant Steinhardt bought the Idol, the Stargazer was mentioned in Turkish publications by academics with connections to the Ministry of Culture. Significantly, the Ministry itself published a 1997 essay that identified the Anatolian Idol’s then-current collection.

The court concluded that Turkey, the state that claims ownership over all objects found within its borders, should have at least inquired further about the Stargazer. Turkey’s awareness of the Idol’s existence should have put it on notice of its potential claim. Yet, Turkey took no steps to ascertain whether it was entitled to ownership until Christie’s announcement. In its defense, Turkey argued that it could not be expected to inquire about any object around the world described as being Anatolian. Such an expectation, the court agreed, would be unreasonable. However, here the specific facts of the case did not compel such a broad conclusion: “there is evidence that government officials were made aware of this specific Idol as early as the 1990s, in contexts that described the Idol as being of Anatolian origin.”

Inexcusable Delay, Prejudice, and Diligence

Relevant to the prong of inexcusable delay was that Turkey failed to take any steps to even inquire about the origins of the Idol, how it made its way to New York, and whether it had any potential claim. “Such a failure to inquire or investigate is probative of inexcusable delay.” Further, the Met, a major public institution, did not hide the Idol’s collection. Still, Turkey failed to contact the Met seeking more information, which was “a relatively low bar” and “one that Turkey should have reasonably surpassed.” Therefore, Turkey inexcusably delayed in bringing the action against Defendants.

When assessing prejudice, courts consider “the decreased ability of the defendants to vindicate themselves, on account of the death of witnesses or fading memories and stale evidence, as well as the prejudice that may result from a change in the defendant’s position.” In this case, Defendants’ ability to adequately defend themselves was “unquestionably impacted” by the death of potential witnesses JJ Klejman and the Martins. Defendants could not seek evidence regarding how Klejman came to possess the Idol initially. Because such testimony could have supported Defendants’ claim that Turkey did not hold valid ownership over the Idol, the dearth of that testimony was prejudicial. Additionally, it was possible that if Turkey did not sleep on its rights before 1993, Defendant Steinhardt might not have purchased the Stargazer. Steinhardt purchased the Idol without any claims or expressions of interest by Turkey. The court concluded that this, too, was cognizable prejudice.

Lastly, in rebutting Defendants’ laches defense, Turkey argued that even though Steinhardt was a good-faith purchaser, the court should conclude that his lack of diligence as to the Stargazer’s provenance weighed against a finding of laches. The court pointed out that Steinhardt had no standalone duty to investigate as an ordinary purchaser, even if such a duty would attach to art dealers, museums, or other commercial actors. Further, the evidence showed that Steinhardt met with experts, had high regard for their experience and ethics, and relied on the Met’s good reputation and the known provenance of the Idol. Steinhardt was reasonably diligent in inquiring into the history and the origins of the Idol. Therefore, the defense was not precluded.

In sum, the court found that all elements of the defense supported a finding of laches. It followed that even if Turkey satisfied its burden of establishing ownership, it slept on its rights, which bars recovery under the doctrine.

CONCLUSION

The evidentiary difficulties faced by Turkey in this case are not uncommon for claimants in ownership disputes of stolen or looted antiquities. The decision in this case, if upheld on appeal, has garnered a lot of interest among the legal practitioners to say nothing of museums, collectors, and ministries of culture worldwide looking to recover their national patrimony. Since the decision, both sides have exchanged letters with the court as well as filed Memorandums of law and affidavits to stay or not the Judgment pending appeal. Most recently, on October 22, attorneys for Christie’s and Steinhardt filed an opposition to Turkey’s motion to stay the Judgment. Regardless of whether Turkey’s efforts are successful, “[t]hough the Stargazer now belongs to . . . Steinhardt, the court’s recognition of the 1906 Ottoman decree as vesting ownership of antiquities in the state of modern Turkey is a positive conclusion for future claims on looted antiquities.”

To read the decision, please click here.

  1. For a more in-depth description of the Stargazer, see David Jenkins, Case Review: Republic of Turkey v. Christie’s, CENTER FOR ART LAW (Apr. 30, 2020), https://itsartlaw.org/2020/04/30/case-review-republic-of-turkey-v-christies/. See also, Eileen Kinsella, A Hedge Fund Titan Triumphs Over the Nation of Turkey in the Legal Fight Over a Multimillion-Dollar Ancient ‘Stargazer’ Idol, ARTNET NEWS (Sept. 8, 2021), http://www.culturalheritagepartners.com/wp-content/uploads/2021/10/Stargazer-Case-Press-Coverage-Combined-PDF.pdf.
  2. The leading global auction platform. See The Guennol Stargazer — an Iconic Work of Art from the 3rd Millennium BC, CHRISTIE’S (Apr. 5, 2017), https://www.christies.com/features/The-Guennol-Stargazer-8195-3.aspx. While he lot has been removed from the Christie’s website, photographs of the Stargazer are still appearing on their website.
  3. Disputed Statuette, the Guennol Stargazer, Lost to Turkey, US Court Says, TRTWORLD (Sept. 8, 2021), https://www.trtworld.com/life/disputed-statuette-the-guennol-stargazer-lost-to-turkey-us-court-says-49806.
  4. Who Owns the Guennol Stargazer?, (Sept. 21, 2021), https://storymaps.arcgis.com/stories/791adbbb05f04d42b8d7c40123ffb8ac.
  5. See Defendants’ Memorandum in support of their Motion to Dimiss, https://www.courthousenews.com/wp-content/uploads/2017/08/christies-memo.pdf.
  6. 425 F. Supp. 3d 204, 215 (S.D.N.Y. 2019) [hereinafter the “2019 Ruling”].
  7. Supra note 4.
  8. Republic of Turkey v. Christie’s Inc., Case No. 1:17-cv-03086 (AJN), ECF No. 472 (S.D.N.Y. Sept. 7, 2021), https://casetext.com/case/republic-of-turk-v-christies-inc-3.
  9. Republic of Turkey v. Christie’s, Inc.— Federal Court Dismisses Turkey’s Claim for Ownership of Allegedly Looted Antiquity, SULLIVAN & CROMWELL LLP (Sept. 14, 2021),

    https://www.sullcrom.com/files/upload/SC-Publication-Federal-Court-Dismisses-Turkey-Claim-Allegedly-Looted-Antiquity.pdf

  10. Id. (describing the Lydian Hoard collection as “a collection of 363 artifacts illegally excavated and smuggled out of Turkey in the 1960s and eventually acquired by the [Met].”).
  11. Republic of Turkey v. Christie’s Inc., Case No. 1:17-cv-03086 (AJN), ECF No. 472 (S.D.N.Y. Sept. 7, 2021) (“Its size and near mint condition make it among the most exceptional examples of Kiliya-type idols known to exist.”).
  12. Id.
  13. Id.
  14. Id.
  15. Id.
  16. Id.
  17. Id.
  18. Id.
  19. Id.
  20. Id.
  21. Supra note 4.

About the Author:

Kelsey Clifford is a Fall 2021 Legal Intern at the Center for Art Law. She is currently pursuing a JD degree from the Benjamin N. Cardozo School of Law in New York. 


By Marissa Hong

When most people envision exhibited art pieces, they picture paintings or drawings hanging on white walls in a museum. Alternatively, an arts project called Bed & Breakfast showcases artists’ works in the bedroom of a personal household. Founded in 2012 and located in Los Angeles, Bed & Breakfast provides mixed media artists with the chance to put on their own exhibitions — repurposing the traditional private bedroom space and challenging the conventional way of viewing art. This article will dive into the question: but wait, how is this project made possible? More specifically, how is it financially supported? The answer: fiscal sponsorship. Through Fulcrum Art’s EMERGE Fiscal Sponsorship, Bed & Breakfast receives help in obtaining donations to maintain the project’s longevity.

What is Fiscal Sponsorship?

Fiscal sponsors are nonprofit organizations that are willing to serve as intermediaries between the source of funds and the artist. Specifically, they can provide artists or arts organizations with financial, legal, and/or administrative assistance for their projects.

Fiscal sponsorship occurs when a non-profit organization with a 501(c)(3) Internal Revenue Code tax-exemption status provides “fiduciary oversight, financial management, and other administrative services to help build the capacity of charitable projects.” In terms of the art world, arts organizations and artists have the opportunity to apply for fiscal sponsors when they have creative projects that they want to carry out, but do not necessarily have the financial means and lack a 501(c)(3) status. By having a fiscal sponsor, the group or individual would be able to receive charitable donations, foundation grants, or gifts that are only available for those with a tax-exemption status. When an organization agrees to fiscally sponsor an arts organization or artist, it will use their 501(c)(3) status to accept funds on the non-tax exempt group or individual’s behalf. The two most common types of models are pre-approved grant sponsorship and comprehensive fiscal sponsorship. In a comprehensive fiscal sponsorship, the sponsor owns the project; therefore, the 501(c)(3) organization becomes completely in charge of the project’s legal and fiduciary responsibilities. On the contrary, in a pre-approved grant sponsorship, the project is independent from the 501(c)(3) organization, which allows an artist to maintain ownership.

General Process

Of course, 501(c)(3) status arts organizations cannot fiscally sponsor every artist that approaches their group. In fact, many tax-exempt non-profits will choose who to fiscally sponsor based on a set of criteria. For example, most funding sources only agree to take on projects that align with their organization’s mission and purpose in order to avoid the chances of potentially having their 501(c)(3) status revoked. Additionally, some arts organizations require the artist to create non-commercial work and serve the public.

However, there are other criteria when choosing a fiscal sponsor besides fitting the description of a tax-exempt organization’s ideal candidate or meeting its requirements. Prior to submitting a project proposal to ask the charity for fiscal sponsorship, it is common to research the non-profit to ensure it is reputable, experienced, and offers appropriate assistance. Distinguished websites with comprehensive fiscal sponsorship programs already in place may suggest that the organizations have knowledge on the matter and an understanding of the relationship between a fiscal sponsor and the sponsored. As a result, the fiscal sponsorship process is more likely to run smoother and stay in check. Additionally, according to the Public Counsel Law Center, “it is very important to have a written agreement or memorandum of understanding signed by both the Sponsor and the Project before beginning to operate under a fiscal sponsorship to make sure that both the Sponsor’s and the Project’s rights and responsibilities are clear and to avoid any misunderstandings.” A written agreement or memorandum provides documentation of the sponsorship, which would be necessary to show if audited by the IRS or requested by a potential donor. For the artist’s or arts organization’s sake, it would provide exit provisions, preventing mistreatment, ambiguity, or confusion when the sponsored individual or group wants the sponsorship to end. Without written agreements, arts organizations and artists face the possibility of losing discretion and control over their creative project if they fail to create an adequate contract. Moreover, NEO Law Group suggests doing due diligence by reviewing the sponsor’s policies and fees mentioned in the agreement to avoid being unfairly treated throughout the fiscal sponsorship process.

Arts Organizations with Fiscal Sponsorship Programs

In the U.S. alone, there exist numerous 501(c)(3) arts organizations with comprehensive fiscal sponsorship programs already in place. Their websites include information such as eligibility, benefits, terms, and/or direct steps to applying for fiscal sponsorship online. Resources and tools are available to filmmakers, visual artists, dancers, and other creatives whose projects need assistance, particularly financial help, in order to either begin or sustain. Although 501(c)(3) non-profit organizations do monetarily benefit from fiscal sponsorship by receiving a small portion of the funds raised, they offer their assistance because they believe in the purpose behind the sponsored project and want to see the project fully fledged. Thus, prior to choosing a fiscal sponsorship program, arts organizations and artists should take into consideration their project’s intentions and goals. Once decided, it is then appropriate to choose a 501(c)(3) non-profit that best aligns with the project’s mission and suits its needs.

Here are just a few out of the many 501(c)(3) arts organizations with fiscal sponsorship programs taking applications:

Fractured Atlas

Fractured Atlas is a New York-based 501(c)(3) non-profit technology company with the hopes of making “the journey from inspiration to living practice more accessible and equitable for artists and creatives.” In addition to offering online donations and funds, its fiscal sponsorship program provides “free educational resources, constructive feedback on fundraising materials, and expert staff to help you achieve your fundraising goals.” Performance artists, such as Artistactivist’s Widowsweave project, and filmmakers, such as Jean Franco’s Cruel Modernity, are currently sponsored by Fractured Atlas.

Alliance of Artists Communities

Alliance of Artists Communities is an international 501(c)(3) non-profit arts organization with the mission “to advocate for and support artists’ communities, in order to advance the endeavors of artists.” Their website contains a step-by-step guide to applying for fiscal sponsorship with the Alliance, laying out what to expect before, during, and after signing the contract. Rather than working with specific artists, this organization sponsors art programs, such as the Golden Apply Art Residency in Maine and the Arteles Creative Center in Finland.

Fulcrum Arts

Fulcrum Arts is another 501(c)(3) non-profit arts organization located in Los Angeles with the mission to “champion creative and critical thinkers at the intersection of art and science to provoke positive social change and contribute to a more vibrant and inclusive community.” The group specifically helps with “crowdsourcing campaigns, including Kickstarter and Indiegogo,” provides “[a]ccess to a database of thousands of local, national, and international foundations,” and offers additional project resources.

The Women Make Movies Production Assistance Program

Lastly, The Women Make Movies Production Assistance Program is a New York-based 501(c)(3) non-profit feminist media arts organization that strives to “develop and support women producing independent media.” As a result of the program being limited to filmmaking, the criteria are more specific. For example, the website states that projects are chosen based on the strength of storytelling, distribution potential, quality of sample, and more.

While each of these arts organizations have their own specialized way of advocating for artists, they all acknowledge the power of fiscal sponsorship to help spread the stories and ideas of long-lived creatives. In the case of Bed & Breakfast, fiscal sponsorship plays a critical role in allowing for the project to continue flourishing over the many years. At the end of the day, all artists really want is to see their projects exist in this world. With fiscal sponsorship, they are one step closer.

List of Additional Fiscal Sponsorship Programs:

“Fiscal Sponsorship.” Arts Connection.

“Fiscal Sponsorship.” Brooklyn Arts Council.

“Fiscal Sponsorship.” Center for Independent Documentary.

“Fiscal Sponsorship.” National Endowment for the Arts.

“Fiscal Sponsorship.” NEO Creative. Inspired Philanthropy.

“Fiscal Sponsorship.” New York Women in Film and Television.

“Raise Funds as an Individual Artist or for an Emerging Arts Organization.” NYFA, (Sept. 29, 2021).

Nationwide Fiscal Sponsorship Directory:

“All Fiscal Sponsors.” Fiscal Sponsor Directory, Art Without Limits.

About the Author:

Marissa Hong is the Fall 2021 Development Intern at the Center for Art Law. She is a senior at the University of California, Los Angeles studying art and arts education. Marissa hopes to pursue a career in art law protecting the rights of living artists who generously share their ideas to the world. She can be reached at pvmarissa@gmail.com.


Image taken of Sadigh Gallery courtesy of Manhattan District Attorney’s Office

By Alexis Redshaw

On Monday, April 8, 2019, less than a week before the new Rosetta Stone exhibit was due to open at the Herbert Hoover Presidential Library and Museum (the Hoover), University of Iowa art history Professor Björn Anderson and graduate student Erin Daly went to preview the objects on display in preparation for the lectures they would deliver alongside the show. Once there, they both spent time walking around the exhibit and taking photos of relevant objects, all of which were on loan from the Origins Museum Institute based in El Paso, Texas. The exhibit consisted of authentic objects and replicas, so Daly and Anderson recognized that there was a degree of ambiguity in the way that the exhibit described both the original objects and replicas on display.

In a glass case showcasing seals, Daly started to notice something strange. One particular Old Babylonian stamp seal dated very precisely, from 1920 B.C., led her to do a closer examination. The seal appeared to have imagery from the Neo-Babylonian, rather than the Old Babylonian, period, making her suspicious of the date listed. Additional seals in the case seemed to have been carved in the same rough manner, which would be an improbable occurrence given the diverse artistry behind stamp and cylinder seals from the ancient Near East. While Daly was examining the seals, Anderson examined smaller busts that he had never seen before. When analyzing their particularly early dates, he wondered how he was never made aware of these objects in textbooks or other scholarly work. If the objects were made during those periods, they would have most certainly been discussed in texts highlighting their origin and influence.

IMG_0438 (1)

Image of fake Babylonian seal from “The Hoover” courtesy of Professor Björn Anderson

Later that day, as Daly described, she could not get the objects’ suspicious qualities out of her head. She began searching for more information using the date and key terms associated with the seal and landed on the website of Sadigh Gallery, established in 1978 and located on Fifth Avenue in New York. This gallery seemed to be the source for the objects in the Rosetta Stone exhibit, perhaps indicating that Sadigh had sold these objects to the lending institution, the Origins Museum Institute. Daly found other seals on the Sadigh Gallery website that were rendered in the exact style she saw at the Hoover exhibit. The stylings and dates did not align with what is historically known about seals, and Daly realized that all of these factors put together suggested the items on display were not authentic. In addition, the notion that seals created in such a similar style were currently for sale only furthered her suspicion that someone was forging these works. She subsequently emailed Anderson her concerns that the works were neither authentic nor even replicas, but complete forgeries.

In turn, Anderson took the exhibition catalogue provided at the Hoover and started going through the Sadigh Gallery’s website to make comparisons between the objects being displayed in the exhibit and the objects for sale by the Gallery. He was able to pair most of the exhibit’s objects to similar ones (some even identical) on the website that were offered for sale. While the denoted replicas displayed were appropriate to show in the exhibit, Anderson “determined that 90 of the 125 pieces [were] either definite or very likely fakes.” When surveying the website, he was able to see that one particular statue could be purchased in a variety of different colors and textures. Additionally, multiples of the same objects could be purchased at once with a quantity option included for each of the objects being sold. These aspects clearly discredited the “rarity” the objects being shown in the exhibit were purported to have.

Next, Anderson drafted a letter to the director of the Hoover, Thomas Schwartz, disclosing the evidence he and Daly found regarding the nature of the objects. This letter was sent three days before the opening of the exhibit to the public, and shortly thereafter, the Museum decided to cancel the exhibit, to prevent the suspect objects from being presented to the community. In addition to making the Hoover aware of these fake objects, Anderson contacted the FBI to alert the authorities of the potential fraudulent activities of the Sadigh Gallery.

Even though Anderson did notify the FBI early on in this case, he did not learn more information about their progress until the summer of 2021 when he was contacted by an agent from the New York County District Attorney’s Office Antiquities Trafficking Unit. Anderson was able to share with them the evidence he had compiled, and a few months later, he became aware that Michael, or Mehrdad, Sadigh, the owner of the Sadigh Gallery, had been arrested.

According to the Indictment filed by Nassau County and the District Attorney, upon arrest Sadigh was charged with:

with one count of a Scheme to Defraud in the First Degree, Penal Law §190.65 (1)(b); two counts of Grand Larceny in the Third Degree, Penal Law §155.35(1); two counts of Criminal Possession of a Forged Instrument in the Second Degree, Penal Law §170.25; two counts of Forgery in the Second Degree, Penal Law §170.10(1); two counts of Criminal Simulation, Penal Law §170.45(2); and Conspiracy to commit the same crimes as defined under Penal Law 105.05(1).

Subsequent information and images were released following Sadigh’s arrest, showing the internal workings of the Gallery’s fraud factory. These images suggest a repetitious, production-line quality of the seals, supporting Daly’s initial observation regarding the shared stylistic qualities of the seals on display at the Hoover. The photographs show shelves of objects with the tools and materials used in manipulating the appearance of the objects to look as though they were “ancient artifacts.” Sadigh eventually pleaded guilty to seven felony counts, admitting to his manipulation of objects and deceit towards his customers. After nearly forty years in business, on November 16, 2021, Michael Sadigh was sentenced to five years probation for his transgressions.

In Article 2

Image taken of the Sadigh Gallery courtesy of the Manhattan District Attorney’s Office

If you see something say something: Lessons to be learned from the Hoover Story

Everyday countless decisions are made in professional and personal lives. In the setting of museums and educational institutions, what to put on display and why, where should the objects come from and who should comment on the content can be automatic or political. The Hoover has a mission to represent and protect the legacy of President Hoover, while engaging with the community through the variety of exhibitions organized each year. The origins of the Rosetta Exhibit may be hard to define but the swift decision making on behalf of the museum administrators and the critical approach by Daly and Anderson led to the uncovery of a forgery ring.

In this particular case, the fake objects at the Hoover were loaned through an outside organization and not acquired by the institution itself. However, questions still surround what museums should do if they have acquired objects that turn out to be fake. The International Council of Museums states, “In disposing of a presumed forgery, [a] museum shall consider all related legal, curatorial and ethical consequences, and should avoid returning the object to the art market.” Therefore, a museum can deaccession a fake object but should not try to resell the item or prioritize giving the object to another institution. Even with the option to deaccess, a museum may not want to take that chance, as instances exist in which objects were deemed fake but then authenticated later, like in the case of a Velázquez owned by the Metropolitan Museum of Art. The decision regarding deaccession could be even more regrettable if the institution decided to have the work destroyed, which is an option when a museum has no other means of discarding the item, and the authenticity of the object was affirmed. However, some institutions see the destruction of fake works as a necessity in the prevention of further forgery, as was the case with a fake Marc Chagall work. Especially with fakes having a tendency to return to the art market, the solution to stop the pattern of fraud might boil down to deaccession then destruction.

In other situations, works may be prohibited from the deaccession process simply because they were donated to a museum as a smaller part of a larger collection. If the donors require that the gifted collection remain intact, a museum might be forced to keep the fake items within their collection by legal bounds unless they are given specific approval. However, owning fake items can be a way for museums to educate and bring awareness towards these issues surrounding forged objects. The Museum Ludwig in Cologne, Germany actually created an exhibition displaying authentic Russian avant-garde works next to those that were deemed fake. In doing so, the museum acknowledged their own struggles with instances of forgery, opening a dialogue around how these problems might be mitigated.

Even though a clear-cut solution towards settling a museum’s ownership of forged artworks can be difficult to determine, the prevalence of these issues that institutions, like the Herbert Hoover, face indicate a need for continued honesty and discussion around fake objects. This case was of particular interest for its connection to the University of Iowa, which I currently attend, putting into perspective how prevalent these issues of authentication can be, especially when so close to home.

Additional Reading:

Parker Jones, “Decades-long scheme exposed: UI professor and grad student uncover forged antiquities,” The Daily Iowan (Sept. 2, 2021). Available at: https://dailyiowan.com/2021/09/02/decades-long-scheme-exposed-university-of-iowa-professor-and-grad-student-uncover-forged-antiquities/.

Eileen Kinsella, “New York Dealer Gets Busted for Selling Hundreds of Brazenly Fake ‘Cookie-Cutter’ Antiquities, Says Manhattan D.A.,” Artnet (Aug. 26, 2021). Available at: https://news.artnet.com/art-world/manhattan-dealer-busted-selling-hundreds-fake-cookie-cutter-antiquities-says-manhattan-d-2002850.

Wallace Ludel, “New York dealer arrested for selling ‘cookie cutter’ manufactured goods as authentic antiquities,” The Art Newspaper (Aug. 25, 2021). Available at: https://www.theartnewspaper.com/2021/08/26/new-york-dealer-arrested-for-selling-cookie-cutter-manufactured-goods-as-authentic-antiquities.

Tom Mashberg, “Looking for a Stolen Idol? Visit the Museum of the Manhattan D.A.,” The New York Times (Nov. 22, 2021). Available at: https://www.nytimes.com/2021/11/17/arts/design/antiquities-manhattan-da.html.

Colin Moynihan, “He Sold Antiquities for Decades, Many of Them Fake, Investigators Say,” The New York Times (Aug. 25, 2021). Available at: https://www.nytimes.com/2021/08/25/arts/design/fake-antiquities-investigation.html.

Will Pavia, “Hoover Fakes dealer Mehrdad Sadigh sold trinkets as ancient artefacts,” The Times (Oct. 15 2021). Available at: https://www.thetimes.co.uk/article/hoover-fakes-dealer-mehrdad-sadigh-sold-trinkets-as-ancient-artefacts-xfctncg29.

About the Author:

Alexis Redshaw is a senior at the University of Iowa studying ethics and public policy on the pre-law track with minors in art history and philosophy. Alexis is interested in pursuing a career in art law and working with issues around provenance and forgery, as well as advocating for artists in their navigation of the legal world. She is the Center for Art Law’s Undergraduate Intern for the Fall 2021 term.


By Atreya Mathur

Flowers have an impact on human happiness. They tend to make things a little prettier or can even change the atmosphere to something more romantic. They cause excitement and they invoke emotion. Perennially, designers, including those with Alexander McQueen and Dior, include florals and designs inspired by nature in their spring and summer collections. Copyright law is intended to encourage creativity and aims to protect something original, including textiel designs or even photographs of flowers or floral patterns. It doesn’t seem too complicated, does it? But what about using flowers as a medium of creation? What about weaving dresses or making necklaces with live flowers as “wearable art”? Can creators copyright something that occurs naturally? Or art that is so short-lived? Can one use the scent of flowers and call it their own? Or how much of it do you have to transform to own something that never really belonged to you in the first place?

Several contemporary artists rebel against traditional art by creating art in the contemporary era with recycled, nontraditional, or natural materials. In Kelley v. Chicago Park District (February 15, 2011 in the United States Court of Appeals, Seventh Circuit) “Wildflower Works” were planted: two enormous elliptical flower beds, featuring a variety of native wildflowers and edged with borders of gravel and steel. Kelley’s creation was promoted as “living art,” and received critical and popular acclaim, but ultimately began deteriorating. The Park District then dramatically modified the garden, substantially reducing its size, reconfiguring the oval flower beds into rectangles, and changing some of the planting material. The district court ultimately held that Wildflower Works was both a painting and a sculpture but was insufficiently original to qualify for copyright. In another case, Kim Seng Company v. J&A Importers, Inc., (August 30, 2011 in the United States District Court, C.D. California,Western Division) the court held that a photograph of a bowl of Vietnamese food was not protectable under copyright laws. The court addressed the food itself as a “food sculpture” and decided that “because food is perishable, it cannot be considered ‘fixed’ for copyright purposes.” Often, such forms of conceptual art appear as an installation that may be underscoring modern art’s difference from traditional forms of art. By using different material and incorporating natural elements to make an artistic statement, conceptual artists create works that could potentially fall outside the scope of federal copyright protection. This could be because of the changing or transitory nature of such artwork as it may fail to satisfy copyright’s “fixation” requirement. Let’s look at the petals more closely.

Originality, Authorship and Fixation in Copyright

According to the Copyright Act, “copyright protection subsists in original works of authorship fixed in any tangible medium of expression.” The three statutory requirements for copyright protection derived from this definition are therefore originality, authorship, and fixation. It is also important to note that the Copyright Act protects “works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned.”

The most common issue with contemporary art, such as short-lived or temporary works, is that it exists in a form that is improvisational, changing, and transitory, or decaying, and doesn’t satisfy copyright’s “fixation” requirement. The Copyright Act defines a work as “‘fixed’ in a tangible medium of expression when its embodiment in a copy . . . by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Works that have not been fixed in a tangible medium of expression, works that have not been created by a human being, and works that are not eligible for copyright protection in the United States therein do not satisfy this requirement.

Williams v. Artic International (August 2, 1982 in the United States Court of Appeals for the Third Circuit) may be used to consider how courts have adapted the fixation requirement for works that contain changes. There the court rejected the defendant’s argument that the audiovisual displays of a video game could not be copyrighted for lack of fixation. The plaintiff was a video game manufacturer selling the game, DEFENDER, and Defendant was a competitor selling electronic components and circuit board “kits” that contained a game virtually identical to DEFENDER, called DEFENSE COMMAND.Williams registered three copyrightable works relating to DEFENDER: one in the program; one for the audiovisual effects displayed during the game’s “attract mode,” which played the same sequence in a loop; and one for the audiovisual effects displayed during “play mode.” The court stated that “the original audiovisual features of the game repeat themselves over and over,” and held that audiovisual works, even ones that change, may satisfy copyright’s fixation requirement “whenever the work is ‘sufficiently permanent or stable to permit it to be… reproduced, or otherwise communicated’ for more than a transitory period.” Williams held that the “images in plaintiff’s audio-visual game could be said to be ‘fixed’ in view of the fact that ‘new’ images generated or created by the video game each time attract mode or play mode was displayed were identical or substantially identical to the earlier ones.

Likewise, copyright law does not protect works that do not constitute copyrightable subject matter or works that do not contain a sufficient amount of original authorship, which may prove another issue for such artworks, especially if the material is naturally occurring and the artwork is subject to change because of nature. The question which would then most likely arise would be who the author of the work really is, if the artwork was changed or modified due to natural factors rather than intentional human intervention.

However, the U.S. Copyright Office will register a visual artwork that includes uncopyrightable material if the work as a whole is sufficiently creative and original. For a work to be original under copyright laws, it does not have to be new, novel, ingenious or aesthetically pleasing. The threshold for the “modicum for creativity” is low. A complicated arrangement of lights in twelve buildings, involving an ambitious conception would meet the low threshold of the originality requirement. Therefore, copyright protection would be granted to an artwork where there is originality, fixation and a modicum of creativity, regardless of how great the level of creativity is.

In addition, the Visual Artists Rights Act of 1990 (VARA) a part of U.S copyright legislation, specifically grants protection and exclusive rights to authors of “visual art.” VARA provides its protection only to artwork produced for exhibition, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist. The U.S. Copyright Office defines visual art works as (i) pictorial, graphic, and sculptural works, and (ii) architectural works. An artistic feature of the design of a useful article” “is eligible for copyright protection only if the feature (1) can be perceived as a two-dimensional or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated. Therefore, a work of artistic craftsmanship is a decorative or ornamental object that can be considered a “work of art,” even though it “might also serve a useful purpose,” if the utilitarian function can be separated from the artwork. The U.S. Copyright Office will register visual art works that are embodied in a wide variety of two-dimensional and three-dimensional forms. This list however is not exhaustive, and the Office will consider other forms of embodiment on a case-by-case basis. If an artwork therein satisfies the criteria laid down in VARA it may receive additional protection as visual art.

Application of copyright laws to contemporary exhibitions

In Kelley, the court considered whether an artist (using perishable media) could seek redress under VARA for alleged modifications of his work. In the end, the U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s decision that the flower bed could not be protected by copyright. Although not raised on appeal, the Seventh Circuit also addressed whether a garden was appropriately classified as a “painting” or a “sculpture.” Ultimately, the court concluded that neither classification was appropriate because by using the specific nouns “painting” and “sculpture,” limits moral rights protection to actual paintings or sculptures, not works that are “pictoral” or “sculptural” in some aspect or effect.

So, what about floral arrangements? It should be noted that “arrangements” may be copyright protected provided that they satisfy the prongs of originality, authorship and fixation as mentioned above. In Ansehl v. Puritan Pharmaceutical Co., plaintiff had composed a newspaper ad that featured a picture of an arrangement of eight toiletries. The defendant’s ad, almost an exact duplicate, included 10 toilet articles “arranged in much the same fashion as those shown in the plaintiff’s advertisement.” In holding that the defendant had infringed plaintiffs ad, the court stated that the defendants “could not appropriate the plaintiff’s advertisement by copying his arrangement of material, his illustrations and language, and thereby create substantially the same composition in substantially the same manner, without subjecting themselves to liability for infringement.” The threshold of creativity as understood even from this case is low. An arrangement does not necessarily have to be so complex to receive protection.

If this standard is applied to floral arrangements, satisfying the prong of originality for copyright protection may be relatively easier. However, fixation would require a more complicated analysis. Circling back to the cases of Kim Seng and Kelley, the court reasoned that “like a garden, which is ‘inherently changeable,’ a bowl of perishable food will, by its terms, ultimately perish.” Through these cases, however, a contrast may be drawn in understanding the rules of fixation- that the fixation requirement does not require permanence, but it may only exist for some non-transitory period. The key distinction between the work in Kim Seng and Kelley, is that the work in one was merely going to rot, over time, while the other was going to evolve; Kelley had purposely planted seeds that would create change across the seasons. It was the artistic intent of the creator that the work would change through the lifetime of the art. Kelley appears to have created a subcategory of works, ones that are “inherently changing.” This category is too broad, but it does give insight on the need for such work to be protected under copyright, despite the “fixation” concern, as the work continues to live in some form but evolves with the aid of nature. The selection of seeds and resources by the artist also seems substantial enough for authorship, though the court in the case did not think so. At least in the Seventh Circuit, copyright protection is unlikely to be conferred on landscaping installations or other living-type works in which the work relies on forces of nature to embody the work.

The Weather Project (2003) by artist Olafur Eliassons is another example of similar artwork that changes or evolves. It features representations of the sun and the sky, contained within the Turbine Hall in the Tate Modern in London. The work changes in connection with natural forces beyond the artist’s control, such as light and air quality, but it changes in ways that are predictable, and repetitive. Using mono frequency lights, projection foil, haze machines, mirror foil, the artist creates colors between light and dark, and the atmosphere grows more and less hazy throughout the day as the interior mist and fog gathers into cloud-like formations. Under Kelley, the work would likely be considered “inherently changing” and be denied copyright protection on the grounds that it lacked fixation. However, as per Williams, when a work’s changes occur within a framework that repeats “over and over,” it may qualify as “sufficiently permanent or stable” to be deemed fixed.

For a recent example of a contemporary floral exhibition, Fleurs de Villes (2021), New York, uses flowers to create experiential events, and produced an entire series of dresses made from flowers. These dresses were exhibited for breast cancer awareness and used particular arrangements of flowers for each dress created. Tina Barkley, Co-founder of Fleurs de Villes stated that one of the unique things about the exhibit is that every show they put up is completely different. “No two shows are alike and that is because the floral art is unique every single time: from the materials available to the design and composition.” “Each work is carefully planned and curated by the florist for our shows and when they are finished and on display for all to see, they are indeed art in their original form.” Every piece is unique, tells a story and represents admirable qualities of women around the world. Apart from the intricate detailing and design of each dress, one could also smell the scent of the different flowers used. These dresses seem likely to fall under the definition of “visual art” and although they are dresses which serve a utilitarian function, they would likely be protected as sculptures. The utilitarian feature of the dress would not be protected but the arrangement of the flowers which could likely be separated from the useful features of a dress could fall under copyright protection.

Photos taken at Fleurs de Villes, Hudson Yards, New York (2021) by Atreya Mathur

In this example, it does not seem like these dresses are a typical floral arrangement. Although the flowers may dry up and the art may change or “evolve”, it is likely that these floral dresses could be protected, as they satisfy the criteria for copyrightable subject matter if Kelley is reinterpreted by the courts. The artwork undeniably satisfies the low threshold required for creativity and originality. Authorship could also be attributed to the creators of the pieces. This seems different from the case laws discussed earlier concerning garden sculptures where the weather or environment could alter the artwork and challenge authorship. Here, there are no additional factors or authors that could affect the work. Further, fixation to a tangible medium of expression may also be satisfied as the dress is placed onto a mannequin and is therein sufficiently stable to be perceived by the senses for a period of time. Therefore, the exhibit is likely to be an original work of authorship, which enjoys a modicum of creativity and is affixed to a tangible medium of expression.

Further, as visual art, the artwork could be considered as a sculpture under VARA. The list in the Compendium as mentioned earlier for what the Copyright Office might consider visual art is also not exhaustive. Although flowers are not expressly stated in the list, there is also nothing that prohibits them for being considered as visual art. The fact that each piece is unique also satisfies the criteria to be considered visual art under VARA, that the artwork is for exhibition only and exists in a single copy. Therefore, if the exhibit were to be considered on a case-to-case basis, it seems likely that it could fall under the ambit of a work of visual art as well. This may be both similar or different to Kelley depending on the interpretation of the changing art. Would the drying up of the flowers be more like the “rotting” food in Kim Seng or would it be “evolving” like in Kelley? But then again, neither of the artwork in the cases ultimately received copyright protection. Regardless, Fleurs de Villes, may have a higher chance at copyright protectability.

Conclusion

While through past case laws it may be understood that copyright is generally not granted to a naturally occurring effect, analyzing contemporary exhibits independently, may potentially result in a different outcome. A reinterpretation of the fixation requirement for contemporary art based on artistic intent may be helpful to provide the protection such artwork deserves and further the purpose of copyright protection. This type of artwork seems unique in the sense that it is vastly available to the public and encourages creativity with naturally occurring substances. If this work is not protected or given value by copyright, it could negatively affect the creation of similar forms of artwork which is enjoyed by the public. This does not mean that others cannot create similar artwork. Granting copyright protection to a single exhibit would mean the expression is protected, not the idea. Other creators would be free to design dresses made out of flowers or create from other natural materials. Granting copyright protection in this aspect would instead reinforce that this art falls under the ambit of protected art and likely be considered visual art by which VARA rights could be attributed. More than anything, it could promote creativity among artists to create such artwork knowing that the work is protected by law. Even if broad protection cannot be given to such installations, recognizing the work as art, and providing “thin” protection would still be a positive step forward to protect modern and contemporary artwork. Regardless of whether copyright protection is ultimately granted or not to such work, ephemeral art gives the viewer happiness and should be enjoyed for the time being.

Suggested Readings

Additional Cases

  • Baker v. Selden, 101 U.S. 99 (1879)
  • Bowen v. Yankee Network, Inc., 46 F. Supp. (D. Mass. 1942)
  • Gardenia Flowers, Inc. v. Joseph Markovits, Inc., 280 F. Supp. 776 (S.D.N.Y. 1968)
  • Leon v. Pacific Tel. & Tel. Co., 91 F.2d 484 (9th Cir. 1937)
  • Prestige Floral v. California Artificial Flower Co., 201 F. Supp. 287, 290 (S.D.N.Y. 1962)
  • Meltzer v. Zoller, 520 F. Supp. 847, 855 (D.N.J. 1981)
  • Murray v. Gelderman, 563 F.2d 773, 775 (5th Cir. 1977)
  • Reyher v. Children’s Television Workshop, 533 F.2d 87, 90 (2d Cir.)

About the Author

Atreya Mathur (NYU Law, LL.M 2021) is the inaugural Judith Bresler Fellow at the Center for Art Law. She specializes in Competition, Innovation, and Information Laws, with a focus on copyright and art law. Atreya has a particular fondness for the art world, especially the controversial take of contemporary, appropriated, and derivative works, fascinated by the intellectual property and copyright implications of modern immersive art.


M. Dougenis, Poor Butterfly (1986)
(Photo credit: https://sagharborexpress.com/)

Miriam “Molly” Dougenis is an award-winning figurative artist who has been working in watercolor since the early part of her art career. Molly’s artwork has been exhibited in a number of galleries and museums such as Peter Marcelle Gallery, Gerald Peters Gallery and Sag Harbor Whaling and Historical Museum. Her work has also been exhibited in several shows and galleries in New York as well as small museums around the country.

Molly is over 90 years young and she has been very organized about her art and her estate ideas. Claude Ponsot, her Art Professor at St. Johns University, recommended that Molly start taking pictures of her work to create a record of her work, after which she numbered them in a catalog system. A long time ago she also decided to leave her estate, including her art and copyright to her works, to an animal-rights charity. Molly remembers being taken aback when her longtime dealer, more about him later, asked her to leave him her art after she dies.

This Winter, Center for Art Law (CfAL) spoke to Molly to learn more about her artwork, inspiration, estate plans and experience in a legal case she initiated against a gallery owner in the New York Supreme Court. In this interview, Molly shares some insights into artist-dealer relations from the artists’ perspective in the legal-art world.

Molly was married to an attorney, and that is why, perhaps she was not discouraged when she was unable to recover her art from a gallerist who represented her for a number of decades. She did not get even, she got a lawyer. Three in fact, to try and recover either her consigned and now missing pieces or compensation for her work (and legal fees).

This piece is an interview of Molly taken by Atreya Mathur. Answers have been written and edited by Atreya for the purpose of this article.

CfAL: What kind of artwork do you enjoy and who would you say are your inspirations in the creative process?

Molly: I am a watercolor artist and I particularly enjoy creating still life artwork. I was very influenced by the art of Charles Demuth (1883-1935), an American artist who lived in Lancaster, Pennsylvania and painted still lifes of subject matter gathered from his mother’s garden such as flowers, fruits and vegetables. His other subjects were buildings, lettering such as in the work, “I Saw the Figure Five in Gold.” He also did a series of sailors.

M. Dougenis, Dockside (2020)

CfAL: What do you love the most about creating with watercolors?

Molly: I love how this form of artwork allows one to arrange it themselves, and change things around to suit their own artistic style. An artist has the power to change what is there to suit their own taste and desires.

CfAL: Any other artists you have drawn inspiration from?

Molly: I have also been inspired by Edward Hopper (1882-1967) an American realist painter, when painting landscapes with houses influenced by his work, and by Winslow Homer, an American landscape painter whose work is rugged and speaks to danger and death. I also find inspiration in the works of French painters, Monet (1840-1926) and Cezanne (1839-1906). My works include landscapes and seascapes as well as floral still life.

CfAL: How did you begin as an artist, what is your story?

Molly: I have always been passionate about art and creating. My first formal art classes were at Bayside High School on Long Island. I not only took the allotted one year of art but prevailed upon my Grade Advisor to allow me to take art classes for the entire four years of high school. He had suggested I take math instead. After finishing high school, since I worked at Conde Nast Publishing (Vogue, Glamour, and House & Garden), I was able to take classes at nearby Hunter College and drawing classes and watercolor as well. My drawing teacher was impressed with my drawings and strongly suggested I continue with art.

CfAL: Was this a professional course? How did you find art teachers to help you learn through your journey as an artist?

Molly: I was able to find good art teachers on my own: Ed Whitney, who taught at Pratt University in Brooklyn; Claude Ponsot, Art Professor at St. Johns University; and Paul Wood who taught art in his own private school in Port Washington, N.Y. From these three art teachers who were also artists in their own right, I learned most of what I needed to know. All three based their teachings on theory: Ed Whitney taught theory of art in general with a specialization in watercolor, Ponsot based most of his classes on good drawing and the modernists and Paul Wood on contemporary and abstract art with a grounding in art history.

Winslow Homer, A Huntsman And Dogs (1891)

As mentioned, I was inspired by Winslow Homer, and during class I would speak about him. Homer’s work was characterized by death and danger. One of the students was not fond of this type of work and did not want their artwork to speak to death or danger. I believe that even if there are certain elements that an artist does not want to cover, it is important to try to understand the artwork to let it influence one’s own work.

CfAL: Where has your work been exhibited and when did you begin showcasing your work?

Molly: I started showing my work pretty much right away as I was taking classes and heard about small shows in the area including Huntington and in Nassau County. This encouraged me to work more. My work has been exhibited at several galleries and museums such as Gerald Peters Gallery and MM Fine Art in New York. My artwork has also been showcased in small museums around the country. My first piece to be offered at auction was “Dockside” at Capsule Gallery Auction in 2021.

M. Dougenis, Arrangement (Rigging) (1987)

CfAL: What is the background of the case you filed in the New York Supreme Court?

Molly: I brought the case to court in 2018. Peter Marcelle, a gallery owner, who first had Hampton Road Gallery, Peter Marcelle Gallery, and then Peter Marcelle Project, failed to return a number of my consigned artworks. Marcelle accepted my works on consignment for various art shows and never returned the artwork. He showcased and sold my work for over 20 years. He went on to use different names for galleries and never retained the same name for any gallery for too long. Through this he was able to sell the artwork without informing me. It actually all began with my painting, “Arrangement” (as pictured above). I brought the painting to the Hampton Road Gallery and I could tell that Marcelle liked it so he immediately put it in the window. A week or so later I dropped by to find out what happened. He told me he “sent it out to be reframed” and then immediately changed the subject…and I couldn’t get him to get back to the painting. I’m still very sorry I ever brought it to the gallery in the first place…that I’d never see it again and I’ll never have the use of it as my own work, to exhibit elsewhere, sell on my own or even donate to a museum of my choice. This is the main reason I decided to go after him legally. I wanted my work back. I wasn’t interested in the money. It was the work I wanted. So I got a lawyer.

CfAL: How did you find lawyers to take on your case?

Molly: Through a fellow Hampton’s resident and an art attorney, Carol Steinberg, got in touch with Irina Tarsis, the founder of Center for Art Law. Irina has litigated similar cases on behalf of artists against galleries who did not return consigned art, in violation of New York Artist- Dealer Relationship laws, and Irina brought action on my behalf in the New York Supreme Court.

(Note: According to NYACA law, dealers must hold consigned property from artists in trust and artists, if successful in their efforts, are entitled to collect legal fees (N.Y. Arts & Cult. Aff. Law § 12.01)).

CfAL: What was the final judgment?

Molly: Together with Irina and another litigation attorney, Jordan Greenberg (of the Manhattan-based law firm of the same name), we worked for three years in the hope of getting back the artwork or receiving the income made from the sale of my work. We went to trial and the jury elected to award $27,900 for nine missing payments. The judge finally ordered that Marcelle was responsible for the theft of my artwork. A year later, in 2021, the court also ruled that Marcelle must pay for my legal fees.

(Both judgments and interest due on them still remain unpaid and the dealer is now in contempt of the court, facing risk of arrest. You can read more about the case HERE.)

CfAL: Can you describe your experience of filing a suit in court? What were some of the challenges you faced?

Molly: Going to court is not an easy task and initiating an action in court is a time-consuming process. It is especially tough for artists who put in effort in their paintings and do not get them back. Regardless of the effort required, my advice is to go after the person who has stolen an artist’s work and have them questioned and arrested. It can be an expensive process but there are plenty of ways to fund efforts with an attorney, including websites specifically designed to help artists who require money for an attorney. I believe it is important to obtain a judgment against them to ensure that appropriate legal punishment is awarded. I received advice to get word out and write an article that would bring awareness to the case. While I did write a piece, it was amidst the beginning of the Coronavirus Global Pandemic, and it did not get enough reach or attention.

It is also very likely that Marcelle and other gallery owners do this to several artists at a time, which makes it all the more pertinent to go after them. One of my friends who is a sculptor faced a similar issue when he went to pick up his work from a gallery only to find the gallery completely empty.

CfAL: What is your advice to artists who are in a similar situation?

Molly: My advice to artists is to be cautious and have them sign a consignment sheet. I had done the same when someone came to pick up my artwork. I asked for a document which they did not have. I then created this consignment sheet which worked in my favor to obtain a judgment against Marcelle. Many artists simply hand over their work, which is a dangerous thing to do. The judge in my case felt like there should be something in writing, which I fortunately had. I advise other artists to ensure that there is written proof of the work being taken and there should be documentation and contracts when required.

CfAL: Final question, what are your thoughts about estate planning and wills? Is it necessary for artists to have a will?

Molly: I believe that artists ought to have a will. My artwork, in my will, benefits a charity for small animals. I faced no challenges in the process and worked with an attorney to draft the will. Having a will makes it easier to decide what happens with an artist’s work after their death and to whom the work would belong.

It can be a difficult decision to include artwork in one’s will based on the artist itself and what an artist thinks of their artwork. There are thousands of skilled artists, some good, some world famous, some who produce quality work and other artists whose work may not be as well-known or commercially impressive. “As an artist you really have to understand that if your work is not good, no one will want it…you must make sure that you do not give your work to a cause that may not want it at all.” An artist should be careful in giving their work to those on whom it would not be a burden.

Center for Art Law would like to thank Molly for taking the time to speak with us and share her inspiration and experience to help guide other artists in similar positions.


Used with permission, University of Iowa Office of the State Archaeologist

By Alexis Redshaw

In 1971, Maria Pearson (Running Moccasins) would learn shocking information from her husband, John Pearson, pushing her to make changes that would fundamentally impact the art and museum world in their treatment of Indigenous remains and objects. John, an engineer working for the present day Iowa Department of Transportation, learned about construction occurring near the city of Council Bluffs, Iowa, where a highway was to be built through a cemetery. To address the issue of reburial, the State Archeologist team was tasked with relocating those buried in the cemetery; however, not all of the excavated human remains were treated equally in this process. Of the twenty-eight remains found in the cemetery, two were singled out amongst the group. While the twenty-six bodies found of white individuals were reburied in a different cemetery, the remains of an Indigenous woman and her infant were transported to the Office of the State Archeologist for scientific use.

Maria belonged to the Sioux Nation. She was upset and stunned to learn her ancestors’ remains were treated in such a prejudiced and disrespectful way. This news would prompt her to travel to Des Moines, Iowa, arriving in Indigenous regalia to address the governor about the discrimination and mistreatment of Indigenous remains and cultural heritage occurring in her state.

Within Indigenous customs, an individual’s spirit is always connected to the body. In effect, when a buried body is removed from its resting place, the spirit tied to those remains is disturbed, as well. This notion became the root force behind Maria’s successful advocacy in not only getting the Indigenous woman’s and infant’s remains from the construction site reburied but also in developing legislation in Iowa to solidify this standard. She would go on to collaborate with Governor Robert D. Ray and “legislators, archeologists, anthropologists, physical anthropologists, and other tribal members to spur legislation guaranteeing equal treatment of non-Indian and Native American remains.” This initial Iowa law, titled the Iowa Burials Protection Act, served as the premiere legislation around the repatriation of Indigenous People’s remains, leading to the creation of specific cemeteries dedicated to serving as their final resting place.

Maria’s Legacy in Practice

On a larger scale, Maria’s efforts would become “instrumental in the passage of important federal legislation, most recently the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990.” NAGPRA both outlines the rights Indigenous groups have toward Indigenous remains and culturally significant objects, as well as the processes necessary for Federal organizations, including museums, who own these items to disclose and repatriate those that need to be returned. In doing so, NAGPRA emphasizes the honor that all human remains deserve and further facilitates repatriation discussions between Indigenous groups and the institutions that hold Indigenous remains or cultural items. The significance of this Act is only amplified when considering its development at the congressional, federal level. Now, it is more than just one state that is held accountable for the respectful return of Indigenous remains and culturally significant objects. With NAGPRA, the United States has acknowledged the nationwide importance of repatriating these pieces of Indigenous heritage. Every federal institution is held under its purview, showing the scope of change Maria was able to achieve in the United States.

The results of NAGPRA are being seen within the art world today, such as in the Mississippi Department of Archives and History (the MDAH). This particular situation involved the repatriation “of 403 sets of Native American remains, as well as 83 lots of funerary items.” Originally taken from the Mississippi Delta and areas near the Yazoo and Yalobusha rivers, these objects and remains were finally returned to the Chickasaw Nation in March of 2021. The Chickasaw ownership stems from the age of the remains, which “range from 750 to 1,800 years old, making them the historic purview of the Chickasaw Nation.” This return process is tied to the legislation of NAGPRA, ensuring that a federally funded institution, like the MDAH, gives Indigenous remains and cultural objects back to the rightful Indigenous owners. In addition, this scenario demonstrates NAGPRA’s emphasis on Indigenous groups having the direct right toward their ancestor’s remains and cultural objects, not the museums or institutions that currently house them. Both this right and the collaboration between MDAH and the Chickasaw Nation are rooted in the federal policy of NAGPRA developed by Congress.

While this poignant example shows the beneficial aspect of NAGPRA, much more needs to be done in the repatriation of Indigenous remains and significant cultural items. As mentioned in the New York Times, as of August of 2021, around one hundred sixteen thousand Indigenous remains are in the collections of various organizations within the United States. Fortunately, the Biden administration and Secretary of the Interior Deb Haaland, an Indigenous individual, are working to simplify the conditions of NAGPRA. The repatriation process can be greatly deterred by the expenses required and the convoluted standards developed by organizations currently owning these items, including the amount of evidence requested to prove which group objects must be repatriated.The current administration can facilitate the process of return for the one hundred sixteen thousand Indigenous ancestors needing a final resting place through regulatory adjustments to expedite repatriation proceedings.

These efforts are all rooted in the actions of Maria Pearson, who has since become known as the “Rosa Parks of NAGPRA” for the spark she ignited by developing legislation in Iowa, and subsequently the entire United States, to protect the remains and objects of Indigenous Peoples. The art and museum world is now confronted with laws of Maria’s legacy, as seen with the example of the Mississippi Department of Archives and History. In the future, Maria’s legacy will live on as greater efforts are taken to repatriate those items belonging to the Indigneous Peoples of the United States.

About the Author:

Alexis Redshaw is a senior at the University of Iowa studying ethics and public policy on the pre-law track with minors in art history and philosophy. Alexis is interested in pursuing a career in art law and working with issues around provenance and forgery, as well as advocating for artists in their navigation of the legal world. She is the Center for Art Law’s Undergraduate Intern for the Fall 2021 term.


Martha Szabo, Model, Art Students League, circa (1990) (top left); Martha Szabo, Model, Art Students League, (1991) (top right); Martha Szabo, Model, Art Students League, circa (1990) (bottom left); Martha Szabo, Model, Art Students League, (1991) (bottom right)

By Scotti Hill

While many consider the greatest art to be those works which thoroughly transport us into a world of the artist’s creation, a less common and often more profound experience arises from art that forces us to reconsider that which we think we already know. The abstract, spirited paintings of artist Martha Szabo achieve just that—a ticket into the vision of an artist whose experimental practices lay claim to her modernist inspirations, yet whose artistic identity remains uniquely her own, and whose views of one of the world’s most iconic cities manifests a novel approach to a much beloved subject.

In 1957, having survived the Holocaust as a teenager, Szabo arrived in New York City from her native Hungary, and quickly assimilated into the artistic vibe of the Big Apple, by actively contributing to the spirit of abstraction and experimentation that was percolating through the modernist movements around the globe. As a result, her work embodies a lively dynamism that enchants both the curious novice and the trained eye alike. Indeed, it’s the latter who possesses the keen awareness of the skill required to manage a composition of such varied painterly brushwork and impasto.

After all, there is much artistic power in the act of suggesting rather than merely illustrating.

Born in 1928, Szabo endured tremendous hardship during World War II and under the Communism that set in with the fall of the Iron Curtain. At the age of sixteen, she was forced from her home and imprisoned in a Nazi labor camp in Austria. After the war, she lived in Budapest where she earned a master’s degree from the Hungarian University of Fine Arts and experienced the Hungarian avant-garde’s second wave. While she and her husband George Szabo, who later became the curator of the Robert Lehman collection at the Metropolitan Museum of Art, arrived in the United States as refugees, each went on to contribute prolifically to their adoptive country in their respective fields.

Just as her native Hungary was a pivotal site for Szabo’s personal and creative growth, New York City would become part of her very identity, the place where she found great purpose and peace; where prior to the Second World War, the impact of European Modernism had already taken place. As evidenced by events such as the 1913 Armory Show and the American Abstract Artists (1936) a collective focused on promoting the role of abstract art through community engagement and scholarship, Szabo arrived to witness first hand the first truly American modern art movement—Abstract Expressionism.

The rich skyline of New York City became Szabo’s muse, a subject which she explored through countless iterations during an incredibly fertile period of activity from 1957-1987. Her 21st floor artist studio in New York—replete with magnificent views of the city and optimal sunlight—became a site of reflection and inspiration. Some of Szabo’s most important works would be stunning paintings of the New York skyline from this site, solidifying and keeping alive in striking two-dimension, a remarkable moment in time—New York in the 1970s—scenes of what Szabo refers to as “the souls of transformed buildings celebrating.”

Martha Szabo, Neon City (1974)

One such work is a painting entitled Neon City. A sensuous scene which features mysterious silhouettes in front of a large building, set aglow with bright yellow lights offset by the majestic blue of the night sky. Other works in the series similarly depict the New York skyline—in thick, painterly brushstrokes feverishly laden as though placed with a palette knife—atop magnetic sunsets. Elsewhere in the collection, a neatly painted building slices horizontally through the composition to create long dark shadows on the street below. The cityscapes in this and other series of hers reveal an underlying fascination with the act of painting itself, as well as the geometric abstraction evident in the industrial metropolis.

In her mastery of the formal elements of color, texture, and composition, Szabo captures the ephemeral moments our psychology links to contentment, the sensations of which we often try, but fail to memorialize.

Szabo was—and still is—a member of the Art Students League, where she took a master class with Hananiah Harari, a groundbreaking founder of the American Abstract Artists, known for a wide stylistic range, and who studied with modernist icon Fernand Leger from 1932-1934.

Martha Szabo, Harari Class, (1991)

Szabo’s painting, Harari Class, a portrait and self-portrait study, which features a group of standing and sitting figures, captures the moment in the two artists’ lives where they worked simultaneously in the same studio at the League. The precision of her strokes, applied thickly and with bold color, demonstrate an artist deeply committed to the visual possibilities of abstraction. Just as Harari’s work took inspiration from the iconic stylistic characteristics of Cubism, Surrealism, and Fauvism, so too does Szabo’s experimentation reference earlier trends of expressionism while retaining signature traces of the artist’s own style. In 1990, Harari would curate a group show of work made in his class, including Szabo’s.

Szabo created a series of portraits while a member of the League, many of which contain the same penchant for loose Expressionistic brushwork. Her portraits from this period reveal the intensity of an artist who moves quickly to capture her subjects, someone whose underlying mastery over her medium bestows upon her subjects a certain energy and life.

Martha Szabo, Self Portrait with Model at Art Students League (circa 1990) (selected for exhibition by H. Harari)

“In her paintings of the League, made at the League, Martha reveals a tremendous ahead-of-its-time spirit of inclusivity and equity, depicting women, men, and the gender-ambiguous, people of color, Asians, Caucasians, older people, younger people… in these paintings, everyone plays a part, and everyone is equally compelling,” explains her daughter Julia Szabo.

Now, Szabo’s work resonates as much as it did when it was first created. It gives us an important glimpse into simultaneously intimate and grandiose moments, inviting us to pause for moments of reflection in a city of infinite sensations. There’s a definite meditative quality to her works, allowing for multiple gazes and rendered tantalizing by the anthropomorphic nature of the city’s structures. Indeed, to see the city and the world through Szabo’s eyes is a gift.

Scene at Art Students League, Martha Szabo, circa 1991 (left); Scene at Art Students League, Martha Szabo, circa 1991 (right)

Now in her early nineties, Martha is forgetting a lot about her vibrant life in New York and her upbringing in the old world. Whereas Martha’s husband passed away, having finished a number of important catalogs and studies of other artists, it is Martha’s daughter Julia who is undertaking the project of archiving her mother’s work and preserving her legacy through critical narrative and contextualization of her mother’s work among contemporary art trends. While some may view such a gesture sentimental, it indeed parallels a larger push within the humanities and the discipline of art history to recognize women, immigrants, and non-white artists whose work has contributed so much to our understanding of American art. Doing so creates, not an alternate history of American modernism, but in fact a more accurate chronology of our shared artistic tradition. For an artist now losing her sight, it is fortunate to be able to study her works and see what she has seen, witness perpetual intrigue and curiosity amid scenes of remarkable intimacy and the sprawling urban expanse.

Pictured above, Martha Szabo at Art Students League circa 1990, next to a painting of Martha by another artist and Martha’s painting below (left); Model at Art Students League, Martha Szabo, circa 1990 (selected for exhibition by H. Harari) (the painting as featured in the accompanying image) (right)

Learn more about Martha Szabo and view her paintings here: https://marthaszabo.com/

Center for Art Law would like to thank Julia Szabo for taking the time to speak with Scotti Hill and the Center, and share Martha’s story for the feature.

This article is being produced in connection with the Estates Planning Clinic that explores artistic legacy questions and has been worked on by Atreya Mathur.

About the Author

Scotti Hill (she/her) is a Utah-based art critic, curator, and lawyer. In addition to teaching art history at Westminster College, she’s a staff writer for 15 Bytes: Utah’s Art Magazine and a contributor to Southwest Contemporary. She has written for the Deseret News, New Art Examiner, and served as a legal intern at the Center for Art Law in 2016.