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Practices

Art Law Practice   

  What is Art Law?
 
The legal structure we call art law (an amalgam of personal property law, contract, estate, tax and intellectual property law) supporting the acquisition, retention and disposition of fine art, often fits uneasily with art market custom and practice. The result is that 21st century art market participants are frequently unsure of their legal rights and obligations.
 
CL&M’s Art Law Practice Group is engaged in high-profile work in the art law field. We advise clients on all legal matters related to the acquisition, retention and disposition (by sale, gift or devise) of fine art and rights to works of fine art. Our clients include artists and their estates, art museums, art collectors, art dealers, art experts and artist-established and family foundations that own art or are otherwise active in the art world.
 
Buying and Selling Art 
  • We advise buyers and sellers, at public and private sales, on title and authenticity questions as well as the substance and form of the agreements by which ownership is transferred, including contractual warranties, representations regarding authenticity and provenance, condition reports, and licensing of images of copyrighted artwork.
  • We advise consignors at public auction with respect to important provisions of the auction house consignment agreement, such as the auction house right to rescind an auction sale long after the auction. 
  • We also advise buyers at public auction concerning their after-purchase rights vis-à-vis the auction house and the consignor, including warranties of authenticity and title.
  • We advise art merchants, artists and artists’ estates with respect to their rights and obligations under New York’s Arts and Cultural Affairs Law, which establishes distinctive and non-waivable rights for artists.
Litigation and Dispute Resolution
 
The Art Law Practice Group represents buyers and sellers in litigated and non-litigated disputes over authenticity, ownership and value of works of fine art and the proper use and possible infringement of copyrighted works.  We represent owners in disputes with insurers regarding compensation and valuation of losses for lost and damaged artwork. We also defend experts against claims relating to their art authentication and attribution opinions.
 
Recent significant litigation victories involving ownership and authenticity of art include:
  • Persuading the New York Court of Appeals to reverse a unanimous Appellate Division decision and to reinstate the summary judgment of the Surrogate’s Court awarding ownership of The Cry, a monumental Jacques Lipchitz sculpture, to our client, a Canadian art collector. Mirvish v. Mott, 18 N.Y.3d 510, 942 N.Y.S.2d 404 (2012).
  • Obtaining summary judgment in favor of the renowned artist, Robert Indiana, creator of the iconic LOVE sculpture, dismissing Lanham Act and contract claims asserted by an art publisher who claimed the right to produce and sell, as works of Robert Indiana, artwork depicting the Hindi word for “Love” in both the Hindi and English alphabet. This case involved issues relating to how much artist involvement is required to represent sculptures as authentic works of the artist. Gilbert v. Indiana, 2012 WL 688811 (S.D.N.Y. 2012) (Judge Katherine B. Forrest).
  • Securing dismissal of a related claim against artist Robert Indiana brought by a Monaco art dealer who had purchased the so-called “English Prem” works that were at issue in Gilbert v. Indiana, described above. Successfully removed a case that was initially filed in Maine state court to federal court in Maine, and then successfully moved to transfer to the federal court in the Southern District of New York, where it was decided by the judge who previously dismissed claims relating to the same artwork in Gilbert v. Indiana. Tovar v. Indiana, 2013 WL 182749 (S.D.N.Y. 2013) (Judge Katherine B. Forrest).
  • Establishing that the standard for evaluating an art merchant’s express warranty of authenticity to a non-merchant in New York State court is whether the representations concerning the artwork had a reasonable basis in fact at the time the representations were made. Christie’s Inc. v. SWCA, Inc., 867 N.Y.S.2d 650 (Sup. Ct. N.Y. County 2008) (Justice Charles E. Ramos). 
Gift And Estate Planning 
 

The firm provides sophisticated tax advice to owners on the role of their art collections as part of an estate plan, and on the income and estate tax aspects of lifetime gifts of art to museums, charities and private individuals (including important valuation issues). 

  • We have advised artists and collectors on establishing art foundations that will serve the client’s estate plan and cultural interests and often hold art as well. 
  • We advise clients regarding gifts and loans of art to cultural institutions to ensure that the donation is exhibited, used, and acknowledged in accordance with the donor’s wishes.  
  • We advise foundation clients on their obligations with respect to grants and charitable programs, regulatory and tax compliance, and dealings between the foundation and its officers and other insiders. 
  • Our extensive contacts in the art market enable us to secure the best specialized non-legal advice for clients in the areas of authenticity, valuation, conservation and collection formation and management.
Representative Clients 
  • Foundations:   The Pollock-Krasner Foundation; the (Alexander) Archipenko Foundation; the Pierre and Tana Matisse Foundation; The Alex Katz Foundation, The Lachaise Foundation, the Milton and Sally Avery Foundation and the Storm King Art Center (New York); the Renate, Hans & Maria Hofmann Trust;the Jacques and Natasha Gelman Foundation; the Reversible Destiny Foundation (Arakawa and Madeleine Gins). 
  • Authentication Boards:  The Pollock-Krasner Authentication Board; The Andy Warhol Art Authentication Board (1995-2011); The Matisse Foundation: Yves Tanguy Catalogue Raisonné Project; The Jacob Lawrence Catalogue Raisonné Project; Archivio Alighiero Boetti; The Roy Lichtenstein Foundation; Richard Diebenkorn Catalogue Raisonné Project and The Gala-Salvador Dalí Foundation. 
  • Artists and Their Estates: Robert Indiana; the Estate of Paul Jenkins; the Estate of Piet Mondrian; the estate of Sam Francis, for art law matters; several prominent modern painters; and two highly regarded contemporary sculptors, whom we have helped to establish foundations to aid sculpture and other visual arts. 
  • Owners, Buyers and Sellers of Art: Numerous private owners of art, as well as museums and other institutions owning art; and public and private buyers and sellers, art collector-established family foundations, as well as several respected New York art galleries. 
Publications and Professional Activities
 
Three times per year, we publish Spencer’s Art Law Journal, which addresses legal issues of practical significance for collectors, dealers, scholars and the general art-minded public. The Journal is published on Artnet, and back issues are available on our site.
 
Ronald D. Spencer, chairman of the Art Law Practice Group, is the editor and a contributing writer of “The Expert versus the Object: Judging Fakes and False Attributions in the Visual Arts,” Oxford University Press (2004). This book explains how the authenticity of a work of art is decided by experts and then the fate of that decision if it comes to court. 
 
Mr. Spencer has also written and lectured widely on art law matters and has lectured on art law at Yale, Harvard and New York University Law Schools, The Smithsonian Institution, The American Association of Museums and The Appraisers Association of America.  Recent  lectures include “Master Strokes or Lines of Deception? The Subtle Art of Authenticating Drawings and Detecting False Attributions and Fakes,” Pierpont Morgan Library, Director’s Roundtable (November 2005); “How Judges Make Decisions on the Authenticity of Visual Art,” at the American Institute for Conservation, Annual Meeting (April 2007); the Bruce Museum, Greenwich, CT. (July 2007); Barcelona Museo de Historia de Catalunya (June 2007), and Congress of Spanish Museums sponsored by the Gala-Salvador Dali Foundation, Figueres and Cadaqués, Spain (October 2008); “Nazi-looted Art in the 21st Century” at the New Mexico Museum of Art, Santa Fe, NM (November 2008). For the Wall Street Journal CL&M’s Mr. Spencer co-authored an essay about Nazi-era forced sales and the current rights of good faith owners, “Untouched by Nazi Hands, but Still…” (February 2008).
 
Gary D. Sesser is a litigator with a stellar appellate record in federal and state courts, including prevailing in New York’s highest court in Mirvish v. Mott, described above, as well as in the U.S. Courts of Appeals for the Second and Third Circuits, in cases ranging from antitrust to trusts and estates in addition to art law. He has written in Spencer’s Art Law Journal on many of the issues that have arisen in his representation of artists, dealers, collectors and foundations, including “Provenance: Important, Yes, But Often Incomplete and Often Enough, Wrong. What Consequence for a Sale?” Among numerous other distinctions, he has received the highest ratings for professional competence and ethics from Martindale-Hubbell® and has been recognized by Super Lawyers® and Best Lawyers of America® since 2009.
 
Judith Wallace represents collectors, foundations, artists and dealers in transactions and in litigation in state and federal court on matters of art ownership and authenticity, among other art-related issues.  She has written frequently in Spencer’s Art Law Journal on art law topics, including “When Is It Too Late to Recover Artwork You Own? Laches: the Stealth Defense” and “Your Art Sold at Christie’s or Sotheby’s Auction. Can the Auctioneer Undo Your Sale Years Later? Probably, Yes.” Ms. Wallace was recognized as a “Rising Star” in the 2012 edition of Super Lawyers®.

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