Steve and Katie discuss several art law topics in this end-of-season episode. They talk about internal thefts at the British Museum, the ongoing Victorious Youth litigation between Italy and the Getty Trust, the Damien Hirst backdating scandals, the litigation between the Manhattan DA and the Art Institute of Chicago, and the recent litigation between the Donald Judd Foundation and Kim Kardashian.
End-of-season message from Steve and Katie: Thank you to all of our listeners for your support, and we look forward to bringing you season 8 in September!
Resources
British Museum:
https://www.newyorker.com/magazine/2024/05/13/the-british-museums-blockbuster-scandals
Getty Bronze:
https://ial.uk.com/getty-bronze/
https://hudoc.echr.coe.int/fre?i=001-233381
https://www.nytimes.com/2024/05/02/arts/design/getty-museum-bronze-greek-statue.html
Damien Hirst:
Judd Foundation v. Kardashian:
Judd Foundation v Clements Design and Kim Kardashian – Complaint
https://www.nytimes.com/2024/03/27/arts/design/kim-kardashian-table-donald-judd.html
Art Institute of Chicago and Manhattan DA:
The Art Institute of Chicago’s Response to the District Attorney of New York
https://itsartlaw.org/2024/02/13/reif-v-aic/
https://www.nytimes.com/2024/04/24/arts/chicago-museum-schiele-court.html
Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Episode Transcription
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City. Hi, Steve.
Steve Schindler: Hi, Katie.
Katie Wilson-Milne: How are you?
Steve Schindler: Oh, I’m great. It’s a beautiful day in June, and the summer is upon us.
Katie Wilson-Milne: It is.
Steve Schindler: And I think this is our last episode of the season, perhaps.
Katie Wilson-Milne: Yes, our season, meaning we’re going to take a little break this summer, but not as long a break as we normally do.
Steve Schindler: Right.
Katie Wilson-Milne: And we’re going to do a roundup episode. So we’re just going to fill in a few topics that we think are interesting, kind of fast. Obviously, we’re going to leave out many interesting topics we didn’t cover this year, but we’ll discuss a few. But before we start, we wanted to thank our listeners for making us as popular as we are.
Steve Schindler: Yes, I mean, we can…
Katie Wilson-Milne: Which I’m still amazed by.
Steve Schindler: It is. I see the numbers that our producer is showing us. It’s really gratifying.
Katie Wilson-Milne: Yeah, and we love when we go to a conference, or we speak at an event, you know, we are so thrilled that people come up to us and have listened to the podcast. Literally anyone I don’t know who listens to the podcast makes me feel amazing. So thank you, and if we could just request that people listening, if they like the podcast, to certainly subscribe, but to leave us a review and rate episodes when they like them. That really helps us.
Steve Schindler: Yes, it helps us a lot, and we would appreciate it.
Katie Wilson-Milne: Yeah, and if you have friends who you think would enjoy the podcast, please pass it along and ask them to do the same. Okay, so let’s dive in.
Steve Schindler: Alright, you start.
Katie Wilson-Milne: I’m going to start in the UK.
Steve Schindler: Perfect.
Katie Wilson-Milne: With the British Museum, which comes up a lot on this podcast. So, as many people may know, it’s been in the news, the British Museum has experienced a number of thefts that were discovered this year. So in August of 2023, the British Museum fired one of its curators. His name was Peter Higgs. He was formerly the keeper of Greek and Roman antiquities. I love saying that. And he was fired because he was looting ancient jewelry and engraved gemstones from the collection that dated from the 15th century BC to the 19th century AD. The story is wild. So as background, the British Museum has about 8 million objects in its collection. And apparently, from the news coverage of this scandal, about 2.4 million of those are uncatalogued. So what that means is there’s no official record that the British Museum owns them. So if someone were to, say, steal one of these objects, there wouldn’t be an inventory that could be compared against the collection to notice that that object was missing. And jewelry and small gem objects, like the ones that were stolen, are generally underappreciated and kept in storage. They’re very small, they’re often very detailed and can’t be seen clearly without proper lighting. So you can imagine sort of small oval, flattish objects of this type. So Higgs had worked at the British Museum for over 30 years. He ultimately, as I said, ended up overseeing the museum’s collection of Greek and Roman artifacts, including the Parthenon Marbles, which we’ve talked about on the podcast. He was involved in a number of high-profile exhibitions and also efforts to discover stolen objects, namely a 2000-year-old statue that was returned to Libya, which got a lot of press, making this ironic. So he allegedly stole around 2000 artifacts over approximately a decade out of museum storage.
Steve Schindler: That’s just an extraordinary number, if you just stop and think about it, 2000.
Katie Wilson-Milne: Yeah, and as I’ll get to, they’re scattered all over, and because they weren’t cataloged, it’s not easy to figure out what is missing.
Steve Schindler: Okay.
Katie Wilson-Milne: He stole them to make money, he was selling them. He sold many of them on eBay, which I’ll also get to in a moment, and he doctored some of the museum’s records to try to cover up his tracks. In one case, he created a record that he dated from the 1960s to make it look like one of the objects had been lost a long time ago, when in fact, he had just taken it. So how, you might ask, Steve, does something like this go unnoticed? Just very powerful, relatively high-profile, director of a whole department, stealing objects over almost a decade, and nobody notices. How is this possible? Okay, so first, the items weren’t cataloged.
Steve Schindler: Right.
Katie Wilson-Milne: So that’s the first problem. But the museum also dragged its feet, perhaps in disbelief, perhaps because it’s understaffed, it has a lot of other controversies going on, including other thefts that have happened. But the museum had actually received a tip about this in 2021 from a Danish antiquities dealer that had been purchasing some of the artifacts on eBay over a number of years. The museum, upon getting this tip, brushed it aside, said they’d investigated the situation, concluded that there were no thefts and all the items mentioned had been accounted for.
Steve Schindler: Well, that seems suspicious.
Katie Wilson-Milne: It wasn’t true.
Steve Schindler: Right.
Katie Wilson-Milne: So the other thing is that Higgs was quite sloppy, which makes it even more incredible that this wasn’t discovered by the museum sooner. So he left a sloppy paper trail. He was selling items on eBay under an alias, as you would expect a thief to do, but the alias was very similar to his own name. It was Paul Higgins. His name is Peter Higgs. And he used his own actual real life bank account with his real name for payments to be received so anyone who bought something from him could check the record in eBay and see that it was wired to Peter Higgs. His eBay username was also his Twitter handle, his real life Twitter handle, which he had not posted to in a long time, I think, at least I recall, but he had in his life posted to it, so you could also do some Googling and figure that out, and it contained his real life birth year.
Steve Schindler: Oh, wow.
Katie Wilson-Milne: So all of this was enough for the Danish antiquities dealer to put the fraud together long before the British Museum accepted there was a problem. And as I said, it seems like really all you needed to do was to do some Googling to put these pieces together to see that the seller was a curator at the British Museum. You know, you could find his name. His name shows up online as a curator. So it wasn’t…
Steve Schindler: And there are bank records for this.
Katie Wilson-Milne: It wasn’t the cleverest criminal enterprise. So for some reason, later on in 2021, after the British Museum had denied there were any thefts, there was a collection spot check, as I guess there is from time to time, that revealed an item was missing from the Greek and Roman department. And that led to a larger audit of Greek and Roman jewelry and gems, which revealed that there were more missing objects. At that point, the Museum took this idea of a massive theft more seriously, started discovering more missing objects, and started working with the Metropolitan Police, which is the London police force, to recover the items. So dealers, like this Danish antiquities dealer, returned objects to the Museum voluntarily, and other dealers did the same. But it’s been very difficult to get all the objects back.
Steve Schindler: Right. Well, how did they know what objects were missing, ultimately, since there was no record of them?
Katie Wilson-Milne: It’s very challenging, and it’s not clear to me. I see estimates of how many objects were stolen, but I haven’t seen an exact number.
Steve Schindler: Right. Obviously, the ones that they can find online, they can find, but it seems pretty– like a difficult task.
Katie Wilson-Milne: I think some of the dealers, the buyers, have helped them, and they’ve been able to track through some of their records, but they’ve recovered about 626 so far, according to the British Museum’s website, mostly from the art dealers who purchased them, which are the easiest targets, and perhaps also Higgs had not sold some of them, so they were in his possession, which were recovered, but many of them were damaged because he had removed sort of the gold embellishments on the objects to sell them for scrap. I mean, it just gets weirder and weirder. But there are hundreds, if not over a thousand, still missing. So the museum has sued Higgs, and he’s been ordered to return everything he has in his possession and share the records about the transactions so that the museum can try to get what was sold back. The director of the British Museum resigned over this in August, and the museum has conducted, as it should, an internal review requested by the trustees that determined the museum did need to keep a comprehensive register of all the items in its collection, which is a great idea.
Steve Schindler: Great idea.
Katie Wilson-Milne: And could prevent something like this from happening. I laugh, but it is because it’s just the scale of it and the sloppiness by the thief are so, you know, strange, but it’s a tragedy that these objects were stolen from the museum that has, you know, is open for free for theoretically anyone in the world, and they’re pretty resource-deprived and can’t manage their own collection.
Steve Schindler: And he was in charge of the Parthenon Marbles, so, you know, that…
Katie Wilson-Milne: That’s true.
Steve Schindler: He could’ve made a deal with Greece.
Katie Wilson-Milne: Those are a little more high-profile. Harder to steal those.
Steve Schindler: And is he being prosecuted?
Katie Wilson-Milne: So there’s no– as far as I can see online, there are no criminal charges yet. There’s a civil case, you know, he was obviously fired. The police, and I believe maybe even the FBI are assisting in tracking down these objects. The museum’s estimated that the cataloging of its collection, which is this major internal project coming out of this, is going to take five years. So, alright, so that’s our first topic.
Steve Schindler: Well, let’s talk about the Getty bronze, or I’ll talk about the Getty bronze. So, not long ago in May, the European Court of Human Rights upheld Italy’s right to confiscate a contested ancient Greek statue called “Victorious Youth,” which dates from between the second or third century BC and has been on display at the Getty Museum in California, which acquired it in 1977. Now, in Italy, this statue is known as the Athlete of Fano for the small seaside town on the Adriatic that is home to the Italian fishermen who discovered the statue when fishing in international waters in 1964. And it is this discovery by an Italian-based fishing boat and its subsequent illicit export that forms the basis of Italy’s claim against the Getty. So let me just summarize the facts surrounding the acquisition by the Getty. In 1977, the Getty bought the piece from a Liechtenstein dealer, although the piece was actually located in Germany. We apparently don’t really know how the piece got from the fishing boat to Germany, but we do know that eventually four people were charged with smuggling the piece out of Italy and were ultimately acquitted in 1970. Right?
Katie Wilson-Milne: Yeah.
Steve Schindler: So fast forward 37 years to 2007, when an Italian prosecutor issued a confiscation order for the bronze, which by this time had been on display in California at the Getty for 30 years.
Katie Wilson-Milne: Bold.
Steve Schindler: Very bold. So the prosecutor argued that the bronze had been discovered on Italian territory, because the ship that discovered it in international waters flew an Italian flag, and therefore it was subject to Italian jurisdiction, and the bronze was therefore, quote, “Italian heritage” and governed by Italy’s heritage law of 1939, the same law that we just talked about with Giuseppe and Sharon. So after a very, very long litigation, remember it started in 2007, and finally in 2019, Italy’s highest court found in favor of Italy and upheld the order directing the Getty to turn over the statue.
Katie Wilson-Milne: And let me guess, the Getty said no.
Steve Schindler: Yes, the Getty said no, but interestingly, the Italian Supreme Court concluded that the Getty could be subject to a confiscation order because even if it wasn’t a party to the original removal from Italy, it had nevertheless failed to exercise sufficient due diligence when acquiring the piece in 1977. Now, I’m going to get to the Getty’s refusal, but the question that you might ask, Katie, is how does a Greek statue qualify as national heritage of Italy?
Katie Wilson-Milne: Discovered in international waters by people who have nothing to do with the Italian government.
Steve Schindler: Right. Well, the Italian court found that either the piece had been sculpted by an artist on what is now the Italian peninsula or, even if it had originated in Greece, was nevertheless the part of a, quote, “continuum between Greek civilization, which had expanded onto Italian territory and the subsequent Roman cultural experience,” unquote. And so it fit within the definition of national cultural heritage in Italy. Now, as you suggest, the Getty refused to comply with this order on the grounds that it was a foreign decision with no effect in California. But interestingly, at least to me, given the fact that the decision could not be directly enforced in California, the Getty made the decision to challenge the Italian court decision before the European Court of Human Rights, claiming that the confiscation order was a violation of a right under the first protocol to the European Convention on Human Rights, which is the right of, quote, “peaceful enjoyment of possessions,” unquote. And again, this was a bit of a gamble because the Getty could have just done nothing, but it took this direction.
In its decision last month, though, the Court of Human Rights concluded that while the Getty’s rights under Article 1 of the Convention, that is the right to peaceful enjoyment of possessions, was indeed triggered by the Italian government action, the infringement by Italy was justified, because it had acted with the purpose of recovering an unlawfully exported piece of cultural heritage, and that Italy’s actions were proportional given the Getty’s alleged lack of due diligence when it acquired the piece in 1977. Not surprisingly, the Getty said it believed its nearly 50-year possession of the bronze was appropriate, quote, “appropriate, ethical and consistent” with American and international law, and that it would continue to defend its possession of the statue in all relevant courts. Now, while some may consider this a groundbreaking decision, there are certainly a lot of questions raised as to the propriety of this result under international law.
The Getty, of course, has been an open possession of the work for decades. What statutes of limitations should apply? What equitable defenses might apply, such as latches? And while the Getty might not have conducted the type of due diligence that would be expected today, are we to hold them to today’s standard for a work that was acquired in 1977? And I guess from a moral perspective, is this ancient Greek statue found in international waters really a work that should be returned to Italy after it’s been on display for more than 30 years?
Katie Wilson-Milne: I have so many thoughts, but I would love to know what Greece thinks about this. This expansive idea of Italian cultural heritage extends to the entire Roman-touching empire. We have a lot– I mean, the implications of that are quite enormous.
Steve Schindler: It’s really kind of interesting. I mean, it’s a good question. I don’t know what Greece, if they’ve said anything about it at all, I’m not sure what they would say because I don’t know that they have any better chance.
Katie Wilson-Milne: No, they have no better claim, but it’s just, like you said, morally or just intuitively, there might be a more compelling connection with Greece and Italy. The other interesting thing is what due diligence would the Getty have done and what would it have found? It would have found that the statute was discovered in international waters by private parties who sold it and were acquitted of any wrongdoing in Italy for doing so?
Steve Schindler: Right. I mean, I think that’s a fair question, and I don’t know, again, we have to go back to a period of time that predates the Internet, that predates a lot of the types of searches of databases that can be currently done today. And yeah, I suppose if you had gone back, somehow understood that this work that you were buying in Europe was connected to this Italian fishing discovery in 1964 and that the exportation of this work was considered to be illegal, then maybe you would have asked some more questions. But I agree with you, it’s not at all clear.
Katie Wilson-Milne: But the sellers were, the original, presumably the sellers, the fishermen were acquitted of any wrongdoing.
Steve Schindler: They were acquitted. I think there was, I mean, I don’t have all the details of that, but I think there was a question in that proceeding as to whether, I think, they looked at where the work was discovered and that it was discovered in, you know, at least a possibility that it was discovered in international waters. And so the criminal case, again, could have been dismissed.
Katie Wilson-Milne: Even if there was some paperwork issues.
Steve Schindler: Yeah, exactly.
Katie Wilson-Milne: Okay, well, that’s, I guess, not resolved yet, so we’ll see where that goes. Okay, so fast forward to much more contemporary art. I’m going to talk about the Damien Hirst backdating scandal. So Damien Hirst, as many of you know, is a very famous British artist who emerged in the 1980s and 90s as part of a group called the Young British Artists that included Tracey Emin, Chris Ofili, Sarah Lucas, and many other luminaries. He is one of the wealthiest and best-known artists probably in the world. Two of his better known series of works are called the Spot Paintings, of which there are thousands, and the Natural History series. In the Spot Paintings, which he started in the 80s, Hirst presents a lot of multicolored spots on white background. Painted by hand, but they kind of look like they’re mass produced, and a lot of his work has a very commercial component. And they are often displayed many at a time, so lots and lots packed together. In the Natural History series, Hirst preserved– this is so crazy– he preserved animals in tanks of formaldehyde, including the most famous example of this is a work from the early 90s of a 14 foot tiger shark, which is preserved in formaldehyde in a big tank. He continues to sell these works through his own company and as is typical, there are dates on them, which usually indicates when they were made. That’s how we all understand that. But an investigation by The Guardian this year found that Hirst had been dating some newer-to-the-market formaldehyde works as being from the 1990s, which would make them particularly valuable, and that was when Hirst won the Turner Prize. For example, three of the formaldehyde works recently displayed in galleries around the world were dated from the 90s, but all three were actually by Hirst’s employees in 2017 and were first displayed at Gagosian in Hong Kong in that year. And the show was actually advertised as showing works, I quote, “from the early-to-mid 1990s.” And that’s not all. So The Guardian, I guess, kept digging, and they subsequently reported a few months later that at least 1,000 works from the Spot series were also misdated. The works themselves were dated as being from 2016, signed by Hirst. They went on sale in 2021 as part of a project called The Currency, in which buyers could trade the physical work for an NFT and then burn the physical work. It’s very performative. The only way to buy one of these works, incidentally, is through a company that Hirst’s business associate owns and runs. So he has a whole commercial operation. But sources, including some of the painters that created works for Hirst, said potentially thousands of them were actually produced in 2018 and 2019 by dozens of painters working for Hirst. So not only were they not made by him, which is kind of expected, but they were made a few years after they were dated and with his signature. So again, it’s intuitive that artworks are dated the year they were created and not some other date.
Steve Schindler: Right, of course.
Katie Wilson-Milne: We don’t see a date on a work of art and say, oh, I wonder what that date refers to, right? We have a common understanding. Here, though, Hirst, in response to these investigations, argued that while he sometimes does that, dates works for the year they were created, it’s also perfectly fine to date works in the year they are conceived, even if they’re made much later. So because these series or the concept of this type of art was created earlier, he could date later works on those dates. Now, as the Guardian pointed out, there’s some inconsistency, because there’s a variety of dates he has in these types of works, so he wasn’t dating them all at the date of conception.
Steve Schindler: How do you even know when the date of conception is exactly?
Katie Wilson-Milne: Yeah, well, I mean, I guess the 1990s you could only say is, that’s a better argument for the 90s, because that’s when he conceived of a lot of these works. I don’t know, you know, why 2016 or anything in between. So I think this is pretty, I don’t know, suspect, or strange. I mean, it wasn’t just the back dating. Some sources cited by the Guardian also said that Hirst artificially aged the Natural History works, or the formaldehyde works, to make them look as if they were made in the 1990s, which then is not…
Steve Schindler: It starts to sound fraudulent to me.
Katie Wilson-Milne: Yeah, it’s weird.
Steve Schindler: I guess the assumption would be if you’re doing this, because you know that it will increase the value of the work and you’re selling it under the false pretense, then that strikes me as a fraud. If you’re doing it for some artistic reason that doesn’t translate into money, then maybe it’s just sort of an odd practice.
Katie Wilson-Milne: Yeah, I’m not aware there have been any lawsuits about this, but it is just strange. But he, you know through his spokespeople, maintains that there’s nothing wrong with this, that artists are free to date their works in a variety of ways, and he was just dating them differently. And when it was pointed out to him that a few of the works in the Spot series were actually dated correctly or not from the date of conception, they said, oh, that was an aberration or a mistake. So it’s not totally consistent.
Steve Schindler: If I were a collector and a buyer of one of these works and I thought I was getting a work from the 1990s, irrespective of the price even, I would feel a little cheated in some way. It’s just not honest.
Katie Wilson-Milne: Yeah, you would have wanted to know. Of course, the damages depend on the difference in value, so I don’t know how damaged people are, but it’s possible.
Steve Schindler: But you could still feel like you were taken advantage of, even if you couldn’t translate it into dollars and cents.
Katie Wilson-Milne: Yeah, definitely. Okay.
Steve Schindler: Alright.
Katie Wilson-Milne: What’s our next topic?
Steve Schindler: Well, now we’re going to switch from that to something a little older, but I want to talk a little bit about The Art Institute of Chicago and a case in New York involving a work by Egon Schiele. Now, we recently talked on the podcast with our colleague, Tom Kline, about the Washington Principles on Nazi-Confiscated Art relating to the restitution of art stolen by the Nazis during their rule over Germany. And one of those voluntary principles is that certain institutions of signatory countries address claims by the heirs of Nazi victims on the merits and seek, in the words of the principles, a just and fair solution. And implicit in that commitment, I think, is to not engage in protracted litigation over technical issues. We’ve also discussed on the podcast the 20-year saga of the heirs of Lilly Cassirer, whose work by Camille Pissarro was unquestionably taken by the Nazis, trying to recover that work from Spain’s Thyssen-Bornemisza Foundation. And although Spain is certainly a signatory to the Washington principles, they have aggressively litigated the case, and the work remains on display in Madrid. To me, this seems like a direct violation of the Washington principles and the most basic sense of ethics. So that said, museums still do have a right to defend themselves on the merits against claims for allegedly Nazi-looted art that they believe with good cause were not actually stolen by the Nazis. And one such case is now being litigated in New York criminal court.
So the Art Institute of Chicago is currently defending itself against an attempt by Matthew Bogdanos, an assistant district attorney in New York, to seize a drawing by the Austrian expressionist artist Egon Schiele, entitled “Russian War Prisoner,” that has been in its collection in Chicago since 1966. Our listeners might recall that late last year, the New York DA announced the return of seven works by Schiele to the heirs of Fritz Grünbaum, the Viennese cabaret artist who had owned them before he was killed in the Dachau concentration camp in 1941. So in his February application to state criminal court in New York City, the New York DA argued that the Schiele drawing owned by the Chicago Art Institute is one of those works confiscated by the Nazis from Fritz Grünbaum. On April 23rd, just a couple of months ago, the Art Institute filed a 124-page response in New York addressing both procedural issues that they argue require dismissal of the case, but also squarely addressing the merits and concluding that this particular Schiele work was not looted by the Nazis and that the DA has deduced no evidence to the contrary. The Art Institute has put forward three main arguments in its defense. First, they argue that this case was already litigated in a civil case in federal court in New York and decided in favor of the Art Institute and against the very parties to whom the DA is seeking to turn over the work. The Institute further argues that the DA is using something called Penal Law Section 450.10 in the absence of a pending criminal case to re-litigate this civil controversy that has already been decided by a federal judge in New York. Second, the Museum argues that the DA cannot use this penal provision just to obtain jurisdiction over a work that is in Chicago and to obtain turnover of a work that has been in the Museum’s open possession in Illinois for more than 60 years without any regard to the applicable statutes of limitation. And finally, in great detail, they counter the DA’s argument that the work was stolen and the deficiencies in the DA’s arguments and challenge him to put on his witnesses under oath in a public courtroom where the rules of evidence apply and due process would be observed. So we’ll post the papers filed in the show notes, and I would definitely encourage listeners who are interested to read them. Particularly, I would say the response of the museum on the merits is careful, it’s detailed, refers to a lot of documents and testimony in other cases, and I think it’s a great historical…
Katie Wilson-Milne: An incredible amount of effort…
Steve Schindler: Amount of effort. And we’ll see how the court resolves this, but I would note that in contrast with the Cassirer case, which was all about procedural technicalities and never about the merits, the Art Institute has at least squarely addressed the merits in the very court chosen by the Manhattan District Attorney.
Katie Wilson-Milne: Right. I think we’re– and in a case where the procedural arguments are even more present, like, again, how do we have a roving Manhattan District Attorney who’s not even a federal employee, right?Is a local state employee going all around the country trying to seize art objects in other jurisdictions from players who are not under his authority? It’s remarkable. I mean, and if Matthew Bogdanos is listening to this, we’d love to have you on the podcast.
Steve Schindler: Yes, as long as we can ask you any questions that we want.
Katie Wilson-Milne: Yes, we have so many questions, and the jurisdictional basis is one of them. I understand that the argument is that if an artwork ever has passed through New York, that’s a jurisdictional hook, but I do think the local district attorneys in a lot of these jurisdictions might be surprised that someone from across the country is just showing up claiming they have authority over institutions in that location.
Steve Schindler: Right, and one of the things we know, because Mr. Bogdanos has sought turnovers of many, many objects in museums all across the country, most museums, when faced with these turnover proceedings, tend to capitulate.
Katie Wilson-Milne: Yes, exactly. Right.
Steve Schindler: Because the fight, they don’t have either the resources to fight it, and in certain cases, you know, the will to fight it. And in certain cases, you know, he may be right, but this particular lawsuit and the response by the law firm of McDermott Will & Emery is extremely detailed and comprehensive, and if the firm is not doing it on a pro bono basis, which of course is possible, we don’t know, it would be extremely expensive. And so most museums…
Katie Wilson-Milne: They just can’t.
Steve Schindler: …are not in a position to litigate on the merits in the way that this museum is doing. So it will be worth following and to see how the case comes out.
Katie Wilson-Milne: Yeah, I mean, as we’ve seen, as the Manhattan DA has sort of stepped up these seizures, you know, it doesn’t have to, as you said, present evidence, you know, publicly available evidence in court. It’s not a full-blown trial or proceeding. It’s just a seizure order. And the museum’s option is to spend a ton of resources to dig into it and dispute it at potentially great reputational cost. Because that’s, I think, one of the, you know, the main things that the Manhattan DA has going is that they know there’s serious reputational issues with being accused of owning stolen art, especially looted art, you know, has to do with, you know, wrongs done either by colonial powers or, you know, through the duress under the Nazi-controlled Europe. So, you know, so many of these institutions have just agreed feeling like they can’t fight back. Now, it may be that in many cases, that’s because the museums look into it and realize that they very well may have property that they shouldn’t have lawfully or they shouldn’t have ethically, and they give it back. But in the cases where that might not be true and or where you don’t know, because no evidence has been presented to you and you still feel compelled to give it back because you have no ability, you know, to have a fair and open proceeding, that’s problematic and it’s just interesting the Art Institute of Chicago, this institution outside of New York, is the first to really push back.
Steve Schindler: Right, and it’s also interesting that this work is not, it’s not a major work.
Katie Wilson-Milne: No, it’s a drawing.
Steve Schindler: It’s a small drawing. It’s on two sides and it’s an intriguing drawing, but not the kind of major work that museums, you know, would sometimes fight about, like the Norton Simon, you know, over the Lucas Cranach paintings. This is something that I have to assume that they feel…
Katie Wilson-Milne: It’s like on principle.
Steve Schindler: …strongly about it on principle, because otherwise they wouldn’t be devoting these kinds of resources to it.
Katie Wilson-Milne: And I think they are defending their reputation in a different kind of way. Yeah, so we’ll see what happens with that, and I completely agree that the museum’s decision not just to focus on the obvious procedural problems with this case, but to go all in on the merits is an ethical decision, you know?
Steve Schindler: Right, because they could have just presented in the first instance, made a motion essentially to dismiss based on jurisdiction, and they did preserve those arguments for sure. But as you said, they went beyond that, and they said, here’s an entire– I mean, pages and pages–
Katie Wilson-Milne: Here’s the work we did to make sure that we don’t own stolen art. Yes, so we’ll see what happens. Alright, the last case we’ll talk about is a new lawsuit between the Judd Foundation and Kim Kardashian, which I don’t think anyone saw coming. So in March, the Judd Foundation, which is the legacy foundation that came out of the estate of Donald Judd and protects his legacy and owns all of his rights, sued Kim Kardashian and her design company in California Federal Court for a variety of trademark and unfair competition claims and one copyright claim. The disputes stemmed from Kardashian’s YouTube tour of her skin company’s offices in California, in which she showed a lot of her design choices that she clearly cared about and spent a lot of time on, including a large table and chairs in the style of Donald Judd. Very typical minimalist integrated furniture sets, which I think many people, you know, when they see them, recognize them. And she referred to them in the video as Donald Judd pieces. In fact, they were not authentic Judd pieces. They were unauthorized reproductions created by Clement Designs, which is the other defendant in the case. Donald Judd, as we know, is a very famous minimalist artist. He died in 1994. And the Judd Foundation, which is actually run by his family and is the owner of Judd’s rights and protects his legacy, continues to sell Judd’s furniture designs. And that is what we mean when we say an authentic piece of Judd furniture. It’s produced and stamped by the foundation. The tables and chairs that Kardashian displayed are Judd’s most iconic furniture designs. They are still sold. A table like the one she showed is something like $90,000. Each of the chairs is $9,000. These are high art pieces of design. And in addition, and one of the components of these works that people think are so clever or important is that they fit, when the chairs are pushed under the table, they fit together seamlessly into one integrated unit. And that was true in the video that Kardashian put on YouTube. Alright, so what happened here? Clements Designs was hired to design the SKKN by Kim company offices. That’s Kardashian’s skin care company. And they sent her a proposal, including the furniture at issue here, stating it was in the style of Donald Judd, and including a photograph of the authentic Judd furniture that had been commissioned by the foundation in connection with an exhibition at SF MoMA that had happened in the past. So the YouTube video comes up where these works are shown in the tour of the offices, and Kardashian says that they are works by Donald Judd. The parties attempted to resolve the dispute, which started because the Judd Foundation reached out and said, you know, you have to take down that video. These are not authentic works. You can’t represent you have anything to do with authentic Donald Judd furniture, and you need to destroy the furniture. So Kardashian presumably said, no, I’m not going to do that, and whatever compromises they tried to come to didn’t work out. I’m guessing that the key sticking point was the destruction of the furniture. I believe I read that Kardashian had offered to put a comment under the video that they were not, you know, authentic Judd works.
Steve Schindler: She wasn’t willing to take the video down, as I understood it.
Katie Wilson-Milne: Yeah, I don’t think she, at least at that point, was taking it down, although according to The Washington Post, that YouTube post is now offline anyway. So, I mean, clearly, for whatever reason, clearly the parties didn’t come to an agreement. So the foundation, presumably at great expense, is suing for a trademark, trade dress, infringement, unfair competition claims, including false advertising, and for copyright infringement of the design company, Clements’ use of the photograph of the furniture that the Judd Foundation has the rights to in the design proposal. So the basis of these claims is that, you know, as with all trademark-like claims, the public was misled to believe that the Judd brand was connected with this furniture or sponsored it or was affiliated with Kardashian in some way, and that somehow the video harmed their goodwill and integrity by associating these fakes with the Judd Foundation.
Steve Schindler: Right, and also, I guess, associating by implication the Judd Foundation and Donald Judd with a skincare product.
Katie Wilson-Milne: Yeah, or Kim Kardashian.
Steve Schindler: Or Kim Kardashian, right.
Katie Wilson-Milne: So, you know, it’s an interesting– The Judd Foundation clearly cares a lot. I think you could ask, like, it’s one YouTube post by someone who has a lot of reach and, like, loves this furniture and respected it and was willing to say that she’d made a mistake. You know, we all know that style is not copyrightable.
Steve Schindler: Right, right.
Katie Wilson-Milne: These pieces of furniture are not under copyright. There may be trade dress claims, but, you know, I think we’ll have to see how the Judd Foundation proves that it was really damaged or that there was true consumer confusion…
Steve Schindler: Right.
Katie Wilson-Milne: …that damaged their brand. I’m not sure that it clearly damaged the Judd Foundation brand.
Steve Schindler: It’s interesting, because it’s one of these cases that on both sides you could see that the litigation might be more costly and unnecessary than the actual remedy. So even if it meant she had to destroy the furniture, it’s hard to imagine that the fake Judd furniture was so expensive and so integral to her operation that that versus years of litigation, potentially, and might not be worth considering.
Katie Wilson-Milne: This screams of a case that should not be litigated.
Steve Schindler: But this is in California, right?
Katie Wilson-Milne: And in California, where plaintiffs live on.
Steve Schindler: We know this.
Katie Wilson-Milne: Yes, for a long time. I forgot to mention, but I think one part of the original attempt to settle this was that the Judd Foundation demanded that the furniture be destroyed or recycled, they said, when the concept of destruction proved to be controversial. But then that Kardashian would purchase authentic works to replace it at a discount. But you’re right, even adding up all that, is it worth litigation?
Steve Schindler: And for Kim Kardashian to just purchase authentic Judd furniture at a discount, which I assume she thought, as I understood it, she thought she was purchasing?
Katie Wilson-Milne: I think she probably made a mistake.
Steve Schindler: And wasn’t really focused on, you know, maybe the cost was less than, you know, it might otherwise have been. But she was buying it from a design company that sounds like she assumed was selling her authentic furniture. Otherwise, why would she go on and say it was?
Katie Wilson-Milne: I mean, the proposal said in the style of, so I think the design company has responded that it absolutely never said it was authentic. Which is one reason the foundation has brought this copyright claim about the use of a photograph in sort of a private folder that was shared with Kardashian. The copyright claim, you’re like, is it really– I’m going to get sued because I put a copy of a photograph in a private proposal I’m giving my client? I’m not displaying it online. I’m just saying here’s how it would look in your office.
Steve Schindler: It’s hard to figure out, even if it is some sort of infringement with the damages.
Katie Wilson-Milne: Yeah, and I don’t think that they registered before the infringement occurred, so I don’t think they’re going to get statutory damages. Anyway, an interesting case. We’ll see how long it lives.
Steve Schindler: And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts. And send us feedback at podcast@schlaw.com, and if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson. And finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.
Steve Schindler: And I’m Steve Schindler bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.