59 comments were received, which were posted on the Copyright Office’s website.  Those in favor of resale royalty legislation included the American Photographic Artist, Inc. and the Artists Rights Society.  An interestingly high number of German artists’-related associations weighed in, including the Internationale Gesellschaft der Bildenen Künste.

Those opposed included the Association of Art Museum Directors, who after stating that “[m]useums have an interest in ensuring that all living artists, whether at the beginning of their careers or already well established, are fairly compensated and rewarded for their artistic endeavors,” argued that the AAMD was “concerned that the royalty, contrary to its intended purpose, may actually undermine the economic position of many living artists, especially artists at the start of their careers. As a matter of economics, if a buyer knows that he or she has to pay a share of any profits from later sales, then the buyer is likely to pay less in the initial transaction.”  Likewise, eBay (a defendant in the California case) opposes new legislation. 

Others took a more agnostic view.  The New York University Art Law Society was “of the view that without more significant research into current markets and behaviors of artists, auction houses, galleries and other participants in art transactions, it is impossible to predict whether the proposed resale royalty would effectively and efficiently incentivize artistic creation.”

The Copyright Office held a public hearing on April 23, 2013 “to discuss issues relating to the consideration of a federal resale royalty right in the United States.”  I have not found any accounts of the hearing.  No word yet either on when to expect action, if any.

From the conference website:

 2013 Interdisciplinary Art Crime Conference

Providing an arena for intellectual and professional exchange, the annual Art Crime conference is integral to ARCA’s mission and serves as a forum which aims to facilitate a critical appraisal of the protection of art and heritage worldwide and a forum to highlight the work of important achievers in this field.

This interdisciplinary event brings together those who have an interest in the responsible stewardship of our collective cultural heritage. Past year’s presenters  have discussed a variety of topics ranging from  the display  and  sale  of  looted  objects;  strategies  to combat  the  illicit  trade  in  cultural  property; current law enforcement investigations; and the problem of art fraud and forgery.

ARCA’s annual  conference  takes  place  in Umbria in the city of Amelia, the seat of ARCA’s Postgraduate Certificate Program.   The two day event is held within Amelia’s Sala Boccarini inside the cloister which also houses the city’s   Archaeological  Museum.

During each year’s event, ARCA presents four awards to outstanding individuals for their service to cultural heritage protection and research

The awards categories are:

Art Policing and Recovery

Past winners: Vernon Rapley (2009), Charlie Hill (2010), Paolo Giorgio Ferri (2011), Stuttgart Detective Ernst Schöller (2012)

Art Protection and Security

Past winners: Francesco Rutelli (2009), Dick Drent (2010), Lord Colin Renfrew (2011), Karl von Habsburg and Dr. Joris Kila (Jointly – 2012)

Eleanor and Anthony Vallombroso Award for Excellence in Art Crime Scholarship

Past winners:  Norman Palmer (2009), Larry Rothfield (2010), Neil Brodie (2011), Jason Felch and Ralph Frammolino (Jointly – 2012)

Lifetime Achievement in Defense of Art Award

Past winners: Carabinieri TPC collectively (2009), Howard Spiegler (2010), John Merryman (2011), Dr. George H. O. Abungu (2012)

The appeals court also made final determinations about fair use without giving the District Court—the usual arbiter and finder of factual determinations—the chance to play that role under the new guidance of this opinion.  A dissenting judge (Clifford Wallace) made some excellent points that the Second Circuit had perhaps overreached in drawing critical lines where it is perhaps not so well suited to do so. 

Nonetheless, the appropriation art community weighed in as amici curiae to advocate for this result, including numerous museums, the Andy Warhol Foundation, and Google.  Given the procedural posture, the court also made some likely unintentional comment on the nature of visual analysis.  Under the standard announced, Cariou and Prince might both dispute the facts surrounding the intent of the respective artists—concerning, for example, the target audience.  If that is so, summary judgment—a ruling that no facts material to the legal analysis are in dispute—is premature and a contested trial must be held.  The Second Circuit undertook to analyze, really without context, only the images themselves.  As any student of art history can tell you (and it is ironically often overlooked), untainted visual analysis is essential to finding the meaning of a work, but it is hardly exclusive. 

In 2007, Prince— a well known “appropriation” artist—exhibited a collage entitled Canal Zone, which consisted of 35 photographs from Yes, Rasta (a 2000 book by photographer Patrick Cariou about the six years he spent with the Rastafarian community in Jamaica), torn and pasted to a wooden board.  Prince exhibited and sold other works through Gagosian, which showed a total of 22 of Prince’s 29 Canal Zone series in late 2008, all of which used portions of Yes, Rasta images.  Prince painted over some Cariou photographs, used parts of some, and all of others.

Cariou sued for copyright infringement, as the holder of the copyright in his Yes, Rasta photographs.  Gagosian and the other defendants argued that either Cariou’s work was a “mere compilation” (which, like phonebooks, cannot be copyrighted) of its subjects (the Rastafarians), or alternatively that Prince’s work was sufficiently transformative that it fell within the Copyright Act’s permitted “fair use” allowing use of otherwise copyrighted works.  

In 2011, the District Court found for Cariou, writing with respect to the compilation argument, “[u]nfortunately for Defendants, it has been a matter of settled law for well over one hundred years that creative photographs are worthy of copyright protections even when they depict real people and natural environments.”  The lower court rejected the defendants’ fair use arguments out of hand, and ruled that the market for Cariou’s original work had been damaged (citing cancellation of a particular show).  The District Court focused on Prince’s admitted non-interest in the original meaning of the Yes, Rasta photographs.  Prince’s intended comment, the District Court found, was on the work of other artists, like Picasso, Warhol, Cézanne and de Kooning, that is, a comment on the medium (collage) rather than the appropriated work.  Thus, it provided no transformation of Cariou’s photographs, nor did it provoke any discussion of the themes of Cariou’s works in a way that could be considered fair use.  The District Court contrasted examples where advertisements were used to comment on the role of advertising in society.  Given the failure of the fair use argument, the court was particularly concerned with their adverse effect on the market for Cariou’s paintings (commerciality) in finding infringement.

In the two years since the District court decision, artists, museums and galleries involved in any appropriation art have been in a precarious position.  The subjective inquiry into an artist’s reason for appropriation is a sensitive conversation, and often one without a clear answer.  For anyone of limited resources, the safest course is to stay away, the very chilling effect that Prince argued was in play: if an artist or museum is involved with a work whose intended commentary is rejected as insufficiently transformative, they faced punitive damages because their intent to comment reveals their awareness of the original work.

The Second Circuit opinion today is as sweeping as the lower court’s, but in the opposite direction.  It noted that the first of the four “fair use” factors is the most important.  Namely, in considering the “purpose and character” of the secondary use (the words of the statute), is the old work “transformed in the creation of new information, new insights, new aesthetics, new insights and understandings”?  Rather than confine fair use to criticism, comment or parody, it must also extend to “new expression, meaning, or message.” 

Thereafter, the Second Circuit explicitly analyzed the visual images side by side.  Against this standard the Second Circuit found as a matter of law that twenty five of the works by Prince were clearly transformative.  They contrast “crude and jarring” appearance with Cariou’s “serene” photographs of “natural beauty”, as well as palette, scale, and media differences. 

The Second Circuit also overruled the District court’s reliance on Prince’s own testimony and it imposition of a requirement that the new work comment critically on the copied work (only or primarily).  Although Prince’s disavowal of any particular purpose was unusual, the appeals court held, it did not strip Prince of a fair use defense; Prince was thus not required himself to claim any particular fair use purpose. 

The opinion was less concerned with the commercial nature of Prince’s work, ruling that it is a factor to be applied with caution, because “Congress could not have intended a rule that commercial uses are presumptively unfair.” 

The Second Circuit was not impressed with the alleged damage on the market for Cariou’s work, either, finding fault with the District Court’s reliance on the cancelled show.  The proper analysis, according to the Second Circuit, is whether the target audience for the two categories of works is the same.  Here, the collectors interested in the works are different, according to the Court. 

With regard to the “amount and substantiality” of the copying, the Second Circuit, perhaps surprisingly, minimized this as well.  Although much of the area of the Cariou photographs is obscured, it seemed a straightforward conclusion to say that they had been copied wholesale. 

Thus, the appeals court vacated and ruled for Prince as a final matter (more on that in a moment) that twenty five of the works do not infringe Cariou’s copyright.  It remanded to the District Court to reanalyze whether Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company satisfied the test now articulated.  The Court felt that “it can not say with certainty at this point whether artists present a ‘new expression, meaning, or message.’”

Clifford Wallace, a judge from the Ninth Circuit Court of Appeals, was sitting by designation on the case.  He has made some compelling points in his dissenting opinion.  Wallace argued that the consideration of fair use of all thirty works should go back.  As he pointed out, new evidence or expert testimony might be relevant in view of the new standard.  Somewhat critically, he accuses the majority of “short-circuit[ing] this time-tested search for a just result under the law.  I would not apply the shortcut, but would set aside the summary judgment, remand the entire case to the district court, and allow the district court to analyze material evidence under the proper standard.” 

Wallace also put his finger on the most difficult thing about a case like this: “while I freely admit that I am not an art critic or expert, I fail to see how the majority in its appellate role can ‘confidently’ draw a distinction” between the works found to be fair use, and those that were not.

Today’s opinion clearly is a relief for appropriation artists and those who exhibit or sell their work.  As nervous as they might have been two years ago after the District Court ruling, artists whose work is appropriated may today feel equally unsure about their ability to police their copyright.

David de Csepel, Angela Maria Herzog, and Julia Alice Herzog filed the case in 2010.  They are the heirs of Baron Mor Lipot Herzog, a Jewish Hungarian collector who died in 1934.  As the plaintiffs described it, his collection remained with his wife until her death in 1940, when it was divided among their three children.  De Csepel is a descendant of one of the Herzog daughters; the other two plaintiffs are the daughters of András Herzog (a son of the Baron), who died on the Eastern Front in 1942.  Their cousins—children of the third Herzog child—assigned all their rights to de Csepel.

The complaint describes the history of Hungary’s alliance with Nazi Germany, and including the passage of increasingly restrictive and anti-Semitic laws throughout the 1930s and 1940s, in addition to other horrors as the war widened.  As the complaint points out, when the war turned on Germany and Hungary began considering ways to position themselves with the Allies, Germany occupied Hungary and began the deportation of the country’s Jewish population to the camps in the East. 

It was at this turning point that the complaint alleges the collection was put taken away from the family.  In May, 1944, laws were issued requiring Jews to declare their property.  The Herzogs tried to hide the collection, say the plaintiffs, but the works were discovered and taken to Adolf Eichmann.  The plaintiffs allege that the collection was disbursed among various German and Hungarian authorities.

After the war, say the plaintiffs, the Herzogs (who had fled the country) engaged in a series of correspondence about the collection.  It is from the correspondence, the plaintiffs allege, that what is known as a bailment resulted.  Bailment is simply the act of entrusting an object to another; a coat or car check are the most common examples.  Under a bailment, there is no ownership transfer, and the bailee (the person getting the property) is obliged to safeguard it and give it back upon demand.

Thereafter, the plaintiffs allege that they were unable to make any progress in Hungary for various reasons (at least initially) relating to the Soviet-bloc government, culminating in an unsuccessful lawsuit in Hungary after the Iron Curtain fell.  The plaintiffs describe that result as follows:

The Budapest Municipal Court initially recognized and acknowledged the Herzog Heirs’ ownership rights in the paintings at issue, but in January, 2008, as a result of proceedings that were not conducted in accordance with international law, an appellate court reversed the lower court’s decision ordering restitution and rejected the demand.

As discussed here many times before, sovereign immunity means that the sovereign (i.e., the state and its instrumentality, cannot be sued without the sovereign’s consent or some statutory exception.  The FSIA is one such statute. 

The plaintiffs filed suit in 2010 and invoked the federal court’s jurisdiction in two, non-exclusive ways: first, that the federal courts have jurisdiction under 28 U.S.C. § 1605(a)(3), the “expropriation exception” to sovereign immunity under the Foreign Sovereign Immunities Act.  It was this provision that Maria Altmann used against Austria, and which has been the springboard for a decade of restitution claims.  Namely, where property is taken in violation of international law, and the defendant engages in commercial activity in the United States, there will be jurisdiction.  The complaint sets forth five pages of justifications for jurisdiction under this provision.

In the alternative, the plaintiffs argued that the “commercial exception” under 28 U.S.C. § 1605(a)(2) applied.  Here, that means that the plaintiffs alleged that the defendants used the very property at issue in commercial activity that had an effect in the United States.  In so doing, such a defendant is a commercial actor, and cannot invoke immunity for acts that are not uniquely sovereign in nature.  This invocation occupies less than a page of the complaint.

In 2011 the Hungarian defendants moved to dismiss the complaint.  They argued, among other things, against the application of the exceptions to the FSIA, that the act of state doctrine barred the claim, that the statute of limitations had expired, that the United States was the wrong forum, and that the previous litigation in Hungary barred the claims as to 11 of the works.  Later that year, the District Court in Washington, DC denied the motion in part and allowed it in part.  Critically, the court ruled that the Hungarian litigation had addressed the ownership of those 11 works, and that the plaintiffs could not re-litigate the question (a principle known as res judicata).  The defendants obtained permission to appeal the parts of their motion that were denied, and the plaintiffs appealed the dismissal of the claims as to those 11 works.

The appellate court took slightly different approach.  After reviewing the District Court’s application of the expropriation exception, the appeals court found that it was in fact the commercial exception that applied.  The Court of Appeals states at p. 10 of the opinion that (emphasis added) “In their complaint, however, the Herzog family seeks to recover not for the original expropriation of the Collection, but for the subsequent breaches of bailment agreements they say they entered into with Hungary.” 

That is simply not so, or to be more accurate, only partially so.  As noted above, the plaintiffs argued that one of two provisions of the FSIA justified jurisdiction in the federal courts.  As long as either one is satisfied, they have at least won the right to stay in federal court.  Indeed, the plaintiffs would otherwise have had no reason to allege the illegal manner in which they say that the collection was first taken.  Of course, in trying to preserve their case, the plaintiffs did exactly what one would expect: they made detailed allegations of the illegality of the 1944 takings as well.  It may be that the postwar allegations also satisfy the commercial exception, but the expropriation allegations are clearly the heart of the jurisdictional theory.  The plaintiff’s approach in this regard is entirely consistent with the bailment claim; if something were wrongfully taken from a plaintiff, then bailed to the sovereign defendant, jurisdiction could still lie under the expropriation exception.  As such, it was a puzzling read of the complaint by the appeals court. 

With that said, and as Alison Frankel has noted, the bailment theory is what saved the plaintiffs for now.  In ruling that plaintiffs seek to recover against a commercial actor who breached a bailment contract, the court took away the defendants’ arguments about acts of state and foreign affairs, arguments that have been increasingly successful in FSIA restitution cases.  The plaintiffs will now have to prove, of course, that such an agreement existed, and they will no longer enjoy the presumptions that attach to defending their complaint.  Jori Finkel has also covered the case extensively for the Los Angeles Times.

The portion of the opinion restoring the 11 previously-litigated works contains the court’s weakest analysis.  The DC Circuit pointed out that deference to judgments from other countries (known as “comity”) is often a fact-sensitive inquiry into whether the foreign proceeding contained “opportunity for a full and fair trial” held under “a system of jurisprudence likely to secure an administration of justice.”  In the application, this has proven a nearly impossible standard to meet, reserved for notorious jurisdictions with barley any recognizable legal system at all, but the DC Circuit is absolutely right that that question of application is ordinarily one for later in the case.

Under the Supreme Court’s guidance, however, a plaintiff cannot simply frame an argument as a factual allegation, it must allege specific facts that taken to be true would support the legal conclusion that the plaintiff advocates: “While a complaint attacked by a . . . motion to dismiss does not need detailed factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]’ to relief requires more than labels and conclusions . . . .  Factual allegations must be enough to raise a right to relief above the speculative level  . . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact) . . . .”  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

Where the DC Circuit missed, frankly, is in its application to this complaint.  The sole allegation to deflect recognition of the earlier Hungarian judgment is that it followed “proceedings that were not conducted in accordance with international law.”  That is the very sort of legal conclusion in the place of factual allegations as a result of which courts routinely dismiss claims (i.e., it doesn’t describe what happened from which one could conclude that it was unfair, only the conclusion itself that it was unfair).  The question is not, despite the DC Circuit’s opinion, whether something in the complaint contradicts the defendants’ arguments.  Even at this initial stage, the plaintiffs must allege specific facts that set out a case that, true, would carry the burden of proof.  

Hard cases make bad law, the saying goes, and this is an example.  Remember, enforcement of judgment can apply to any number of scenarios, particularly in the commercial setting in trying to collect on valid debts.  Parties routinely seek to avoid valid judgments by making vague allegations of unfairness, and the pleading requirements are there to force them to do so carefully.  There are treaty regimes and entire bodies of law about the recognition of foreign judgments, which are hard enough to collect as it is.  In our opinion, this decision—entirely distinct from any perceived equities—sets a bad precedent in that regard. 

The multi-faceted decision—which can be reviewed either by the entire DC Circuit or, if it wished, the Supreme Court—certainly breathes some life into the FSIA restitution practice and sets the case up for discovery.  But so long as the Chabad case lingers in the same court, it is still difficult to imagine that this case will have a dramatic effect on the actual restitution of any cultural objects, or Hungary ever returning the paintings.

UPDATE April 24, 2013

Catherine Hickley at Bloomberg reported today that just last week, “Janos Lazar, chief of staff to Hungarian Prime Minister Viktor Orban, said that his office is preparing a list of works of art of disputed ownership in Hungarian museums with the aim of returning looted objects to the rightful owners. He did not specifically mention the Herzog case, which Hungary is contesting in the U.S. lawsuit.”

As quick recap, the Mask of Ka-Nefer-Nefer is a funerary mask of an ancient Egyptian noblewoman.  After the museum purchased it from a dealer in 1998, the United States later began to seek its seizure, arguing that it was stolen property.  The United States brought a civil forfeiture action under U.S. customs laws.  The government argued that because the Mask had gone missing in Egypt by 1973 and then surfaced in a sale in the United States decades later, it could not have been imported legally.  In such cases, the government need only establish probable cause, whereas the claimant assumes a burden to prove the object was not stolen.  They are typically, in metaphorical terms, a layup.

The District Court, however, came to a scathing conclusion of the government’s allegations.  The court stated “the claimant cannot even be sure of the who, what, when or where of the alleged events surrounding the alleged ‘stealing,’ nor can the Museum ascertain if the Government is pursuing of the Mask based on alleged theft or a unlawful import/export, or both.”  Harsher still, the court held that “the Government has been completely remiss in addressing the law under which the Mask would be considered stolen.” 

The government’s efforts to amend the claim fared no better (and, we noted, arguably missed the deadline it requested to do so).  Echoing that very timeliness point, the court noted that the government had previously requested more time to move for permission to amend the complaint (in various filings the government had essentially asked for leniency to plead more specific facts to support the allegations of customs violations). 

At that point the case went up on appeal.  In January, the government advised that a three-way meeting was in the works between the U.S., Egypt, and the museum in late February.  That has apparently run its course.  Briefing will consume the next few months, with an oral argument possibly in the late fall.

Rappaport is an American film director who has been directing independent and underground films since the 1970s.  Rappaport has known Carney, who had written about Rappaport’s films prior to their first meeting, since approximately 1990. 

In about March 2005, Rappaport was preparing to leave New York and relocate to Paris.  At that time, Carney offered to hold and safeguard certain property related to Rappaport’s films, including: digital video masters (in various formats) of Casual Relations, Local Color, The Scenic Route, Impostors and Chain Letters; digital video masters of shorter works such as Postcards, Exterior Night, and Mark Rappaport – The TV Spin-Off; 16mm copies of Casual Relations, Local Color, The Scenic Route, Impostors, Chain Letters, Rock Hudson’s Home Movies, From The Journals of Jean Seberg and The Silver Screen/Color Me Lavender; high definition master of Exterior Night; and scripts (drafts and final), clippings, reviews and announcements of screenings related to Rappaport’s films.

Last year, Rappaport requested the return of the property, in particular the original video masters, for use in digitizing certain of his works, and the disagreement ensued.  We eventually filed suit on behalf of Rappaport and obtained a temporary restraining order on June 26, 2012 compelling the immediate and complete return of the property.  Carney later retained an attorney and moved to set aside that order, at which point Rappaport dismissed the lawsuit (but without conceding at all the question of ownership). 

The Globe article discusses the history and certain information that Carney has apparently provided to BU and the paper.  Notably, the Globe states that “nowhere in the e-mails Carney shared does Rappaport say the materials were a gift” in response to Carney’s claims that the material was given to him (which Rappaport vehemently contests).

As discussed in September, 2012, the painting became a sensation when a Virginia woman purchased a small painting in a golden frame with “RENOIR” engraved onto its frame.  Assuming it was a copy, she paid $7 and brought it to the Potomack Company.  An auction was scheduled, with estimates ranging as high as six figures.  Shortly thereafter, a Washington Post reporter examined the library at the Baltimore Museum of Art and found a provenance card that seemed to be for the very same painting, originally part of a gift from Sadie A. May.  The card notes that the painting, on a linen napkin, was painted for Renoir’s mistress, apparently at a restaurant on the Seine.  More importantly, the card concludes with the entry “STOLEN FROM THE GALLERY, Nov. 17, 1951.” 

The Baltimore Museum and its director, Doreen Bulger, immediately stated its interest in receiving the painting back.  The FBI seized the painting on October 2, 2012 pursuant to a civil seizure warrant, and it is presently in the FBI field office in Manassas, Virginia.  To impose some order on the confusion, the United States has now filed what is called an “interpleader” action.  Under Rule 22 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1335, interpleader is simply another word for a dispute in which a holder of property (most often a bank), faces claims from multiple parties for ownership.  Rather than make a decision and face legal action from the disappointed parties, the holder files an interpleader action in which the claimants make their arguments and the court ultimately decides.

Here, the United State has identified six potential claimants, including for the first time the identity of the woman laying claim to the painting as a good faith purchaser at the flea market.  Her name is Marcia “Martha” Fuqua, and she is a resident of Lovettsville Virginia.  Her detailed letter requesting the return of the painting is an exhibit to the Complaint.  The other claims are summarized in the Complaint as follows:

• The Baltimore Museum of Art;
• Fireman’s Fund Insurance, which apparently paid a claim on the loss to the Museum in 1952;
• Amalie Adler Ascher, great niece of Sadie May, as Sadie’s heir to any paintings that the Baltimore Museum chose not to accept;
• Heirs of Herbert L. May (ex-husband of Sadie), who actually purchased the Renoir from a Paris dealer in 1925; and
• The Potomack Company, the gallery from which the painting was seized. 

Interestingly, whereas initial reports (and the scheduled sale) valued the work at more than $100,000, the Complaint sets the value at approximately $22,000, relying on an attached appraisal of Ted Cooper, Director of Adams Davidson Galleries.  The dispute will bear close watching.

In November, two plaintiffs (Theodore Grunewald and Patricia Nicholson) alleged that the Met’s voluntary admissions policy was both a fraud and a violation of the various laws and agreements between the Met and New York City that underlie the museum’s location in Central Park (which provide that the museum may stay rent-free so long as it is open to the public free of charge on multiple days each week), as well as of General Obligations Law § 349, New York’s prohibition against unfair and deceptive practices.  The plaintiffs claimed not only that the Met’s signs suggest a mandatory (rather than optional) admission fee, but that the Met has intentionally misled the public to that effect. 

The newest case is structured similarly, now on behalf of Filip Saska, Tomáš Nadrchal, and Stephen Michelman as putative representatives of a class (and represented by the same attorney as Grunewald and Nicholson).   The first complaint was clearly designed to draw maximum publicity, but the Met chose a muted response.  Clearly it has decided that a more public approach is now due.  Thomas P. Campbell, the Met’s Director and CEO, issued a statement that makes a few critical points:

• The Met has never imposed an admissions fee;
• The recommended admissions policy was agreed to by the City of New York (undermining the plaintiffs’ arguments that the agreements with the city have been breached);
• The policy is clearly posted and explained.

As we noted here in November, the most obvious hurdle for the Grunewald/Nicholson plaintiffs was that it is hard to construe the signage about which the plaintiffs claim as being factually untrue, and a threshold question of a fraud claim is the falsity of the statement.  Specifically, is a sign that says “Admissions Recommended” a false statement of fact, or rather a request?  And even then, the plaintiffs’ reliance on the statements of fact that they allege are false also has to be reasonable.  The cases’ arguments that as members of the public they are intended beneficiaries of the Met’s agreements with the City also seem to be somewhat tenuous, particular if the city agreed to them (a third-party beneficiary cannot prevail if the parties to the contract of which it is a beneficiary have performed the agreement).

As predicted in November, this issue seems unlikely to go away quickly.

The schedule as posted includes:

• Cultural Property Roundtable: Updates and Case Studies
• Recent Issues in Authentication
• Original, Digital, and Exhibition Copies – Rights and Responsibilities?
• Foreign Lenders and Risk Management; Immunities
• International Disputes and Arbitration
• Safeguarding Living Treasures: Children in the Museum
• eBooks and Digital Publications
• Tax and Legislative Update
• Social Media and Technology Updates
• Litigation Update
• Ask the Lawyer (Almost) Anything
• Look Who’s Talking: Freedom of Expression and the 1st Amendment at Public Libraries and Museums 
• General Liability Insurance: Terminology and Coverage
• The Ins and Outs of In-kind Gifts
• Ask the Intellectual Property Lawyer
• Customs
• International Fundraising and Friends Groups
• Employee Handbooks: Key Tips for Revisions and Updates
• Advanced Topics – Contracts (with Emphasis on Construction)
• From the Ground Up: Construction Issues – Environmental and Historic Preservation Issues, Architect Selection, AE and Construction Contracts
• Risky Business: High Risk Activities and Projects Involving Your Museum Building