"Seung's blind reliance on Dinaburg's alleged statements of the painting's value is not reasonable as a matter of law"

I've been meaning to mention the recent NY state court decision dismissing a claim by a collector who bought a Julian Schnabel painting for $380,000 from a dealer who allegedly said it was worth "at least $500,000" when its true market value "was no more than $110,000." (Among other things, it had sold "months earlier" at Philips for $156,000 (against an estimate of $60-80,000).)

The decision proceeded on basic caveat emptor grounds. "A party is not justified in relying on any alleged misrepresentations if the facts were not peculiarly within the other party's knowledge and the party had the means to discover the truth by the exercise of ordinary intelligence." "Seung does not allege that she made any effort to ascertain the value of the painting prior to its sale." "Seung alleges nothing more than a relationship of art buyer and art seller, which does not rise to the level of a special realtionship [required for a negligent misrepresentation claim]." "Seung could not have reasonably relied on statements regarding the painting's value when she made no effort to independently ascertain its value."

Greg Allen comments: "if Seung's case is meaningful, it's only as a reminder to collectors to do their own damn homework; the NY Supreme Court determined that art advisors and even dealers are not 'experts,' and their opinions are just sales patter which constitutes, at best, 'non-actionable 'puffery'...on which a sophisticated commercial entity could not reasonably rely."

"People disagree vigorously over whether a photo of a copyrighted work is a derivative work. The court refused to resolve the issue"

Rebecca Tushnet: "Seventh Circuit rejects Gracen, tries again."

The decision is here. For background, see here.

"There is no logical connection between Sotheby's failure to disclose a security interest and any actual or potential injury to … Minor"

Though it comes in the fairly narrow context of a motion for leave to amend his counterclaims, there is some language in a recent decision in the lawsuit that would seem to be pretty devastating to Halsey Minor's overall case against Sotheby's. First, the court rejected the idea that the alleged non-disclosure could have injured Minor in any way:

"Minor does not allege that ... the paintings were auctioned at an inflated price because of the failure to disclose the security interest. To the contrary, because the paintings were sold [to him] at auction, Minor set the price for the paintings. . . . As explained above, the allegations in the proposed counterclaim do not support an inference of any connection between Sotheby's conduct and any actual or potential damage to … Minor… [B]ecause Minor pleads no facts to support an inference that Sotheby's security interest affected the value of the paintings, he fails to identify how Sotheby's failure to disclose this interest was material."

The court also rejected the notion that Sotheby's had fiduciary duties to Minor in connection with the sale:

"In arms length commercial transactions, 'no relation of confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent extraordinary circumstances'" (quoting DeBlasion v. Merrill Lynch & Co., Inc., 2009 WL 2242605).

I believe Sotheby's own motion for summary judgment is still pending.

More Minor legal news here.

Art Theft by Country

Judith Dobrzynski breaks it down.

More on Moore

Rebecca Tushnet has a good summary of the district court decision (mentioned earlier here) in favor of Daniel Moore in his lawsuit with the University of Alabama. She says "the Tiger Woods case is so on point that quoting big chunks of it got the court basically where it needed to go."

Meanwhile, the Tuscaloosa News says "UA needs to walk away from Moore lawsuit."

8-0 Alabama hosts No. 9 LSU this weekend.

"How can cultural heritage institutions legally use the Internet to improve public access to the rich collections they hold?"

I've linked on a number of occasions to Peter Hirtle's thoughtful commentary on the Brodsky bill and related issues. Peter's now co-authored a new book entitled Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, which I'm sure is well worth checking out. Read more about it (and download a PDF copy if you want) here.

"School, sculptor in battle over art"

From the Detroit Free Press: "A renowned sculptor and Holocaust survivor who spent the last 37 years as artist-in-residence at Orchard Lake St. Mary's prep school is engaged in a bitter feud with school officials over who owns more than $2 million in artwork at the campus. Marian Owczarski, 76, said in a lawsuit filed Oct. 29 in Oakland County Circuit Court that many of the 1,800 pieces of sculpture, paintings, metalwork and stained glass on display at the campus' Galeria are from his private collection."