The Deal of the Art

September 27, 2023 – Media Mention
2023 New York Metro Super Lawyers Magazine

Partner, Howard Spiegler, and associate, Gabrielle Wilson, were featured in the 2023 New York Metro Super Lawyers Magazine where they discussed their careers in art law, the evolution of the practice and some notable matters on which they both worked.

The article notes that Gabrielle was part of the team that represented famed rock ‘n’ roll photographer, Lynn Goldsmith, in her copyright infringement case in the Southern District of New York against the Andy Warhol Foundation over his use of her Prince portrait. "I still am in awe that it got all the way up to the U.S. Supreme Court," Gabrielle said, "and in the end the Supreme Court decided that we were right."

The article further discussed that Warhol created images based on Goldsmith's photograph, one of which ran in Vanity Fair in 1984 for which the magazine paid her a licensing fee. After Prince died, the magazine paid the foundation for the use of a different image in the series but did not pay Goldsmith. The court ultimately ruled "the photographer was entitled to copyright protection since the new use was both similar and commercial."

"They were both used for illustrations in magazines—it doesn’t get more similar," Gabrielle says. "I’m really happy that Goldsmith came out on top. It’s clear you’re going to need a license if you want to use a photographer’s work in something that may be determined to be for a commercial purpose."

In discussing her work in recovering cultural patrimony, Gabrielle noted that prosecutors are becoming more aggressive in the area. "The Manhattan District Attorney’s Office is really going after individuals and entities in possession of these works," she says. "It’s becoming more of a criminal matter."

Howard notes that this is a very different landscape than the one he encountered when he "pioneered antiquity and Nazi-looted art recovery," along with several colleagues, including Lawrence Kaye.

The first case he worked on resulted in a New York judge’s order to return two famous 16th-century paintings by Albrecht Durer to an East German Museum — "a shocking development for the art world of 1981," Howard said. The portraits had been stolen from a German castle occupied by U.S. troops and sold for $400 to a Brooklyn lawyer who hung them on his wall for 20 years before a party guest realized what they were.

"It was unheard of that a country could come into the United States, sue a museum and get back property that had been looted," Howard stated. "There were no restitution lawyers in those days. It was a new area."

A few years later, Howard was hired by the Government of Turkey to repatriate antiquities from the Metropolitan Museum of Art. In another matter, Howard used police records and testimony from thieves to prove that the Elmali treasure of silver coins in the possession of collectors had also been looted.

The subject of Howard's first major case involving Nazi-looted art was Portrait of Wally, a 1912 painting by Austrian Expressionist, Ego Schiele. After more than a decade, the case resulted in a $19 million settlement with the heirs of the original owner along with the family's requirement that wherever the portrait was exhibited, it would always have a plaque detailing its true history and ownership.

"It showed that for these families victimized during the Holocaust, it’s not just a matter of getting their artwork back," Howard said. "They want the legacy of their predecessor and the true story told. It was essentially one of the first cases of the recovery of Nazi-looted art and the first case where the U.S. government became involved."

The article notes that this victory, along with the 1998 Washington Conference on Holocaust-Era Assets led to more lawsuits. "Almost all of them are difficult cases," Howard says. "Many of the museums sued and set forth technical defenses like ‘You waited too long.’" Howard also discussed the recently enacted New York State Law requiring museums to label Nazi-looted art, noting, "[w]hat I think is good is it keeps the world’s focus on the importance of these artworks 80 years after the war, as experts tell us there are still 100,000 works out there that have not been restituted."

Howard concluded noting that attitudes are changing, particularly with respect to antiquities. "[T]here’s been a sea change among many museums who have accepted the idea that if antiquities have been looted, they have no legal right to defend their claim," he says. "Lately that’s taken the form of works in former colonies. I’ve been impressed by many museums offering these antiquities without lawsuits. That’s a new chapter in this area and such a big change from when we first got started."

Read the full article here.