In February, the Cleveland Museum of Art (CMA) announced that it would withdraw its lawsuit against the Manhattan District Attorney (DANY) for declaratory judgment that the museum was the rightful owner of a Greco-Roman bronze statue referred to as the Philosopher. The museum purchased the statue from a well-regarded gallery in New York in 1986. Although it had been displayed publicly and studied extensively by scholars for the previous two decades, little was known about its provenance prior to the late 1960s. The identity of the statue was also unknown, in part because of the absence of its head, but experts speculated that it represented Sophocles, Lucius Verus or Marcus Aurelius. Although the CMA curatorial team subsequently performed considerable research into the origins of the statue, uncertainty remained concerning its identification. In 2009, the Turkish Ministry of Culture requested that the museum furnish information and documentation of the statue’s provenance but Turkey never initiated a proceeding to declare ownership of the statue.
In August 2023, the Manhattan DA obtained a search warrant from the New York Supreme Court to seize the statue from the museum alleging that it was looted from the area formerly known as Bubon, and, under Turkish patrimony law, must be turned over to the DA for repatriation to Turkey. As detailed in the February newsletter, since establishing the Antiquities Trafficking Unit (ATU) in 2017, DANY has seized thousands of cultural objects like the Philosopher from museums, collectors and other art market participants on the premise that such objects are stolen. The relevant legal theory is based on foreign patrimony laws that declare cultural property of a certain age or type to belong to the nation. Removal of a covered object without permission after the effective date of the patrimony law renders the object stolen property. In its complaint for declaratory judgment, the CMA maintained that the Manhattan DA’s evidence was unpersuasive, noting the complete absence of any scientific proof as well as the conflicting opinions of experts regarding identification of the statue.
In the meantime, the museum requested and performed a number of scientific tests. Turkish authorities permitted officials from the CMA to have access to the site of ancient Bubon to collect samples from other bronzes as well as soil samples, for comparison with the statue and the trace amounts of soil found within the statue. The museum also made molds of the statue’s feet to compare with stone bases at the site and performed a similar comparison by means of 3D photogrammetry. Lead isotope analysis determined that there was a match. As a result of the more definitive evidence, the museum agreed to return the statue to Turkey. According to the museum, the Republic of Turkey is prepared to consider a cultural cooperation agreement that may include the loan of other antiquities to the CMA. It is worth noting that, unlike other examples in which DANY has seized and repatriated objects from museums, the CMA’s lawsuit allowed it the time to cooperate with Turkey and bring about a more collaborative approach to the return.
Lawsuit to Prevent Demolition of Renowned Land Art Piece in Iowa Settles
In April 2024, Mary Miss, an American artist best known for her site-specific, environmental art installations, filed a lawsuit in an Iowa federal district court against the Des Moines Art Center (DMAC) to block it from demolishing “Greenwood Pond: Double Site (1996),” an outdoor environment commissioned by the institution. The DMAC claimed that, despite spending nearly $1 million to maintain the work since unveiling it in 1996, parts of the installation had nevertheless been deemed dangerous, necessitating that they be fenced off from the public. The DMAC further claimed that it would need to spend at least $2.6 million to stabilize and restore the work. As a result, the DMAC proposed decommissioning the site or, in other words, removing the installation. The artist’s complaint set forth two bases for preventing demolition of the artwork: first, a clause in the commission agreement specifically stated that the DMAC would “properly maintain and protect” the art installation against “the ravages of time, vandalism, and the elements.” Second, the Visual Artists Rights Act (VARA), proscribes any destruction of a work of “recognized stature.”
The court decision issued in May 2024 resulted in a months-long impasse. While the judge rejected the artist’s VARA protection claim, finding that the installation did not fit within the statutory definition of art as a “painting, drawing, print or sculpture,” he nevertheless found that the DMAC was contractually bound not to destroy the artwork because the commission agreement included a promise by the institution not to do so. Although VARA expressly prevents artists from suing in cases where the problematic changes to their work stem from deterioration caused by “the passage of time or the inherent nature of the materials,” the decision did not reach this limitation because of the judge’s finding that VARA protections do not extend to environmental art installations like “Double Site.” In January, the dispute was resolved after the artist and the DMAC reached a settlement that will see Miss receive $900,000 and the institution proceed with the work’s demolition.
The case highlights the limits of VARA due to the statute’s narrow definition of art that does not cover various contemporary media such as performance art or digital art. To this end, artists and property owners are well advised to craft commission agreements thoroughly at the front end to articulate the specifics of long-term preservation as well as what should happen in the event of deterioration. It is also worth noting that an artist may waive his or her VARA rights in writing. Thus, parties may wish to consider whether such a VARA waiver would be appropriate for a particular contemplated project.
Executive Orders Affecting Art Agencies Spur Litigation
In March, the American Civil Liberties Union (ACLU) filed a lawsuit in federal district court in Rhode Island on behalf of several arts organizations challenging a new rule issued by the National Endowment for the Arts (NEA) that required grant applicants to attest that they will not promote “gender ideology.” NEA, which provides millions of dollars in grants to a broad range of arts organizations across the country each year based on artistic excellence, promulgated the rule to comply with President Donald Trump’s Executive Order 14168, titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The suit argued that the new certification requirement and corresponding funding prohibition was unconstitutional because it violated the First Amendment, the Administrative Procedure Act, and the Fifth Amendment. Specifically, the plaintiffs alleged that NEA’s implementation of the executive order on gender ideology (1) exceeded NEA’s statutory authority; (2) was arbitrary and capricious; and (3) violated the First and Fifth Amendments by imposing a vague and viewpoint-based restriction on federal arts funding and artists’ speech. The ACLU sought a preliminary injunction or temporary restraining order before the grant application deadline, initially scheduled for March 24.
In February, the U.S. District Court for the District of Maryland enjoined a different certification requirement imposed by NEA instructing grant applicants to attest that they would “not operate any programs promoting ‘diversity, equity, and inclusion’ (DEI) that violate any applicable Federal anti-discrimination laws, in accordance with Executive Order No. 14173,” titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (DEI certification). Following the court’s issuance of a preliminary injunction, NEA rescinded the DEI-related certification requirement. The plaintiffs in the current case sought a similar outcome.
After the plaintiffs filed their complaint, however, NEA rescinded its certification requirement pending further administrative review of the executive order. Subsequently, in a decision dated April 3, 2025, the court denied the plaintiffs’ motion for a preliminary injunction. While the court found that the plaintiffs clearly demonstrated a likelihood of success on the merits and irreparable harm absent an injunction, the balance of equities and public interest weighed against granting an injunction. The court reasoned that granting an injunction at this time would deny NEA the opportunity to make its own decision about whether to implement the executive order, taking into consideration the obvious tension between its terms and the explicit language of the agency’s authorizing legislation. The court concluded that for it “to intercede and mandate this outcome [an injunction] would raise obvious separation-of-powers concerns.” Whether NEA will proceed to engage in its own administrative review is unclear, however, after President Trump proposed eliminating the agency altogether in the budget he released on May 2, 2025.
A separate case arose in April when a coalition of 20 state attorneys general sued the Trump administration to stop the elimination of the Institute of Museum and Library Services (IMLS) pursuant to an executive order issued in March. IMLS is a federal agency created by Congress that provides hundreds of millions of dollars for museum and library programs in every state. As a result of the executive order, IMLS has placed almost its entire staff on administrative leave and will cut hundreds of grants for state libraries and museums. The coalition argues that the executive order violates the Constitution and the Administrative Procedure Act by eliminating the programs of IMLS without regard for the laws and regulations that govern each source of federal funding. The coalition also argues that the president cannot decide to unilaterally override laws governing federal spending, and that the executive order unconstitutionally overrides Congress’s power to decide how federal funds are spent.
On May 6, 2025, the U.S. District Court for the District of Rhode Island issued a preliminary injunction on the executive order, finding that it violates the Administrative Procedure Act and stating that “[i]t also disregards the fundamental constitutional role of each of the branches of our federal government; specifically, it ignores the unshakable principles that Congress makes the law and appropriates funds, and the Executive implements the law Congress enacted and spends the funds Congress appropriated.” There is currently a separate lawsuit against President Trump to stop the dismantling of IMLS, filed by the American Library Association and the American Federation of State, County and Municipal Employees (AFSCME), the largest union representing museum and library workers.
Surprising Reversal in Nazi Looted Art Civil Suit Called Into Question by Decision in Related Criminal Case
A noteworthy reversal occurred in a Holocaust art case involving Egon Schiele’s “Russian Prisoner of War (1916),” which has been in the permanent collection of the Art Institute of Chicago (AIC) since its purchase in 1966. The heirs of Fritz Grunbaum, a prominent Jewish art collector from Vienna, brought a civil suit on December 14, 2022, seeking declaratory judgment, conversion, and replevin in connection with the drawing. The U.S. District Court for the Southern District of New York dismissed the plaintiffs’ First Amended Complaint in 2023 as barred by the applicable statute of limitations and by laches, denied as futile plaintiffs’ motion for leave to file a Second Amended Complaint, and denied reconsideration in 2024. But, in an order dated March 11, 2025, the Second Circuit Court of Appeals vacated the district court’s decision and remanded the case for further proceedings, instructing the lower court to consider plaintiffs’ proposed Second Amended Complaint. Of significance, the order signals a possible shift in the appellate court’s approach to technical defenses such as the statute of limitations in cases involving Holocaust art where the Holocaust Expropriated Art Recovery (HEAR) Act may be invoked.
The drawing at issue in this case is one of around 80 works by Schiele that have been traced back to Grunbaum, who died at the Dachau concentration camp in 1941. The disposal of Grunbaum’s sizeable art collection is the subject of dispute not only in the current case, but also two previous civil suits addressing the Grunbaum heirs’ claims to other Schiele drawings from the collection, and a current criminal action brought by the Manhattan District Attorney against the AIC as part of a larger investigation into Nazi-looted art allegedly smuggled from Europe into the United States. In 2012, the Second Circuit upheld the district court’s finding in Bakalar v. Vavra that a different Schiele drawing from Grunbaum’s collection was not looted by the Nazis and that the Grunbaum heirs’ claim to that drawing was barred by laches. Grunbaum’s heirs nevertheless assert in the present case that Nazis stole “Russian Prisoner of War” and other property from Grunbaum while he was held at Dachau. The AIC maintains that Grunbaum lawfully transferred the drawing to his wife in 1938, and the drawing subsequently passed to her sister, who later sold it to a dealer. When the Second Circuit issued its 2012 decision in Bakalar, the HEAR Act had not yet passed. Thus, it appears that the new legislation may, at least partially, explain the appellate court’s new posture.
Central to the timeliness issue to be reviewed by the district court on remand is whether the AIC purchased “Russian Prisoner of War” in “good faith” or in “bad faith.” Pursuant to New York’s demand and refusal accrual rule, which applies to good faith purchasers without notice of theft, the district court previously determined that the plaintiffs’ claim was time-barred as of February 2009, three years after the AIC refused the plaintiffs’ demand. During one of the previous civil suits, Grunbaum’s heirs had made a demand to the AIC, requesting the return of “Russian Prisoner of War,” and the museum refused the demand by email in February 2006. The plaintiffs allege in their Second Amended Complaint that the purchase by the AIC of “Russian Prisoner of War” in 1966 was made in bad faith because the museum had received adequate notice that the drawing may have been stolen. Under New York’s “bad faith” accrual rule, the plaintiffs’ claims would have become time-barred in 1969, three years after the bad faith purchase. Importantly, however, the HEAR Act would revive their claims. Typically, the HEAR Act applies the “actual discovery” rule, providing a six-year period after the Holocaust victim or heir initially becomes aware of the identity or location of a Nazi-stolen artwork. The Act also provides that where a claimant learns of a possible cause of action before December 16, 2016 (the effective date of the statute), actual discovery is deemed to have occurred on December 16, 2016. Thus, if the district court is persuaded that the purchase made in 1966 was in bad faith, then the plaintiffs would have filed their case to recover “Russian Prisoner of War” within the six-year statute of limitations specified by the HEAR Act.
The Second Circuit’s order is also remarkable in finding that the earlier Bakalar decision did not have preclusive effect as to the question of laches. In Bakalar, the Second Circuit upheld the lower court’s reasoning that a current possessor may show a lack of diligence with respect to a collection as a whole, rather than individual items and found that lack of diligence by the ancestors of Grunbaum heirs’ established laches. The current opinion by the Second Circuit, however, cautions lower courts against the premature application of collateral estoppel doctrines in fact-intensive issues like laches, particularly when distinct factual scenarios exist despite similar party identities. To this end, the Court observed that while the claimants in the present case and in Bakalar were the same and the artworks in the two cases come from the same collection, the possessors of the artworks are different in significant ways; namely, unlike Bakalar, the AIC is not an “ordinary non-merchant purchaser” with no obligation to investigate the provenance of the drawing it purchased. Thus, the district court was instructed to review the technical defenses of laches and collateral estoppel on remand with this guidance in mind.
Less than a month after the Second Circuit issued its decision, the New York Supreme Court handed down a decision in the criminal case concerning "Russian Prisoner of War" granting the Manhattan DA’s request for a turnover order. The court premised its decision on the finding that the artwork constituted stolen property under New York law. Of particular note was the court’s underlying determination that the Manhattan DA’s use of Criminal Procedure Law § 450.10 was an appropriate mechanism for the relief sought and its rejection of the AIC’s arguments premised on civil law doctrines. Although the court ordered that the artwork be relinquished by the AIC to the Grunbaum heirs, the AIC filed a notice of appeal along with an application for interim relief, and a judge in the Appellate Division issued an emergency stay on May 1, 2025, that allows the drawing to remain at the AIC for the time being. If the decision of the New York Supreme Court holds, it would be determinative with regard to the question of title, irrespective of the ongoing civil case—the drawing would pass to the Grunbaum heirs. Significant questions would remain, however, as to whether the criminal case would have any preclusive effect on the precedent set in the civil case decided by the Second Circuit regarding statutes of limitations and laches defenses. Based on the interplay of criminal and civil litigation, additional questions concerning procedure and jurisdiction would also require clarification.
Crypto Billionaire Sues Megacollector to Recover Giacometti Sculpture, Alleging Fraud and Theft
Crypto billionaire Justin Sun has filed a complaint in the U.S. District Court for the Southern District of New York asserting replevin, conversion and declaratory judgement claims against the entertainment mogul and arts patron David Geffen, from whom he seeks to recover Le Nez (The Nose), a sculpture by Albert Giacometti. Sun purchased the sculpture at a Sotheby’s auction in 2021 for $60 million. Although he subsequently expressed an interest in selling the sculpture, he alleges that his former art advisor, Xiong Zihan Sydney, forged his signature on contracts and traded the work without his knowledge, skimming off hundreds of thousands of dollars for herself in the process. Sun claims that Xiong entered into an agreement with Geffen to exchange The Nose for two works of art owned by Geffen valued at $55 million, plus $10.5 million in cash for a total of $65.5 million. According to Sun’s attorney, there would have been no need for Xiong to forge and fabricate if Sun had actually been aware and approved of what she was doing–legitimate art transactions don’t happen that way. Geffen, however, has rejected all claims of fraudulent dealing as implausible. Instead, he asserts that he legally acquired The Nose, alleging that Sun simply has “seller’s remorse” after attempting and failing to sell the two works he received in the exchange brokered by Xiong.
The case highlights aspects of the commercial art market that can complicate and differentiate art sales from other standard transactions rooted in contract law. Specifically, the art market has historically operated with less transparency, with greater informality, and with deference to anonymity. It is not uncommon for art transactions to proceed through agents or advisors so as to safeguard the privacy of owners. Critics note that this practice of anonymity and lack of transparency in the arts industry have made it a haven for money laundering and other illegal activities. At the very least, in the current case it may have led to fewer questions asked of Sun’s supposed agent.
Collector Sues Calder Foundation Over Refusal to Renew Authentication of Sculpture
In January, art collector Richard Brodie filed a lawsuit in the U.S. District Court for the Southern District of New York asserting civil RICO, fraud, gross negligence and product disparagement against the Calder Foundation and its president, Alexander Rower, the grandson of the artist Alexander Calder. The dispute centers on a glass and wire mobile that the foundation, in its role as the recognized authority on artworks by Calder, previously authenticated as created by the artist. According to Brodie’s complaint, the foundation requires owners of Calder works to seek a renewal of authentication by the foundation when they decide to sell. In the present case, when Brodie sought such a renewal, the foundation declined on the basis that the piece had suffered substantial damages rendering it “no longer in a state that reflects the intentions of Alexander Calder.” Brodie insists that the damage cited by the foundation is fictitious. Instead, Brodie alleges that the foundation’s refusal to re-authenticate the piece is part of a fraudulent scheme by Rower and the foundation to destroy the market value of a multi-million dollar work motivated by an inherent conflict of interest as active buyers and sellers of Calder art. According to Brodie, without the imprimatur of the foundation’s authentication, the artwork cannot realize its full market value.
The current litigation resembles a previous case brought by a Swiss art dealer who claimed that “the Foundation had controlled the market for Calder works through arbitrary determinations of authenticity . . . fueled by the Foundation’s conflict of interest – and its self-interest – as both the arbiter of authenticity and the owner of numerous Calder works worth millions of dollars.” The plaintiff dealer sought to sell Calder’s Eight Black Leaves, but the Calder Foundation refused to authenticate it on the basis that the mobile was just a fragment of a larger work. The plaintiff contended that in the 60 years his family had owned the piece, no one ever claimed or suggested that it was a fragment of a larger work. The complaint asserted that by arbitrarily limiting the number of works in the public domain, the Calder Foundation impermissibly increased the value of the Calder works owned by the foundation.
A series of cases like the ones brought against the Calder Foundation have resulted in the dissolution of the Warhol Authentication Board and the Haring Authentication Board, among others. And these cases cast doubt upon the judgment of those who have historically been considered one of the key authorities on an artist’s body of work. While companies that rely on new technologies including digital scanning and artificial intelligence have emerged as alternate sources for authentication, artists’ foundations and similar bodies of experts associated with the artist remain of primary importance. As demonstrated by the Van Gogh Museum’s rejection of a recently discovered painting titled “Elimar” that some experts believe to be by Vincent Van Gogh, the organizations and institutions traditionally recognized as authoritative in determining authenticity still retain tremendous authority.
Shook Art Law Practice Co-Chairs Present CLE at the Nelson-Atkins Museum
On April 10, Shook Art Law Practice Co-Chairs Channah Norman and Tristan Duncan participated in a CLE hosted by the ACC Mid-America Chapter at the Nelson-Atkins Museum of Art in Kansas City. The presentation, titled “Protecting Your Investment: Key Concerns for Artists’ Trusts, Collectors, and Corporate Collections,” also featured Rosemary Ringwald, managing director and wealth strategies advisor for Bank of America. The panel discussed recent high-profile art law cases that underscore the importance of planning and special considerations associated with art assets, including possible restitution and repatriation claims, artists’ moral rights protections, authentication, fine art insurance, and commercial art market transactions.
