On May 18, 2023, the United States Supreme Court ruled in favor of famed rock photographer Lynn Goldsmith against the Andy Warhol Foundation for the Visual Arts, Inc.’s (AWF),[1] in a long-awaited decision impacting fair use under Section 107(1) of the Copyright Act. The opinion written by Justice Sotomayor, in which Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett and Jackson joined, held that the “purpose and character” of AWF’s commercial use of Warhol’s portraits of Prince shared the same commercial purpose of the original photograph taken by Ms. Goldsmith and, as a result, did not constitute fair use.[2] The…
Continue Reading Supreme Court Finds Warhol’s Commercial Licensing of “Orange Prince” to Vanity Fair Is Not Fair Use and Infringes Goldsmith’s Famed Rock Photo

The appreciation of works of art is subjective, and rightfully so as the experience of viewing art, and what it makes one feel is personal. This seems to guarantee that no artist or piece is left out of the realm of consumption, so long as there is a person who can appreciate the expressive work.
Continue Reading To Be, or Not to Be? Considerations for A.I.- Generated Art

The assumption that artists love credit is challenged when an artist appears to repudiate their authorship. Sometimes repudiation arises from personal animus while in other instances an artist might feel that their work is no longer “up to snuff.”[1] In some extreme circumstances, artists can be involuntarily thrust into a claim to repudiate their alleged authorship, which happened in the case of Fletcher v. Doig. [2]…
Continue Reading “Not My Work”: When Artists Dispute Authorship

The strength of the US dollar against the British pound – at present, the pound has dropped nearly 18% since the beginning of 2022 – would appear to make the purchase of art and other cultural property in the UK and Europe far less expensive for Americans. But the tumultuous state of the world has thrown a multitude of wrenches into British art exports to the US. The (not over yet) pandemic, (nor over yet) Brexit crisis, growing inflation, expanding regulations to prevent anti-money laundering, frustrating global supply chain backups and other issues have made it maddeningly difficult for US-based…
Continue Reading For US Art Collectors Shopping in the UK, the Dollar’s Strength is Deceiving

The artworks stolen by the Nazis are the last prisoners of World War II.

 – Ronald Lauder, Woman in Gold

Ferdinand Bloch-Bauer was a wealthy sugar magnate in Vienna, Austria where his six Gustav Klimt paintings were housed. His wife, Adele Bloch-Bauer, was the subject of two of the paintings. On March 12, 1938, the Nazis invaded and claimed to annex Austria. Ferdinand, who was Jewish and had supported efforts to resist annexation, fled the country ahead of the Nazis, ultimately settling in Zurich. In his absence, the Nazis took over his home and seized his artworks, which included the…
Continue Reading NY Museums Required to Label the Last Prisoners of World War II

When Christie’s Auction House first entered the secondary art market of mainland China in 2005, it licensed its brand to a local auction house and received a total of RMB 97,000,000 (roughly $12,100,000) for its inaugural sale.[1] With eight years of experience in this nascent market, Christie’s started its independent business by establishing a branch in Shanghai and obtaining an auction license shortly afterward. Early March this year, Christie’s realized a total of RMB 222,030,200 (roughly $35,000,000) in its inaugural sale, selling 95% by lot and 90% by value, at its new gallery, BUND ONE, a century-old historical building…
Continue Reading Unroll the Scroll Painting: Inside the Chinese Art Market and Its Regulatory Landscape

Everything is being tokenized these days, including art, games, collectibles and much more. The record prices being fetched have created an NFT frenzy. This distribution model has created a new channel for monetization of creative IP. Given some of the unique aspects of NFTs, IP owners need to rethink their IP protection and licensing strategies. IP protection strategies should include specific protection relating to NFTs. Due to some of the unique aspects of NFTs, various new considerations need to be addressed when licensing IP. NFT creators need to be mindful of potential infringement issues when using third party IP and…
Continue Reading NFTs and Intellectual Property: What IP Owners and NFT Creators Need to Know

Many things are being tokenized, but the growth of NFTs for digital art is booming. This, in part, is due to the recent headline news that Beeple’s iconic digital art work was sold at auction by Christie’s for $69 million. Other digital art is being created to leverage pre-exiting IP and physical art. This boom is creating great opportunities for IP owners who want to license their IP for use in NFTs. However, for those just entering the space, there are many things to consider given some of the unique aspects NFTs and digital art.
Continue Reading Protecting IP and Limiting Liability When Licensing IP for Digital Art and NFTs

The tokenization of physical and digital art has many advantages. Some of the advantages create potential complexities under US law. Each situation is fact specific, but the following is a summary of some of the areas for which careful consideration is needed with tokenized art. This is not a complete list, but provides some of the most common issues that we typically see. These issues can impact the owners/creators of tokenized art as well as the exchanges and platforms that sell them.
Continue Reading Tokenized Art Legal Issues

As with other rapidly-evolving technologies, the blockchain space is experiencing a frenzy of patent activity. The data shows that there are 3-4 times as many published applications as there are issued patents for these concepts. This trend strongly suggests that the number of blockchain-related patents will surge in the next couple of years. However, due to recent changes in patent law, it is more important than ever to ensure that you analyze the patentability of blockchain inventions in light of these changes to target inventions likely to result in patents.  Once likely patentable inventions are identified, it is critical to…
Continue Reading How to Successfully Obtain Blockchain Patents

In 1999, the estate and family of founding partner, Gordon F. Hampton, gifted his extraordinary collection of contemporary art to the University Art Museum — now known as the Carolyn Campagna Kleefeld Contemporary Art Museum — at California State University, Long Beach.  In keeping with Gordon Hampton’s promotion of the arts and support of the Museum, Sheppard Mullin is pleased to introduce you to a virtual three-part artist lecture series emphasizing material innovation.  The Museum offers this series as a fundraiser for collection acquisitions.  Please see the attached brochure for more information.
Continue Reading Fundraiser for Collection Acquisition Material Concerns Three-Part Artist Lecture Series

Last week, Sheppard Mullin partner Neil Popović (SF) secured summary judgment against recognition of a €2 million ($2.2 million) French judgment against  art editor Alan Wofsy and Wofsy’s company Alan Wofsy & Associates.
Continue Reading French Picasso Judgment is Abstract Expression to U.S. Law

In January 2018, Mercedes-Benz began a marketing campaign that included photos of its cars in the Eastern Market in Detroit. The Eastern Market is home to many murals commissioned through the Murals in the Market Festival, some of which were included in the campaign.
Continue Reading Driver’s License: Copyright Infringement in the World of Street Art