The Art Law Review: The Mediation and Arbitration of International Art Disputes
'The art market is notoriously opaque – the cliché is that it is the largest unregulated industry in the world, besides guns and drugs. . . . There is little oversight, and players can get away with a lot of ethically dubious behavior.'2 In such a fraught landscape, disputes frequently arise. Yet, the administration of justice in art law disputes can be challenging. Traditional judicial forums often do not have the required expertise in art and the art market to resolve these disputes. As a result, the art market often does not accept the validity of legal judgments in art disputes – rendering the process inefficient and ineffective. Aiming to address these problems, on 7 June 2018, the Netherlands Arbitration Institute (NAI) and Authentication in Art ((AiA), based in The Hague) launched the Court of Arbitration for Art (CAfA), 'a specialized arbitration and mediation tribunal exclusively dedicated to resolving art law disputes'.3 CAfA aims to 'increase the quality of the decision making and the market acceptability of the outcome[s]'4 by relying on art law practitioners and experts, who are better positioned than traditional courts to evaluate evidence and to understand the intricacies of the art market.5 CAfA was designed to address all art law issues, including fraud, stolen art, authenticity, copyright and contractual disputes,6 and can conduct hearings anywhere in the world.7
To best understand how this new tribunal operates, it is important to understand why it was created in the first place. This chapter focuses on two significant problems that confront the effective resolution of art law disputes in traditional judicial forums, and how CAfA set out to fix them.
II Problems with adjudicating art law disputes in traditional forums
A significant problem facing the adjudication of art law disputes is the judicial system's lack of experience with the unusual customs of the art world and lack of expertise in specific issues, such as artistic merit and purpose, aesthetics and authenticity. As Justice Holmes famously stated, 'it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of a work, outside of the narrowest and most obvious limits'.8 This lack of expertise in the first instance not only leads to inconsistent and imprecise results, but also contributes to the second major problem in adjudicating art disputes in the mainstream judicial system: the perceived lack of legitimacy of the decisions rendered. The fact that a court issues an opinion about a work of art does not mean that the market will honour the result, which can make the judicial determination ineffective. For example, 'the market need not – and often does not – accept a court's finding that a work is, more likely than not, authentic or fake'.9 CAfA was designed to confront these types of problems by establishing procedures that promote decisional accuracy and foster the legitimacy of decisions resolving art disputes in a way that the market can and will rely on.10
Certain types of art disputes are particularly susceptible to these problems. Among these are copyright cases that involve the defence of fair use, and warranty cases that address authenticity.
i Copyright and the fair use defence
The fair use doctrine is an affirmative defence to a claim of copyright infringement under which certain uses of a copyrighted work 'for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an infringement of copyright'.11 Courts assessing fair use must engage in a multi-part analysis that considers both objective and subjective factors regarding a defendant's use of a copyrighted work. The first factor – which is often the most determinative in the analysis – considers the purpose and character of the use, including whether it is transformative of the original work.12 Despite being highly subjective, the United States Court of Appeals for the Second Circuit considers this factor, and in particular the 'transformativeness' inquiry, to be at '[t]he heart of the fair use inquiry'.13 Generally, 'the more transformative the new work, the less will be the significance of other factors, like commercialism'.14
For instance, the Second Circuit focused almost entirely on the purpose and character analysis in the copyright infringement case Blanch v. Koons,15 in which fashion photographer Andrea Blanch brought a copyright infringement action against visual artist Jeff Koons, after Koons incorporated an altered image from one of Blanch's copyrighted photographs into a collage painting titled Niagara.16
As the Court repeatedly stressed, it was not its job 'to judge the merits of Niagara, or of Koons's approach to art'.17 Curiously, however, the Court spent considerable time comparing Koons's purported artistic purpose for creating Niagara to that of Blanch in creating the copyrighted photograph.18 The Court also identified and assessed what it believed to be the stylistic elements that Koons incorporated from Blanch's photograph into Niagara. Based largely on what the Court thought were the 'sharply different objectives' that Koons expressed for creating his art compared to Blanch's reasons for creating her photo, as well as the aesthetic and stylistic changes Koons made to the colours, background, medium and size of the objects and object details, the Court found Niagara to be transformative, with Blanch's photograph serving merely as the 'raw material'.19 The Court therefore concluded that Koons had made fair use of Blanch's photograph and had not infringed on her copyright.
The holding in Blanch – when contrasted with the holdings in similar cases – highlights the potential problems of a court untrained in art applying a subjective analysis concerning artistic merit and objectives. The subjectivity of this analysis, uninformed by artistic expertise, may lead to inconsistent results. For example, Koons had been sued for copyright infringement in prior cases involving others of his artworks, and was found to have infringed the copyrighted works each time.20 Indeed, in one case, Rodgers v. Koons, the court 'was not very sympathetic to Koons' artistic goals and viewed him more as a profiteer on Rogers' work'.21 Although the works at issue in each case were different, the result in Blanch may be more a product of Koons's changing defence strategy rather than the Court 'getting it right'.22
In a later Second Circuit case, Cariou v. Prince, photographer Patrick Cariou brought a copyright infringement action against appropriation artist, Richard Prince,23 based on Prince's use of Cariou's copyrighted photographs in Prince's painting series called Canal Zone.24
The Canal Zone series consisted of collages of Cariou's photographs upon which Prince painted images over the subjects' facial features.25 In reversing the District Court's finding that Prince infringed Cariou's copyright, the Second Circuit focused almost entirely on what it believed to be the transformative nature of Canal Zone.26
The majority of the Court adopted an 'objective viewer' test to determine whether Prince's works were transformative, noting that '[w]hat is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work'.27 After conducting a side-by-side comparison of Cariou's 'serene and deliberately composed' photographs and Prince's 'crude and jarring' artworks,28 the majority concluded that a reasonable observer would find that 25 of Prince's works 'employ[ed] new aesthetics' and created 'a new expression'.29 The majority stressed the significant aesthetic differences between the works, believing that Prince 'fundamentally' altered the original photographs' 'composition, presentation, scale, color palette, and media'.30 These changes were sufficient to render 25 of the 30 Canal Zone works transformative as a matter of law.31
As for the remaining five works, the majority could not 'say with certainty . . . whether those artworks present a “new expression, meaning, or message”',32 and believed that the district court was 'best situated' to determine whether Prince's alterations of Cariou's photos were sufficiently transformative so as to render it a fair use.33
The ruling of the majority drew harsh criticism from Judge John Clifford Wallace, who dissented in part where the Court 'employ[ed] its own artistic judgment' to find that 25 of the Prince works constituted fair use as a matter of law.34 He failed to see how the majority could draw artistic distinctions between some of Prince's works, but not others, constituting fair use, and remanded the case on the issue of fair use only as to five of the 30 works in question.35 Judge Wallace further questioned the majority's ability to evaluate Prince's art:
If the district court is in the best position to determine fair use as to some paintings, why is the same not true as to all paintings? Certainly we are not merely to use our personal art views to make the new legal application to the facts of this case. . . . It would be extremely uncomfortable for me to do so in my appellate capacity, let alone my limited art experience.36
The Second Circuit's decision is especially striking when compared to the District Court's opinion on summary judgment that, '[o]verall, . . . the transformative content of Prince's paintings is minimal at best[.]'37 Absent reversal, the resulting order would have required defendants to 'deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the Photographs, including the Paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, film negatives, discs, and other articles for making such infringing copies'.38
The same scenario played out, in reverse, in Andy Warhol Foundation for the Visual Arts, Inc v. Goldsmith, which addressed whether Andy Warhol's use of Lynn Goldsmith's photograph of the singer Prince as the reference material for a series of 16 artworks – 14 silkscreen prints and two pencil illustrations – constituted fair use.39 The District Court noted several key differences between Warhol's works and the underlying photograph that supported its holding that the works were protected: 'In all but one of the works, Prince's torso is removed and his face and a small portion of his neckline are brought to the forefront'; 'The details of Prince's bone structure that appear crisply in the photograph, which Goldsmith sought to emphasize, are softened in several of the Prince Series works and outlined or shaded in the others'; 'Prince appears as a flat, two-dimensional figure in Warhol's works, rather than the detailed, three-dimensional being in Goldsmith's photograph'; and '[M]any of Warhol's Prince Series works contain loud, unnatural colors, in stark contrast with the black-and-white original photograph'.40 The Court found that '[t]hese alterations result[ed] in an aesthetic and character different from the original'.41 Specifically, '[t]he Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure'.42
The Second Circuit disagreed. After noting that judges should not assume the role of art critic or make aesthetic judgements about art, the court proceeded to make factual findings about, among other things, the purpose of the works and the works' essential artistic elements – findings that contradicted what the artists themselves had said about their art. For example, the court stated that 'viewing the works side-by-side, [it] conclude[d] that the Prince Series is not “transformative”' because it 'retains the essential elements of its source material, and Warhol's modifications serve chiefly to magnify some elements of that material and minimize others'.43 'While the cumulative effect of those alterations may change the Goldsmith Photograph in ways that give a different impression of its subject, the Goldsmith Photograph remains the recognizable foundation upon which the Prince Series is built.'44
The confusion caused by the Second Circuit's reversal is heightened because several other courts have used Andy Warhol's works as exemplars of what constitutes fair use. In a recent ruling, the US Supreme Court, clearly alluding to works by Warhol, noted that '[a]n artistic painting might, for example, fall within the scope of fair use even though it precisely replicates a copyrighted advertising logo to make a comment about consumerism'.45 The California Supreme Court has remarked that '[t]he silkscreens of Andy Warhol . . . have as their subjects the images of such celebrities as Marilyn Monroe, Elizabeth Taylor, and Elvis Presley', but '[t]hrough distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself'.46 Even the Second Circuit itself has previously recognised that '[m]uch of Andy Warhol's work, including work incorporating appropriated images of Campbell's soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising'.47
This inconsistency across judicial opinions, including from some of the country's most influential courts, has created an environment where artists cannot discern what is or is not protected, which risks stymieing artistic creation and forces lawyers into the absurd role of advising artists how to create. The lack of agreement regarding the substantive issue of Prince's fair use of copyrighted material in Cariou – as well as the process for deciding it – as between the District Court's opinion, the majority opinion of the Second Circuit and the dissenting opinion by Judge Wallace, alone demonstrates the complicated nature of the artistic analysis at issue. That and the other decisions discussed above call into question the perceived legitimacy of any resulting judicial determination – highlighting the problems with allowing a 'judge [to] make these decisions about art'.48 If this patchwork of conflicting decisions shows anything, it is that this area of the law is highly subjective, ever shifting, and requires keen expertise.49
ii Warranty cases and authenticity issues
A major issue in warranty cases is whether art is counterfeit, which raises the question of how art is, or should be, authenticated. These cases often turn on a battle of expert opinions, requiring courts to select which expert is more persuasive. When courts and the art market disagree, the legitimacy of a court's decision is diminished.
This is precisely the circumstance that occurred in Greenberg Gallery, Inc v. Bauman,50 in which the plaintiffs sued for breach of warranty, claiming that the piece they had purchased was not the hanging mobile called Rio Nero by artist Alexander Calder that they were led to believe.51 At trial, the parties presented competing expert testimony regarding the work's authenticity.52 Klaus Perls, the plaintiffs' expert and one of the foremost Calder experts in the world, whose gallery at one time owned Rio Nero, believed that the piece was a forgery.53 He based his conclusion on a comparison of photographs of the original work to the purported forgery, and noted that the suspected forgery did 'not fit into the feel of a real Calder'.54 Notwithstanding Perls's conclusion, the court was not persuaded by his analysis and held that the plaintiffs had not carried their burden of proving by a preponderance of the evidence that the work was a forgery rather than a piece that had been 'misassembled and abused' over time.55
Importantly, and as the defendant's expert warned, regardless of the court's conclusion, Perls's opinion that the piece was a forgery would 'destroy its value in the art market'.56 That is exactly what followed: 'As a consequence of his opinion, the work's value has been assessed to be negligible.'57 The Greenberg Gallery decision 'illustrates the inability of our legal system to provide a definitive determination of authenticity'58 and the consequence of doing so when the art market is not in agreement.
The effect of the Greenberg Gallery decision influenced the court in a later case involving Calder works, Thome v. Alexander & Louisa Calder Foundation.59 In Thome, plaintiff Joel Thome sought a judgment declaring that two theatrical stage sets were authentic works of Calder and a mandatory injunction compelling that the stage sets be included in Calder's catalogue raisonné.60 As to authenticity, the court stated that it could not make such a declaration, and that doing so would be of no moment:
[D]eterminations of the authenticity of art work are complex and highly subjective assertions of fact. As such, disputes concerning authenticity are particularly ill-suited to resolution by declaratory judgment. The law cannot give an art owner a clear legal right to a declaration of authenticity when such a declaration by definition will not be definitive. . . . Moreover, because of the procedures and processes by which our civil litigation is decided, courts are not equipped to deliver a meaningful declaration of authenticity . . . courts have neither the education to appropriately weigh the experts' opinions nor the authority to independently gather all available appropriate information; we can only base our conclusions on the evidence the parties choose to present to us, and our findings as to a party's entitlement to relief are generally made according to a preponderance of the evidence standard. So, any declaratory judgment of authenticity a court issued would amount to a statement that the preponderance of the evidence submitted to it supported a finding that the work at issue was genuine. Even if we considered declaratory relief to be proper in this context, such a limited determination would, in any event, be of no value.61
Conscious of Greenberg Gallery, the court noted that a court's declaration on 'authenticity would not resolve plaintiff's situation, because his inability to sell the sets is a function of the marketplace. . . . If it is immaterial to the art world that plaintiff has proof that the sets were built to Calder's specifications, and that Calder approved of their construction, then it will be immaterial to the art world that a court has pronounced the work “authentic”'.62
Despite the Thome court's more cautious nature, the result again highlights the limitations of the traditional justice system and its inability to provide meaningful relief in art disputes.
III CAFA established to address limitations of courts
The US judicial system has a history of overcoming similar problems of expertise and legitimacy, with the establishment of certain specialty courts.63 For example, the United States Bankruptcy Court, established in 1978, has jurisdiction over all cases arising under the United States Bankruptcy Code;64 the Delaware Court of Chancery, established in 1792, was established to adjudicate disputes arising out of complex business transactions;65 and similar specialist venues are emerging to address patent and trademark disputes.66 However, the US legal system has not developed a specialist mechanism for addressing art disputes.
In light of the absence of a system dedicated to art disputes, and in light of the often international nature of art transactions, the AiA began formulating a tribunal to do so. In 2014, the AiA announced the formation of the Authentication in Art Alternative Dispute Resolution Board (AiA ADR) for the purpose of resolving authenticity disputes outside the traditional court settings.67
The CAfA procedures were designed to address two primary issues in the administration of justice relating to art disputes: decisional accuracy (i.e., the ability to correctly apply the appropriate law to the facts of a dispute) and procedural legitimacy (i.e., the ability of a decision-making system to provide citizens with a sense of voice and fairness in the proceedings).70
The process of making accurate decisions requires that a fact-finder (1) makes correct determinations about the facts, including which facts are the most relevant to resolving the dispute, and which are credible; (2) identifies the correct law that governs the dispute; and (3) correctly applies the law to the facts of the case to reach an appropriate verdict.71 An error at any of these stages diminishes the fact-finder's ability to make an accurate decision.72
CAfA was designed to '“flatten the learning curve” in [art disputes] by having experienced art lawyers be the deciders. Practitioners should be better equipped to understand and more properly weigh the evidence in a manner that the market will accept'.73
Procedural legitimacy refers to the willingness of a litigant (and the market generally) to abide by a decision maker's judgment independent of the outcome of the dispute.74 Several procedural factors influence people's perceptions of the legitimacy of a decision-making body:75 the decision maker's neutrality (that is, that the decision is based on rules and facts instead of the decision maker's intuition),76 the degree of respect and dignity that the decision maker confers on the parties,77 the amount of voice and control that the parties have over the legal dispute,78 and the degree to which parties can trust the decision maker's motive to be fair.79
Processes that are more adversarial in nature – for example, in jury trials, the use of cross-examination of witnesses and greater control over the flow of information to the fact-finder – are considered to be more procedurally legitimate than accurate.80 On the other hand, procedures that are more inquisitorial in nature – such as bench trials, court-appointed expert witnesses, and an increased role for the fact-finder – are considered more accurate than procedurally legitimate.81
Achieving legitimacy requires balancing the adversarial process with the inquisitive process towards an end goal of accuracy and fairness.82 The rules of CAfA were drafted to specifically balance these considerations. As the CAfA working group explained: 'Everything we analyzed came back to the questions of whether this is something the market will likely accept, and whether this is something that best positions the tribunal to render the right results.'83
IV CAFA's structure and procedure
CAfA's working group focused on creating a structure that implemented these dual aims, with the efficiencies often found only in arbitration:
the court's arbitrations will function like traditional alternative dispute resolution: while the parties are free to customize their rules to a large extent, the default rules provide for . . . more limited discovery than you would have in court, and with international enforcement through treaties such as the New York Convention . . . the hearings can be conducted anywhere in the world, based upon party and arbitrator agreement.84
The default rules provide for the following.
i The arbitration panel
CAfA's rules provide that an arbitration panel composed of either one or three arbitrators85 is appointed from a pool of international lawyers with expertise in art law.86 The pool of potential arbitrators is composed of:
highly qualified international arbitration professionals coupled with a pool of leading experts in the fields of forensic science and provenance research regarding art objects qualified to resolve disputes in the wider art community, including matters involving international collectors, art historians, art market professionals, financial institutions, and other stakeholders in the international art market.87
The high calibre of the pool should add credibility to CAfA's decisions and provide comfort to parties that their dispute will be resolved by a panel with the specific expertise required in art disputes, which is not always found in the court system.88
The tribunal also employs various experts for particular circumstances where specific knowledge is required.89 These experts are sourced from a pool of art historians, materials analysts, forensic scientists and provenance researchers; scholars of a particular artist may also be retained if needed.90 The parties are able to appoint experts on other issues, but any such evidence must not compete with or supplement the tribunal-appointed expert's evidence on forensic science or provenance.91 The purpose is 'to give the most comfort possible to the market that authenticity decisions are based on truly neutral expert analysis'.92
As with the pool of arbitrators, the parties' confidence in the process and whether decisions rendered under these rules will command the respect of the art market will depend on the quality and independence of the experts in the pool.93
iii Technical process adviser
If a case involves highly technical issues, for example in relation to an object's authenticity, with the parties' consent, the tribunal may appoint a technical process adviser from an expert pool to liaise between experts and the panel, and to facilitate the gathering and exchange of evidence.94 The technical process adviser will act under the tribunal's direction but, if requested, may draft proposed procedural orders for adoption by the tribunal.95 The assistance from the technical process adviser ensures that the panel is fully informed on and understands the issues of the case, bringing additional trust and legitimacy to the process.
iv Panel decisions
Another important aspect of CAfA's rules is that the final arbitration decisions will be published and will identify the art at issue, while the proceedings themselves will be confidential and will protect the parties' anonymity.96 Publishing the result 'was deemed essential [by the working group] to ensure market understanding and acceptance of the results'.97
V Update on CAFA since launch
CAfA officially began accepting cases on 1 April 2019.98 Currently, members of the art market are being encouraged to include CAfA's model arbitration clause in all art-related contracts.99 Parties can either agree to CAfA jurisdiction over their dispute through a contractual clause in advance, or they can refer an existing dispute to CAfA through a submission agreement.100
1 Luke Nikas and Maaren A Shah are partners at Quinn Emanuel Urquhart & Sullivan, LLP. Their colleagues Jeanine Zalduendo and Paul B Maslo provided essential assistance with this chapter.
2 M H Miller, 'The Big Fake: Behind the Scenes of Knoedler Gallery's Downfall', Art News (25 April 2016), www.artnews.com/art-news/artists/the-big-fake-behind-the-scenes-of-knoedler-gallerys-downfall-6179/.
4 CAfA, About Us, available at www.cafa.world/.
5 'New York Faculty Helps Create New Art Tribunal at The Hague', Sotheby's Institute of Art, www.sothebysinstitute.com/news-and-events/news/new-york-faculty-helps-create-new-art-tribunal-at-the-hague.
6 Laura Gilbert, 'New Tribunal Aims to Provide Expertise and Impartiality for Art Disputes', The Art Newspaper (7 May 2018), available at www.theartnewspaper.com/news/new-tribunal-aims-to-provide-expertise-and-impartiality-for-art-disputes.
8 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251, 23 S.Ct. 298, 47 L.Ed. 460 (1903) (Holmes, J).
9 Brigit Katz, 'New Court at the Hague Will Deal Exclusively with Art Disputes', Smithsonian Magazine (11 May 2018), available at www.smithsonianmag.com/smart-news/new-court-hague-will-deal-exclusively-art-disputes-180969052/.
10 See footnote 5, above.
11 17 U.S.C. § 107. 'Copyright law  must address the inevitable tension between the property rights it establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them – or ourselves by reference to the works of others, which must be protected up to a point. The fair-use doctrine mediates between the two sets of interests, determining where each set of interests ceases to control.' Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006).
12 Under 17 U.S.C. § 107, fair-use factors are: (1) the purpose and character of the use, including whether the use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for or value of the copyrighted work.
13 Davis v. The Gap, Inc., 246 F.3d 152, 174 (2d Cir. 2001) (relying on Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994)); Blanch, 467 F.3d at 251 (same).
14 Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 382 F. Supp. 3d 312, 325 (S.D.N.Y. 2019) (quoting Campbell, 510 U.S. at 579).
15 467 F.3d 244 (2d Cir. 2006).
16 id., at 249.
17 id., at 255.
18 id., at 248, 252.
19 id., at 252–253 (quoting Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 142 (2d Cir. 1998)).
20 See Rogers v. Koons, 960 F.2d 301 (2d Cir.), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992); Campbell v. Koons, No. 91 Civ. 6055, 1993 WL 97381, 1993 U.S. Dist. LEXIS 3957 (S.D.N.Y. 1 April 1993); United Feature Syndicate v. Koons, 817 F.Supp. 370 (S.D.N.Y. 1993).
21 L Donald Prutzman, 'Significant Copyright Issues – Treatment Of “Appropriation Art” Under United States Copyright Law', New York State Bar Association International Law and Practice Section (2016) at 7; Rogers, 960 F.2d at 304.
22 Peter Jaszi, 'Is There Such A Thing As Postmodern Copyright?', 12 Tul. J. Tech. & Intell. Prop. 105, 114–115 (2009).
23 Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013). 'Prince's work, going back to the mid 1970s, has involved taking photographs and other images that others have produced and incorporating them into paintings and collages that he then presents, in a different context, as his own. . . . As Prince has described his work, he “completely tr[ies] to change [another artist's work] into something that's completely different”.' id., at 699 (citation omitted).
24 id., at 698.
25 id., at 699.
26 id., at 698, 699, 707.
27 id., at 707 (emphasis added). 'The Second Circuit found that a transformative work need not refer to the original copyrighted work, and thus Prince's lack of justification for the copying was of little moment. The district court, however, found Prince's lack of artistic intent and justification for his use of Cariou's copyrighted photographs to be a strike against fair use.' Sergio Muñoz Sarmiento and Lauren van Haaften-Schick, 'Cariou v. Prince: Toward A Theory of Aesthetic-Judicial Judgments', 1 Tex. A&M L. Rev. 941, 947 (2014). The Second Circuit does not describe this 'reasonable observer'. Concern exists that the Cariou standard eviscerated the United States Supreme Court's ruling in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (footnote 8, above) by mandating that trial and appellate judges under their jurisdiction approach visual-art copyright lawsuits as art critics and arbiters of taste, and not necessarily as judges in a court of law. Muñoz Sarmiento and van Haaften-Schick, at 947.
28 Cariou, 714 F.3d at 706–707.
29 id., at 707–708. 'Notably, although the Second Circuit describes Prince's artistic technique in detail, it does not address Cariou's at all. His method was, however, discussed by the district court opinion, where the court explained that Cariou's use of photography is specific and learned, executed using a medium format camera and requiring a mastery of darkroom technique.' Muñoz Sarmiento and van Haaften-Schick (footnote 27, above), at 946.
30 id., at 706.
31 id., at 707.
32 ibid. (quoting Campbell, 510 U.S. at 579).
33 id., at 711.
34 id., at 713 (Wallace, J (concurring in part, dissenting in part)).
36 id., at 713–714.
37 Cariou v. Prince, 784 F. Supp. 2d 337, 350 (S.D.N.Y. 2011).
38 id., at 355–356.
39 382 F. Supp. 3d at 316.
40 id., at 326.
43 Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021).
45 Google LLC v. Oracle Am., Inc., 141 S.Ct. 1183, 1203 (2021) (quotation marks omitted).
46 Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 408–409 (2001).
47 Cariou, 714 F.3d at 706.
48 Cat Weaver, 'Law vs. Art Criticism: Judging Appropriation Art' (5 May 2011), available at https://hyperallergic.com/23589/judging-appropriation-art/ (emphasis in original). Other commentators have also criticised the Cariou decisions. See, e.g., Muñoz Sarmiento and van Haaften-Schick (footnote 27, above), at 947, 957 (noting that the Second Circuit's holding in Cariou reduces the 'judicial evaluation of fair use . . . to a formalist analysis of pure image, merely considering what comprises the surface, rather than paying heed to the facts as they stand'); Barry Werbin, 'The “Transformation” of Fair Use After Prince v. Cariou', February 2014, available at www.herrick.com/publications/the-transformation-of-fair-use-after-prince-v-cariou/ ('Based on the Second Circuit's decision, it is presumably now up to courts to determine how a reasonable observer would assess the transformative nature of a secondary work in assessing a fair use defense. At least within courts in the Second Circuit, this determination may now be made in the absence of any statement of meaning or intent from the allegedly infringing artist himself. As newly minted arbiters of potentially “transformative” works of art, judges will be looking more to the subject works themselves on their face to determine fair use.').
49 Of course, the debate currently taking place in the courts over artistic merit and expression is nothing new. For example, Serra v. U.S. General Services Administration details the battle to have Richard Serra's Tilted Arc removed from the Federal Plaza in lower Manhattan. 667 F. Supp. 1042, 1044 (S.D.N.Y. 1987), aff'd, 847 F.2d 1045 (2d Cir. 1988). 'Heated expressions of opinion, pro and con, proliferated on the location of Tilted Arc.' id. at 1045. A judge, 'whose court [wa]s located in the building adjacent to the Plaza, sent a letter to the GSA calling for “instant removal” of Tilted Arc', claiming that 'we who work here are left with a once beautiful plaza rendered useless by an ugly rusted steel wall'. id. (quotation marks omitted). 'One group claimed that the sculpture had destroyed the previously open plaza by obstructing free passage across the plaza and blocking an open view of the fountain; that it constitutes a scar on the Plaza and creates a fortress-like effect; that it is a target for graffiti; and that it is too large for its present site and violates the very spirit and concept of a plaza.' id. 'Others pointed to the sculpture as a message essentially expressing a commitment of our country to artistic expression as a vital element of our culture through the utilization of appropriated funds for this purpose and as a form of freedom for the artist to make his statement about the life and times in which the artist lives and works; and as an expression of the deepest values of our society.' id.
50 817 F Supp 167 (D.D.C. 1993), aff'd 36 F3d 127 (D.C. Cir. 1994).
51 id., at 167.
52 id., at 170–172.
53 id., at 170. Though believing the work was a forgery, Perls nonetheless stated that the work in question was as 'exact a copy as can be produced', which the court could not comprehend, given the practical impossibility of anyone to do so. id., at 171, 175.
54 id., at 170–172.
55 id., at 174–176. 'This conclusion follows despite the great weight that must be accorded the opinion of Perls and his premier credentials in respect to Calder's work.' id., at 174.
56 id. The defendant's expert was Linda Silverman, owner of Linda R Silverman Fine Art, Inc and former director of the contemporary art department of Sotheby's auction house, who had examined and appraised hundreds of Calder works. id., at 172.
57 Thome v. Alexander & Louisa Calder Found., 70 A.D.3d 88, 103, 890 N.Y.S.2d 16 (2009) (citing Ronald D Spencer, The Expert versus the Object: Judging Fakes and False Attributions in the Visual Arts (Oxford University Press, 2004), at 189).
58 Thome, 70 A.D.3d at 102.
59 id., at 103.
60 'A catalogue raisonné is regarded as a definitive catalogue of the works of a particular artist; inclusion of a painting in a catalogue raisonné serves to authenticate the work, while non-inclusion suggests that the work is not genuine', id., at 94 (quoting Kirby v. Wildenstein, 784 F Supp 1112, 1113 (S.D.N.Y. 1992)).
61 Thome, 70 A.D.3d at 100–101.
62 id., at 103. See also Thompson v. Andy Warhol Found. for Visual Arts, Inc., 103 A.D.3d 528, 529 (1st Dep't 2013) (noting that 'the market place is the appropriate place to resolve authentication disputes').
63 Justin Sevier, 'Redesigning the Science Court', 73 Md. L. Rev. 770, 786–787 (2014) (discussing Andrew W Jurs, 'Science Court: Past Proposals, Current Considerations, and a Suggested Structure', 15 Va. J.L. & Tech. 1, 24 (2010)).
64 id., at 786–787 (discussing Jurs at 26).
65 id. (discussing Jurs at 24–25; Anne Tucker Nees, 'Making a Case for Business Courts: A Survey of and Proposed Framework to Evaluate Business Courts', 24 Ga. St. U. L. Rev. 477, 480–482 (2007)).
66 Sevier (footnote 63, above), at 786–787 (discussing Matthew G Jacobs and Michael S Mireles, 'The Intersection of Intellectual Property and Antitrust Law: In re Independent Service Organizations Antitrust Litigation', 15 Transnat'l Law. 293, 297 (2002); Nancy Olson, 'Does Practice Make Perfect? An Examination of Congress's Proposed District Court Patent Pilot Program', 55 UCLA L. Rev. 745, 747–749 (2008)).
69 AiA Work Group Art & Law, available at https://authenticationinart.org/congress-2018/workgroup-art-law/. The working group comprised art law experts from around the world, including: William Charron (who chaired the group), lawyer at Pryor Cashman in New York City; Dr Friederike Gräfin von Brühl of K&L Gates LLP, Berlin; Shawn Conway, managing partner of the international arbitration law firm Conway & Partner; Luke Nikas, co-chair of the art litigation and disputes practice of Quinn Emanuel Urquhart & Sullivan, LLP, in New York City; Megan Noh of Cahill Cossu Noh & Robinson; Judith Prowda, a senior faculty member of Sotheby's Institute of Art and founding member of Stropheus Art Law; and Nicole Wallace, a barrister in the United Kingdom and founder of Art ADR Global.
70 Sevier (footnote 63, above), at 776.
71 id., at 796 (discussing John R Allison, 'A Process Value Analysis of Decision-Maker Bias: The Case of Economic Conflicts of Interest', 32 Am. Bus. L.J. 481, 492 (1995) (defining decisional accuracy as 'when the decision maker's inferences are as close as possible to actual events').
72 Sevier (footnote 63, above), at 796 (discussing Allison, 32 Am. Bus. L.J. at 492).
73 Pryor Cashman, 'First-of-Its-Kind Global Arbitration Court for Art Disputes Launching June 2018' (7 May 2018), available at www.prnewswire.com/news-releases/first-of-its-kind-global-arbitration-court-for-art-disputes-launching-june-2018-300643034.html.
74 Sevier (footnote 63, above), at 774–775 (discussing David Marcus, 'From “Cases” to “Litigation” to “Contract”: A Comment on Stability in Civil Procedure', 56 St. Louis U. L.J. 1231, 1231 (2012)).
75 id. (discussing Tom R Tyler, 'Social Justice: Outcome and Procedure', 35 Int'l J. Psychol. 117, 121 (2000)).
76 id., at 800–801 (discussing Tyler, 35 Int'l J. Psychol. at 122).
78 id. (discussing Tyler, 35 Int'l J. Psychol. at 121–122).
79 id. (discussing Tyler, 35 Int'l J. Psychol. at 122).
80 id., at 816.
82 Justin Sevier, 'The Truth-Justice Tradeoff', 20 Psychol. Pub. Pol'y & L. 212 (2014).
83 Cashman (footnote 73, above).
84 Mike Fox, 'Alumnus Spearheads New Art Arbitration Court', University of Virginia School of Law (23 July 2018), available at www.law.virginia.edu/news/201807/alumnus-spearheads-new-art-arbitration-court (last accessed 10 November 2020).
85 CAfA Arbitration Rules, Article 12.2, in force as of 1 January 2019, available at www.cafa.world/docs/CAfA%20Arbitration%20Rules.1.pdf.
86 id., at Article 11.6, and Explanatory Notes AiA/NAI (Netherlands Arbitration Institute) Adjunct Arbitration Rules, 1.4, 2.1.
87 Explanatory Notes AiA/NAI Adjunct Arbitration Rules, 1.4.
88 Jane Parsons and Claire Morel de Westgaver, 'A New Arbitral Institution for the Art World: The Court of Arbitration for Art' (17 June 2018), available at http://arbitrationblog.kluwerarbitration.com/2018/06/17/a-new-arbitral-institution-for-the-art-world-the-court-of-arbitration-for-art/.
89 Marilyn Hayden, Dr Sharon Hecker, 'Cheers: A New Court for Resolving Art Disputes', Center for Art Law (29 March 2019), available at https://itsartlaw.org/2019/03/29/cheers-a-new-court-for-resolving-art-disputes/.
90 CAfA, Arbitration Rules, (footnote 85, above), at Article 29.1; Explanatory Notes AiA/NAI Adjunct Arbitration Rules, 2.2.
91 id., at Article 28.7.
92 Cashman (footnote 73, above).
93 Parsons and Morel de Westgaver (footnote 88, above).
94 CAfA, Arbitration Rules (footnote 85, above), at Articles 29.1, 29.7–29.9; Explanatory Notes AiA/NAI Adjunct Arbitration Rules, 8.
96 id., at Article 51.
97 Cashman (footnote 73, above).
98 Laura Gilbert, 'The Hague's art arbitration court to open in April', The Art Newspaper (21 March 2019), available at https://authenticationinart.org/pdf/artmarket/cafa-opens-april.pdf.
99 Constanza Trofaier, Young ICCA Skills Training Workshop on Art Law and International Arbitration, London, 20 September 2019, available at www.youngicca.org/young-icca-skills-training-workshop-art-law-and-international-arbitration.
100 Parsons and Morel de Westgaver (footnote 88, above).