Art

Schnader’s Art Law team provides diverse legal services to the fine art and performing art markets through an interdisciplinary approach that efficiently and effectively fulfills our clients’ needs. The team draws from a number of Schnader’s practice groups, including corporate, finance, litigation, intellectual property, non-profit, and trusts and estates. Our art-based clients include artists, galleries, dealers, auction houses, wealth managers, financial advisers, art funds, municipalities, performing art houses, recording studios, museums, institutions of higher education, design and recording arts academies, culture centers, trusts, estates, lenders, and family offices.

Art Finance 

Over the past several years, Schnader’s finance attorneys have worked on a number of financial transactions in the booming art finance market. Schnader helps its clients fulfill a novel set of goals in a period in which art constitutes not only a valuable collectable, but a strategic asset. Our lawyers have worked with lenders and borrowers as well as some of the top art galleries, auction houses, museums, foundations, and art storage facilities around the world in connection with art finance transactions. Representative art finance transactions have included:

• A $525 million non-recourse debt facility in the first securitization to use a new asset class–theatrical film rights–as collateral.
• A $100 million credit facility for a specialty lender and six of its affiliates which enabled the lender to establish and fund an asset-based lending program secured by fine art with a western regional bank.
• A $12 million loan facility for two Los Angeles art collectors secured by 35 contemporary artworks located in seven U.S. locations. The art included works by Jeff Koons, Takashi Murakami, Yoshitomo Nara, Julian Schnabel and others.
• A credit facility for a Bermudian specialty lender and its affiliates which enabled the lender to establish and fund a fine art finance program with a Bermudian bank.
• A loan to a Los Angeles-based art advisor for the purchase of a 2006 work by Damien Hirst from the Gagosian Gallery.
• A loan to an Israeli art dealer for the purchase of a work by Francis Bacon.
• A Bermuda-based specialty lender in a loan to an Israeli tech entrepreneur secured by 49 contemporary artworks including works by Irving Penn, Pablo Picasso, Robert Rauschenberg, Gerhard Richter, Andy Warhol and others.

Corporate Counsel 

Schnader’s corporate attorneys regularly counsel museums, performing arts institutions, auction houses, art foundations, artists, dealers, galleries, individual collectors, consigners, colleges and universities, culture centers, and other not-for-profit entities on a variety of issues including corporate formation and governance, fundraising, compensation, employment issues, leasing, intellectual property, performance contracts, nonprofit status, and facility construction and expansion financing. We also serve as officers and directors of a number of art-related entities and performing arts institutions, and have an active practice representing artists in a pro bono capacity through the Philadelphia Volunteer Lawyers for the Arts non-profit organization.

Our representative transactions include:

• Represented municipal interests in having Dream Garden designated as an historic object that cannot be removed from the lobby of a private building in Philadelphia. Dream Garden, 1916, is a 15 × 49-foot mosaic of more than 100,000 pieces of favrile glass designed by Louis Comfort Tiffany based on a painting by Philadelphia native Maxfield Parrish. Dream Garden is one of only three such works undertaken by Tiffany Studios that is still in existence.
• Represented a real estate developer and its partner, an arts development entity, in closing a $21,000,000 new markets tax credit loan financing to finance a 20,000 square foot arts and culture center in New York City.
• Represented a university regarding the installation of artworks in connection with the renovation of a student center.

Copyrights, Trademarks, and Other Intellectual Property Rights

Schnader assists clients in protecting original works of authorship by obtaining registration in the U.S. Copyright Office. We also counsel clients on copyright fair-use issues. Our firm provides copyright services for a variety of clients in the creative arts, including authors, musicians, writers, painters, furniture and jewelry designers, as well as copyright services related to websites, audiovisual works, and computer software. We also advise clients on issues involving ownership and adaptation of works that may be subject to copyright, including transfers of ownership and related recordations. We monitor and enforce clients’ rights and secure compliance with settlements arising from copyright proceedings. We also assist clients with counseling and drafting for licensing negotiations and agreements.

Representative matters include:

• Represented clients in the publishing industry in licensing copyrights for translated works and the original works in English.
• Prepared agreements to license original compositions and recorded performances by composer/musician to publisher.
• Counseled a copyright owner on terms of agreement transferring rights to produce movies and television series based on a book series.

Schnader’s Intellectual Property Practice Group also registers, maintains, and protects trademarks for domestic and foreign clients. Our docket of close to 2,000 U.S. and foreign applications and registrations includes marks used in a broad range of industries. We also oversee the trademark portfolios of higher education entities, comprising marks associated with academic and athletic programs. We advise our clients on selection and protection of brand names, slogans, and source identifiers to distinguish their goods and services from those of competitors. We evaluate the benefits of securing trademark registrations throughout the world and handle the registration process. We represent clients in contested proceedings before the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office. In addition to searching and clearance of new marks, we also perform the important functions of monitoring and enforcing our clients’ rights. As with copyright, we also assist clients with counseling and drafting for licensing negotiations and agreements.

Representative matters include:

• Develop and protect university trademark portfolios, including coordinating efforts of university personnel and in-house counsel, to maximize licensing fees.
• Protected marks on behalf of a university against unauthorized use by various business consulting services companies.
• Counseled client on the selection and adoption of new names and logos for its various gaming activities and registered the selected marks in the U.S. Trademark Office.
• Guarded a well-known food franchisor’s mark against infringing use by one of its competitors.

Schnader’s Intellectual Property Practice Group also has experience in state publicity laws and frequently counsels clients on rights of publicity issues in the modeling, entertainment, and food and beverage industries. Additionally, our firm has worked with multiple educational institutions to develop and implement name, image, and likeness (NIL) policies for student athletes.  

Representative matters include:

• Prepared agreements to license use of client’s name, image, and likeness in the food and beverage industry.
• Negotiated with a modeling agency to ensure that client received adequate protection and compensation in connection with any commercialization of client’s name, image, and likeness in the modeling and acting industries.
• Worked with universities to draft and implement NIL policies for student athletes.

Litigation

Schnader’s attorneys have broad experience with the various types of litigation and dispute resolution issues that arise in the art market arena. We have litigated, among other matters, landmark copyright cases, complex art foundation governance issues, questions of provenance, artists’ rights under various common and statutory laws, collector’s obligations concerning bequests, art insurance recovery actions, violations of intellectual property rights, and enforcement of secured interests in art. Representative litigation matters include:

• Represented University of Notre Dame du Lac in 2016 in an action seeking recovery of ninety-seven Pre-Columbian figurines valued at $575,000. The collection had been purchased by the university’s Snite Museum of Art from a Sante Fe, New Mexico art dealer. The plaintiff claimed that the collection had originally belonged to his father, a retired banker and art collector whose ex-wife had stolen the collection in 1996 after divorce filings the previous year. Schnader filed a successful motion to dismiss based on lack of personal jurisdiction over Notre Dame.
• Represented the Barnes Foundation, which owns a world-renowned art collection, in obtaining permission to expand its board of trustees and change the restrictive terms of its trust indenture and other documents so that it could relocate its gallery from suburban Merion, Pennsylvania, outside of Philadelphia, to a more accessible location within the city. The trial court permitted the change and the Supreme Court exercised its extraordinary jurisdiction to dismiss an objector’s appeal. In later proceedings, the Barnes Foundation successfully defended against several petitions by opponents of the change to reopen the decree.
• Represented artists and conservators in connection with contract and payment disputes for work performed on historic buildings and structures. 
• Represented artist Cady Noland, who was sued, along with Sotheby’s, by an art gallery, Marc Jancou, which had consigned one of Ms. Noland’s works for sale. Invoking her rights under the Visual Artists Rights Act, Ms. Noland objected to the work being auctioned on the grounds that it had been damaged and she didn’t want it attributed to her.
• Represented illustrator/cartoonist Jules Feiffer regarding issues concerning the ownership of his artwork and intellectual property.
• Represented the Metropolitan Opera in a patent litigation.
• Represented artist Patrick Cariou in a landmark copyright fair use case, Cariou v. Prince, in which the well-known appropriation artist, Richard Prince, and his high-profile art gallery and its owner, Larry Gagosian, were sued for copyright infringement. The case was the subject of extensive press commentary and was closely watched in the art world.
• Represented a New York City art foundation concerning the provenance of certain Luc Bresson photographic prints. The foundation was granted summary judgment prior to discovery and the case was settled while the trial court order was pending appeal.
• Represented collector James Rich in a litigation commenced by the Michael Werner Gallery to enjoin Mr. Rich’s sale at auction of a Peter Doig painting, Red Boat (imaginary boys), 1959. The Michael Werner Gallery claimed that Mr. Rich was required by the bill of sale to donate the painting to a museum and should be barred from selling Red Boat.
• Represented the Metropolitan Opera regarding the proposed auction by a third party of the Met’s property. The Met’s property was withdrawn from the auction.
• Represented an investor in a major film project in litigation over distributions to investors.

Trusts and Estates

Schnader’s Trust and Estates Group regularly works with artists, authors, songwriters, actors, trustees, executors, and estates regarding the disposition of art. Since art today can provide the solution to liquidity, estate planning, and life insurance needs, Schnader’s attorneys assist our clients with strategies for including art into their larger plan, whether it be through estate and tax planning that includes art, the disposition of art through public or private sale, or the gifting of art to art institutions.