Art Case Update - February 2025
Installation view of Jordy Kerwick’s exhibition at TW Fine Art, Micro Macro Paintings of Love & Hate, 2019.
Guest Work Agency is your go-to source for art-related legal cases and law reform in Australia, as well as select cases internationally.
In this story, Alana Kushnir and our Paralegal Lily Kruglova report on the return of hundreds of artworks to their rightful owners in connection with an ongoing investigation into gallerist Tove Langridge, the landmark U.S. copyright summary judgment in the first fair use case involving AI, the UK’s plan to reform its current copyright regime and more.
Australia
Hundreds of artworks seized by Queensland Police are returned to artist owners in case involving charged gallerist Tove Langridge
In a significant development, 124 artworks seized by Queensland Police have been returned to their artist owners. The artworks, connected to an ongoing investigation into gallerist Tove Langridge, owner of TW Fine Art, is one of the first of its kind in Australia, where police charged a gallery owner for theft based on criminal grounds.
Investigations commenced in December 2023, when Queensland Police executed two search warrants, seizing numerous artworks consigned to TW Fine Art. Langridge was charged with 9 counts of stealing under section 391 of the Queensland Criminal Code. Consigned artworks were sold, but remittance of the sales proceeds was not passed on to the artist, as contracted.
Street artist charged and denied bail over graffiti on Melbourne city landmarks
The artist allegedly behind Melbourne’s well-known Pam the Bird street art was arrested in January this year following a 12-month investigation into the appearance of graffiti in various city landmarks. While a trial date has yet to be scheduled, Magistrate Johanna Metcalf acknowledged that the accused, Jack Gibson-Burrell, might remain in custody for up to 18 months whilst he awaits trial. Gibson-Burrell faces 50 charges including criminal damage, burglary, shoplifting, and the theft of a motor vehicle.
On 5 February, Magistrate Metcalf of the Melbourne Magistrates’ Court denied Gibson-Burrell’s bail, citing the potential risk that he may continue to engage in unlawful acts in an attempt to boost his social media profile.
Magistrate Metcalf also expressed concern about Gibson-Burrell’s documented history of violence when he was interrupted whilst vandalising public property. Metcalf cited a particular incident in Queensland where a transport worker was sprayed in the face, leaving him partially blinded.
Matthew Raoul White, an alleged accomplice of Gibson-Burrell, accused of spraying his own graffiti tags, was granted bail under strict conditions, including a nightly curfew.
International
U.S. Copyright Office releases newest January 2025 report on the status of AI and copyrightability
In its most recently issued report on Copyright and Artificial Intelligence, the United States Copyright Office has addressed the subject of copyright protecting works created using generative AI.
The Copyright Office concluded that artists could register copyright for works made with the assistance of AI, provided there is a sufficient level of human contribution. The specific type and level of human contribution will be assessed by the Office on a case-by-case basis. What the report makes clear is that the Office will not recognise “purely AI-generated material” as qualifying for copyright registration. It further clarifies that “where AI merely assists an author in the creative process, its use does not change the copyrightability of the output.”
The report signals a relatively low threshold for copyright registration, stating: “in most cases, humans will be involved in the creation process, and the work will be copyrightable to the extent that their contributions qualify as authorship.”
The Copyright Office’s new report also concluded that “the incorporation of AI-generated content into a larger copyrightable work” is acceptable for the purposes of copyright registration.
The first part of the report addressed digital replicas - the use of digital technology to realistically duplicate an individual’s voice or appearance. Yet to be addressed is the training of AI models on copyrighted works, licensing considerations and liability allocation.
Click here to read the full report.
U.S. court rules on landmark copyright summary judgment in first fair use case involving AI
In the first fair use case to be heard before a US court involving AI, the US District Court for the District of Delaware granted a landmark summary judgement on 11 February. The judgement found in favour of Thomson Reuters against ROSS Intelligence, a now defunct legal research company. Judge Stephanos Bibas ruled that ROSS had not satisfied fair use requirements emphasising that its purpose for copying was to create a directly competitive product.
However, the facts of this case differ significantly from many other pending AI copyright suits. It remains uncertain how closely other courts will follow this decision.
Thomson Reuters, owner of Westlaw, accused ROSS of using Westlaw’s headnotes and Key Number System (a numerical taxonomy classification system used for legal topics and cases) to train its AI model in order to better match legal questions with relevant case law. Importantly, ROSS did not directly use the headnotes and Key Number System to train its model. Instead, it hired a different company to create training data based on the headnotes and Key Number System. ROSS used this process following Thomson Reuters refusal to grant them a licence, believing that the AI tool formulated by ROSS would compete with Westlaw.
In its summary judgment decision, the Court acknowledged that Westlaw’s headnotes met the low threshold for originality and were copyrightable. It found that ROSS had infringed 2,243 of 2,830 asserted headnotes.
Notwithstanding this finding, the Court rejected ROSS’s fair use defence on the basis that ROSS’s product posed a direct threat to the market for Westlaw. Furthermore, its use was deemed not transformative enough, that it did not significantly alter or add new meaning to the copyright-protected material.
Click here to read the full judgment.
Insurance companies fight to dismiss a $19.7m claim over Basquiat forgeries seized from the Orlando Museum of Art
Liberty Mutual Insurance Company and Great American Insurance Company have denied a $19.7 million insurance claim by the owners of artworks seized by the FBI from the Orlando Museum of Art (OMA) last year. This argument is based on the property being ‘inauthentic’, therefore not covered under the policy.
Basquiat Venice Collection Group (BVCG), owners of the alleged Basquiat forgeries, claim to have acted in good faith and are entitled to the payout. They assert that the insurers failed to verify the work’s authenticity when BVCG was added to the insurance policy, and are therefore entitled to an insurance claim.
The insurers, on the other hand, sought a declaratory judgment affirming that forgeries do not constitute ‘covered property’ under the policy. Given that the artworks are not genuine they therefore hold no insurable value or only nominal value. The insurance companies believe that the works should be destroyed, subject to FBI and Department of Justice protocols.
It has been asserted by the insurers that BVCG misrepresented the authenticity of the works, given that as owners, they either knew or should have known that the artworks were inauthentic, and that the insurance company should therefore have no obligation to cover the claim.
On Friday, 17 January, U.S. District Judge Paul G. Byron ordered that OMA and BVCG schedule a mediation date within 14 days.
UK government introduces a reform that has the potential to transform the UK’s copyright regime
The UK government recently introduced a plan to reform the country’s copyright regime. It proposes to expand the UK’s exception for text and data mining, which currently applies only to research for non-commercial purposes under the Copyright, Designs and Patents Act 1998 s29A.
If implemented, this change would grant businesses the legal right to use copyright protected works for training AI models without obtaining permission or compensating from the copyright owner, provided that the owner has had the option to opt out.
The proposal has sparked significant debate, particularly among artists authoring copyright-protected works, including music, visual art, and literature.
If implemented, the specific methodology in which copyright protected material will be permitted for use is still uncertain. To address these concerns, the government launched a consultation that closed on 25 February, to explore issues including how creators can licence and receive compensation for the use of their work.
Read more here.
Germany approves a plan to reform the process of returning Nazi-looted art, including the establishment of a special arbitration court
Germany’s Federal Cabinet recently approved a reform designed to simplify the process of restitution for Nazi-looted art. Under the proposed changes, claimants would be able to seek arbitration for the recovery of artworks without requiring consent from its current owners. Additionally, the reform proposes the establishment of a specialised arbitration court dedicated to handling disputes related to Nazi-looted art.
Previously, restitution proceedings in Germany required both the claimant and the current owner of an artwork to consent to arbitration. Furthermore, the advisory committee responsible for reviewing such disputes were only permitted to issue non-binding recommendations with no enforcement mechanisms in place. The proposed reforms would allow victims of art looting to appeal directly to the new arbitration court, removing the requirement of the owner’s consent.
Germany is one of 44 nations who signed the 1998 Washington Principles on Nazi-Confiscated Art, which calls for a just and fair solution in the restitution of art confiscated during the Nazi era.
Read more here.
Street artist RETNA sues Heritage Auctions over alleged wrongful sale of his studio’s contents
Los Angeles-based Street artist RETNA has filed a lawsuit against Heritage Auctions following the auction house announcing the sale of the artist’s studio contents last month. The sale is expected to include numerous works by RETNA, as well as pieces by other artists, some of which are being offered without a reserve price, with estimates of $0.
The announcement of the sale follows the artist falling behind on rent payments, and the landlord wining a legal judgment allowing him to treat the contents of the artist’s studio as abandoned property under California’s civil code. The code stipulates that after 18 days of notice without response, landlords have the right to claim abandoned items, whereas everything valued over USD $700 must be auctioned.
RETNA, whose works have been shown at galleries worldwide, including the Los Angeles Museum of Contemporary Art, filed a suit in the U.S. District Court for the Central District of California, alleging that his landlord improperly seized the materials. He maintains that the property was never abandoned, rather stolen, and the landlord never intended to resolve the five-month dispute over rent, falsely inflated the debt, and refused to allow anyone to pay it. RETNA alleges that he remains the rightful owner of the studio’s contents, which he values at several million dollars. He also alleges that the works advertised by Heritage Auctions as authentic RETNA pieces are actually studio waste or works created by other artists.
Read more here.
Italy decided to maintain an unusually high VAT on art sales amid EU reductions
On 3 February 2025, Italian Parliament approved the Decreto Legge Cultura, confirming Italy will maintain its existing 22% VAT rate on art sales. This decision differs from Italy’s European counterparts including France (5.5%), Germany (7%), and Luxembourg (8%), who reduced their VAT rates on art in January 2025. These reductions align with the European Commission’s 2022 directive, allowing member states to lower VAT on art imports to a minimum of 5% in order to harmonise tax systems and prevent competitive disparities.
Italy’s lack of legislative action to reduce VAT rates may undermine its competitiveness in the art market, given the more favourable tax regimes in other countries. It may divert art sales and imports away from the country.
Read more here.