Law and the Visual Arts Professor Alexandra Roosa 10/4 Wesselmann v. N.Y.S 2d 263 (Sup. Ct. 1996) • The first and second causes of action in the complaint are for breach of fiduciary duty and violation of the Arts and Cultural Affairs Law, respectively. They both seek permanent injunctive relief. Wesselmann v. N.Y.S 2d 263 (Sup. Ct. 1996) • Defs.’ position is that this statute is inapplicable because they are not art merchangts, because they did not sell Art, because TT did not deliver the prints to them, b/c prints were not of TT’s own creation, b/c corp. can not be artist, b/c multiples of art are not fine art. Wesselmann v. N.Y.S 2d 263 (Sup. Ct. 1996) • Defs.’ are art merchants w/in the meaning of section 11.01.02.- which defines art merchant as one who deals “exclusively or nonexclusively” in “fine art or multiples” or who: “by his occup. holds himself out as having knowledge or skill peculiar to such works, or to whom such knowledge or skill may be attributed by his employment of an agent or other intermediary who by his occupation holds himself out as having such knowledge or skill.” Wesselmann v. N.Y.S 2d 263 (Sup. Ct. 1996) • Defs.’ investment of money to pay for the publishing of the multiples, does not as they contend, establish that the Art was not consigned to them pursuant to section 12.01.1(a) as the statute provides that the consignor/consignee relationship arises whenever the art work is delivered for the purpose of sale “on a commission, fee or other basis of compensation…” Wesselmann v. N.Y.S 2d 263 (Sup. Ct. 1996) • The multiples are prints of TT’s own creation b/c the term “artist” as applied to multiples is defined as “the person who conceived or created the image which constitutes the master from which the individual print was made.” • Ct. states that it is apparent from the record that Defs. did sell the Art,although they now claim that they merely “marketed” and “distributed” it. Wesselmann v. N.Y.S 2d 263 (Sup. Ct. 1996) • Ct. finds that TTs’ have established their right to a preliminary injunction pursuant to CPLR 6301. They have shown a likelihod of success on the merits of the claim…and have demonstrated that is likely that they will succeed in proving their claim that the Art is trust property in Defs.’ hands held for the benefit of TTs’” Naber v. Steinitz N.Y.L.J., Jan 27, 1992 at 24 (Sup. Ct. 1992) • TT moves for a temporary restraining order and preliminary injunction enjoining defs. from removing from this state or from defs’ premises, from transferring, selling, pledging, assigning, dismantling otherwise disposing of certain artwork.” • TT also brought additional motion pursuant to CPLR 2701 seeking an order directing defs. to turn over his artwork. Naber v. Steinitz N.Y.L.J., Jan 27, 1992 at 24 (Sup. Ct. 1992) • In order to obtain a preliminary injunction the moving party must demonstrate three elements: (1) a likelihood of success on the merits, (2) irreparable injury absent granting the preliminary injunction, (3) a balancing of the equities in favor of the moving party • Here, Ct. states that TT sufficiently establishes a likelihood of success since he contends that he is a consignor and as such has both title and right to possession superior to that of a consignee. Naber v. Steinitz N.Y.L.J., Jan 27, 1992 at 24 (Sup. Ct. 1992) • Re (2) Ct states that the Defs. Cannot deny that the works of art are unique since they agreed to display them for sale on that basis and if Defs. are permitted to see these paintings without TT’s consent, it is clear that TT will be irreparably harmed. • Re (3) Fact that Defs. State their intention to sell art in order to recover losses from “Big Sculpture” strongly supports TT’s motion for preliminary injunction- purpose of which is to preserve status quo for litigation. Naber v. Steinitz N.Y.L.J., Jan 27, 1992 at 24 (Sup. Ct. 1992) • Re TT’s request to have all artwork returned, Ct finds that it would not be equitable if Defs. were required to return all 50 pieces before case was adjudicated. • TT has established superior title to 24 pieces of artwork created prior to Agmt - motion pursuant to 2701 is granted for these 24. TT’s motion for prelim. injunction enjoining Defs. from removing from this state or from Des.’ premises or from transferring, selling, pledging, assigning, dismantling or to otherwise disposing of artworks is granted.