Our Litigators of the Week are Quinn Emanuel Urquhart & Sullivan partners Luke Nikas and Maaren Shah, who racked up a pair of wins in the rarefied world of art litigation. 

On behalf of the Andy Warhol Foundation for the Visual Arts, they convinced a federal judge in New York to toss a suit that could have impacted thousands of works by the pop artist. Noted photographer Lynn Goldsmith claimed that Warhol infringed her copyright when he used her 1981 photograph of the musician Prince in a series of silkscreen images. Instead, U.S. District Judge John Koeltl in Manhattan ruled it was fair use.

Nikas and Shah also won dismissal of most of a case against their client, the Morgan Art Foundation, in a heated battle with the estate of Robert Indiana—famous for his “LOVE” sculpture and image that once adorned a postage stamp. The foundation and estate are fighting over rights to Indiana's works

Nikas and Shah discussed the cases with Lit Daily.

Lit Daily: You notched back-to-back wins in two cases involving the works of major modern artists. Who are your clients and what was at stake in each case?

Luke Nikas:  Both cases will define the artists' legal legacies. Our client in the Andy Warhol case is the Andy Warhol Foundation for the Visual Arts. The foundation's charitable activities span the globe and support artists and the visual arts. One of the many ways the foundation funds its charitable activities is by licensing images of Warhol's works. In many of those works, Andy Warhol used images of people, goods, and companies.  

But as viewers of Warhol's art, we're not connecting with the person or the actual object he depicted—we're consuming the image of them that's repeatedly marketed and distributed throughout society. It's a transformative message and aesthetic that has made an invaluable contribution to the arts.  

In this case, the photographer who took the photographs of the singer Prince that Warhol referenced in his paintings challenged the entire message and process of Warhol's creations. She claimed that Warhol infringed her copyright by using her photograph as the source image for his celebrity portraits of Prince. Her arguments put at risk the legal legitimacy of Warhol's iconic works and the Foundation's licensing projects.

Maaren Shah: The Robert Indiana case also has much more at stake than just money. What is truly at stake, and what has been imperiled by the actions of the various defendants in the case, is the legacy and market of one of the most recognizable American contemporary artists, Robert Indiana. 

Robert Indiana created the iconic “LOVE” stacked image, as well as many other important works. Our clients, including Morgan Art Foundation, were Robert Indiana's long-time patrons and supporters from the 1990s until his death last year. They believed in and supported him when the rest of the art world shunned him, and revitalized his market and legacy to where it is today. 

They own the copyright and reproduction rights in many images of his works and were entrusted with protecting and policing those rights during Indiana's lifetime and after. They brought this lawsuit to protect those rights and to protect Indiana's legacy.  

How did you come to carve out a practice in art litigation? Personally, are you connoisseurs? Or artists yourselves?

Luke Nikas: After clerking, I began my legal career litigating complex commercial cases, from antitrust and mergers and acquisitions disputes to First Amendment and securities cases. About a decade ago, I began representing the Warhol Foundation in an antitrust case.  

I have always treasured the arts—the history, the culture, the personalities—and this case provided real insight into what the art world needed. It needed a trial lawyer who had training at the best firms and experience in the most complex cases, combined with deep knowledge of the art history, artists, customs, and economics of the art world. I studied every detail imaginable and have been fortunate since to have navigated numerous clients through their toughest art-related disputes.   

And I can't praise our firm enough for the support it provides to this practice; the quality of the lawyers and staff, as well as everyone's team-oriented attitude, are unmatched. I'm definitely not an artist—no talent there.  But I do love to collect art that has a meaningful connection to my life or to intellectual debates or messages I find fascinating and important.

Maaren Shah: I have always had a personal interest and involvement in the arts and have longstanding connections to the arts community. But before Luke came to our firm, QE did not have a robust art litigation practice. My practice until that point had focused mainly on complex commercial litigation, trial practice, and appeals, primarily in the financial services sector.  

Given my background and relationships in the art world, however, once Luke joined the firm it was a natural synergy for us to work together to develop QE's art litigation and disputes practice into the market leader.  

What were some of your biggest prior art-related cases?

Luke Nikas:  There are quite a few candidates that I found interesting and challenging: Litigating a cross-border dispute for a gallery in Paris and New York, suing Warhol's former bodyguard to recover a Warhol painting of Liz Taylor, and tracking down and recovering a Picasso from a dealer in Florida are just a few.  

But probably near the top is a case representing the former director of Knoedler Gallery in 10 civil lawsuits and the parallel government investigation regarding the sale of approximately $60 million of forged works previously thought to be by famous Abstract Expressionist artists, such as Jackson Pollock and Mark Rothko. Several collectors who had acquired these forgeries sued the gallery, the director, the forger, and other people involved. 

The cases lasted about seven years, required depositions and trial testimony from dozens of the most knowledgeable art experts in the world, and, it turns out, involved dozens of works of art that had hung in prominent museums and were published in major art books before they were revealed to be forged. 

In the end, the government investigation was resolved favorably, there were no verdicts against my client, and she continued to operate her art gallery successfully.  The case explored just about every corner of the art world there is.   

What makes these fights unique?

Maaren Shah: The art market tends to function very differently than many other commercial or commodities markets.  And success in these cases really depends on a deep understanding of the nuances of that market, the relevant players, and the way information is absorbed by the market.  

These cases can also be very personal and the stakes often go beyond money.  For example, the protection of an artist's legacy, the legality and distribution of artistic works, and the balance that we as a society want to strike between protecting past creative endeavors and encouraging new creative expression. These are not black and white issues, and they hit people's emotional core. 

How did you come to be involved in the Warhol dispute?

Luke Nikas: I have represented the Warhol Foundation for almost 10 years in its litigation and regarding various issues that come up. It is a great organization, with a highly principled staff that has brilliantly advanced Warhol's legacy. So I was involved when we first received the inquiry from [photographer] Lynn Goldsmith and then, shortly after, from her lawyer.  It became clear to us that Goldsmith would not resolve the case on acceptable terms. We did what we needed to do to protect our rights. 

What were your overarching themes or arguments in the Warhol case?

Maaren Shah:  These paintings are Warhols. Period. That was our main theme. There is no question that Andy Warhol changed the landscape of contemporary art in his time, and that his art is widely held to convey a criticism of consumerism and society's idolization of branded images and celebrities, in a way that is entirely divorced from the underlying images themselves. That is the hallmark of fair use.  

And if Warhol's work, which transforms the underlying image in both aesthetic look and meaning, is not considered fair use—then what is?  We were very pleased that the district court agreed completely with our view, noting in its decision that these works are “immediately recognizable as a 'Warhol'” rather than a replica of the underlying photographic image. 

In a footnote, Judge John Koeltl noted that counsel for Goldsmith from Herrick Feinstein suggested that the fair use test is “almost like you know it when you see it.” What's your response?  

Maaren Shah: That might be true in some cases, but the question of fair use has become significantly more complicated in recent years. The courts are really grappling with this issue, in terms of how far an artist can go in sampling or appropriating the work of another artist and still remain within the bounds of copyright law. Things like the constant access to images through social media, iPhone snaps, and Instagram are really changing the landscape here. And there is no easy answer. Think about Richard Prince's Instagram series. That is truly art of our time. So while some cases might involve “you know it when you see it” fair use, I do not think it is always that clear.   

Switching gears, how did you come to represent the Morgan Art Foundation?

Luke Nikas: Early last year, I was contacted about a potential dispute involving Robert Indiana. The potential scope of the case was not clear from the surface. But when we began digging into the facts, we uncovered sordid details about how Indiana was exploited in the last years of his life.  We also saw a coordinated scheme to freeze out our clients, who are the leading experts in Indiana's work and were his patron.  

The existing and potential harms were extraordinary, so we drafted and filed a highly detailed complaint that told the story about Indiana's last few years and the wrongdoing that had occurred. Indiana died the day after we filed the complaint, and since then the situation has escalated into litigation sprawling across multiple venues and multiple cases. 

The fight has been described as “bitter and tangled.” What are your main arguments on behalf of the Morgan Foundation? What happens next?

Luke Nikas: That might be an understatement. The problem in many art disputes is that there's a lot of money at stake, without much regulation in place, and newcomers and grifters often look to get a cut from the vulnerable artist or the estate. 

But it takes very special expertise to understand the proclivities of the art market, the history of an artist and his or her works, and the way to protect and advance an artist's legacy. For example, I can think of artists whose markets have fallen off a cliff—with their new art worth under $50,000, when years ago they sold art for over $1 million. 

Unfortunately, in this case, we are locked in a bitter war with an estate that, in our view, is severely harming Indiana's legacy.  We intend to remedy that harm and pursue this case to the end: We have an oral argument next month on another motion we filed against the estate, and we have a sanctions motion pending against the estate and a co-defendant because we've learned that much of Robert Indiana's email account was deleted, we believe, after this litigation was filed—a fact that the estate concealed from us for months.  

One step at a time, we intend to show that our clients have valid agreements with Indiana to fabricate his works, that our clients entered valid agreements that gave them ownership of the intellectual property in Indiana's most significant works, and that their dealings with Indiana were proper at all times. The first huge step was this one—getting the estate's core claims dismissed.

It strikes me that there's a tension in both of these cases—on one hand, an artist with a brilliant creative vision. And on the other, well, there's the commercial reality that there's a lot of money on the line. How do you navigate that, and remain sensitive to the artist's legacy?

Maaren Shah: This is a delicate balance. In the end, we are here to help our clients get the outcome that they want—be it a business solution, a legal resolution, a matter of principle, or something else. These cases are good examples of that.  

In both of these cases, while there are commercial consequences, of course, the end goal has always been to protect the artist and his legacy. We are very mindful that the outcomes of cases like these can have a broad social impact, and we take that into account both in choosing the clients we will represent and in litigating the cases.