Art and Law

The Art Collective That Nike Sued for Pouring Human Blood on Its Sneakers Has Agreed to Recall the Shoes


The battle between Nike and the art and design collective MSCHF has finally been settled.

Last month, the collective teamed up with rapper Lil Nas X to release “Satan Shoes,” a series of modified Nike Air Max 97s sneakers with drops of human blood mainlined into the soles. Priced at $1,018 per pair and produced in an edition of 666, the shoes sold out in less than a minute.

But not everyone was a fan—especially not Nike, which sued MSCHF for trademark infringement and was subsequently granted a temporary restraining order against the studio by a U.S. District Court judge. 

Now, as part of an out-of-court settlement with the clothing company, MSCHF will offer to purchase back the sneakers from each buyer at the original price, according to a statement Nike provided to Midnight Publishing Group News. The collective will also offer refunds to those who bought “Jesus Shoes,” a 2019 series of altered Nike Air Max sneakers with holy water from the River Jordan injected into the soles.

Whether or not customers will actually return the shoes is another question. The refund will likely provide little incentive, given the robust resale market. Numerous pairs of Satan Shoes are available on eBay now with price tags ranging from to $3,800 to $6,666.

Further details about the deal were not disclosed, but it effectively ends the lawsuit between the company and the art collective. 

“The parties are pleased to put this dispute behind them,” Nike said in a statement. MSCHF’s lawyer, David H. Bernstein, similarly said his clients were “pleased” with the agreement.

“With these Satan Shoes, MSCHF intended to comment on the absurdity of the collaboration culture practiced by some brands, and about the perniciousness of intolerance,” he said. “Having already achieved its artistic purpose, MSCHF recognized that settlement was the best way to allow it to put this lawsuit behind it so that it could dedicate its time to new artistic and expressive projects.”

Calling the shoes “works of art that [that] represent the ideals of equality and inclusion,” Bernstein added that the lawsuit “brought extraordinary publicity” to MSCHF and its artistic message.

Bernstein’s firm similarly declined to share any further details about the settlement.

MSCHF’s Satan Shoes were released on Friday, March 26—the eve of Holy Week—and coincided with the release of Nas X’s music video for his song “Montero (Call Me By Your Name),” in which the rapper reimagines biblical scenes through a queer lens.

In one scene, he descends into hell on a stripper pole before giving the devil a lewd lap dance. The video has since been viewed over 100 million times on Youtube, while the song has posted similar numbers on Spotify. 

On MSCHF’s website, a link to the Satan Shoes project now leads to the collective’s statement on the dispute with Nike.

“Satan Shoes started a conversation, while also living natively in its space,” the statement says. “It is art created for people to observe, speculate on, purchase, and own. Heresy only exists in relation to doctrine: who is Nike to censor one but not the other?”

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Know Your Rights: Can I Make an NFT of Someone Else’s Artwork? + More Artists-Rights’ Questions, Answered


Have you ever wondered what your rights are as an artist? There’s no clear-cut textbook to consult—but we’re here to help. Katarina Feder, a vice president at Artists Rights Society, is answering questions of all sorts about what kind of control artists have—and don’t have—over their work. 

Do you have a query of your own? Email [email protected] and it may get answered in an upcoming article. 

 

I’m an artist and I’m thinking of making an NFT. Are NFTs governed by copyright? Also, what’s an NFT?

Reader, you were the 17th email about NFTs in my inbox on the day you sent this, so you know what that means: You win two tickets to a Rihanna concert at the Barclays Center! And, of course, an answer in this month’s column.

To my astonishment, NFTs (also known as non-fungible tokens) have captured the imagination of people around the world. NFTs can be made from practically anything digital—songs, Tweets, whatever. Using blockchain technology, NFTs render these infinitely reproducible items—like the song you listen to on Spotify ad infinitum—unique. 

In other words, while anyone can see and easily download the video clips that constitute Grimes’ digital artwork (of which she sold a casual $5.8 million worth through Maccarone), they would have to purchase the individual, impossible-to-pirate, limited-edition NFT version if they wanted the distinction of owning the original, collectable version. 

James Tarmy at Bloomberg wisely pointed out that this is essentially the same way the market for photography already functions, with an artist-made print fetching a price that is exponentially higher than a poster of the same image would. By way of comparison, I’ll remind you that a frenzy for tulips in the Dutch Republic in the 17th century at one point made the flowers more valuable than gold. The old adage is true: Scarcity really does create value.  

I’ve been approached by many people interested in collaborating on NFTs because my firm, Artist Rights Society, is a clearinghouse for artist copyrights. We represent over 122,000 artists and estates worldwide, so if you want to reproduce an artwork for a catalogue or make a t-shirt for your museum gift shop, the request often flows through us. And the dynamic is the same for an NFT as it is for a t-shirt: the copyright for an artwork rests with its creator (unless the creator has been dead for 70 years). 

If you’re an artist, that means you can make an NFT of your own work free and clear. If you want to make an NFT of an artwork that’s not your own, you need to go to the source for permission. 

Dollhouse at Musée Grobet-Labadié Virtual Tour © Courtesy of Manifesta 13

Dollhouse at Musée Grobet-Labadié Virtual Tour © Courtesy of Manifesta 13

Our museum is still closed and as we consider the long-term effects the pandemic will have on museum visitation, we would like to add more virtual components to our exhibitions, including 3D walkthroughs and extended online tours. How should we approach licensing in this situation? Should we seek permissions for reproductions in the same way we would for a print pamphlet?  

First, let me thank you for your caution. We’re keenly aware that our partners in the museum world are in need of admission funds, and it’s great that you’re encouraging visitors to return at the pace that’s right for them, and for everyone else.

Museums have gotten increasingly creative in recreating their shows for viewers at home—but you’re correct to wonder about the right to reproduce content because, as readers of this column know well, ownership of an artwork rests with its creator rather than its owner. Anything you’re planning needs to be approved by the artist, their estate, or a collective rights organization like ARS. 

I recommend thinking about virtual exhibitions in the same way you would think about reproducing works for print: you need to go to the same people for authorization. 

The big caveat here is that copyright endures the life of the artist, plus 70 years post mortem. So if you’re a museum with many older works like the Metropolitan Museum of Art, you would already be in the clear. Best of luck with this and with your reopening. 

Photo Illustration by Omar Marques/SOPA Images/LightRocket via Getty Images.

Instagram photo Illustration by Omar Marques/SOPA Images/LightRocket via Getty Images.

How should you deal with people who share your work on Instagram but don’t tag or hashtag you (specifically, influencers who make money from the site)?

I’m sorry to hear you are having this problem. Instagram has opened many doors for many artists—but of course, nothing comes without a price. We get this query from artists time and time again. 

Let’s start off by discussing your rights. Six photographers are currently suing Buzzfeed over its use of their images of this summer’s Black Lives Matter protests. But Buzzfeed’s actions may, unfortunately, be acceptable thanks to what one judge called “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license” that is implicitly granted by posting to Instagram. 

That situation sounds a bit different from your problem, however. It seems that higher-profile users are either passing off your own Instagram photos as their own or photographing your work without giving you credit. 

The latter concerns your “display rights” as a copyright holder. It’s a surprisingly tricky issue because there isn’t a ton of case law established here. There are a number of questions to consider: For starters, has the person photographed your work in a way that might be considered transformative due to their own creative input? To what extent is the photograph about your work, and to what extent is it about the influencer? (If the influencer is taking up more than 50 percent of the image by, say, posing in front of your painting, the photograph may be considered more about them than about your work.) Is the image likely to hurt your market? (An argument could be made that by even unwittingly sharing your work, the influencer is boosting your profile.) 

You can see how complicated this gets. For more, allow me to direct you to this lengthy article by Herrick, a law firm that often works with the art world, about photographing works for catalogues. It’s a good, if flawed, analogy.

Now for the former scenario: If the person in question is taking your Instagram posts and claiming them as their own, we’re in more of a FuckJerry situation. Even there, however, the law is unclear because it’s hard to prove the extent to which the thief benefitted from your specific piece of content. A plaintiff who tried to prove Jerry had stolen the image for a particular sponsored post dropped his case in 2019 because he was, it turned out, “almost certainly not the original creator” himself.

Regardless of the specifics, I would try reaching out to the user in question. More often than not, this is a simple misunderstanding. And in my experience, Instagram is rarely worth a lawsuit, even if you’re Kanye West. 

Jeff Koons’s sculpture Fait D’Hiver (1988). Photo by Ralph Orlowski/Getty Images.

Explain Jeff Koons to me. Sometimes he wins lawsuits, sometimes he doesn’t. He just lost one in France but that hardly helps to explain things. Explain Jeff Koons to me, please, somebody. 

First, I’d like to put forth a personal theory that, from a creative standpoint, Jeff Koons welcomes being sued. Don’t buy it? Koons once “created” framed posters that have been made by Nike, a company well known for its rigorous lawsuits against infringements. Koons went so far as to call the works “originals,” even though they were unmodified. The guy clearly gets off on being a copyright provocateur. 

So what makes a successful Koons lawsuit? Your guess is as good as mine. The French lawsuit you cite in your question centers on Koons’s Fait d’hiver. The image is copied from a magazine advertisement, albeit a very French one, in which a pig sniffs a gorgeous woman in the snow. Sounds familiar? Consider Blanch v. Koons, which we discussed last year. In that case, Koons took a copyrighted image of a woman’s leg and feet that he found in an American issue of Allure. 

Elisabeth Bonamy, Franck Davidovici, and William Klein’s “Fait d’Hiver” ad campaign for Naf Naf (1985).

The Blanch case found Koons guilt-free of copyright infringement, with the American court arguing that the original image was, curiously, too “banal” for protection. This latest suit, which occurred in France, didn’t work out for him because the laws in France tend to favor creators more than those in the States. It also couldn’t have helped that everyone’s a bit down on him over there at the moment. Mon dieu, indeed. 

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Magnum Photos Is Threatening Legal Action Against a Streetwear Company That Used Its Images for a New Clothing Line


Magnum Photos is threatening legal action against a streetwear company that released—and quickly withdrew—a new clothing line featuring documentary images from the photography cooperative’s archives, along with its logo.

The clothing company Richardson briefly marketed t-shirts, hoodies, and jacket with images by photographers Danny Lyon, Gilles Peress, Antoine D’Agata, and Hiroji Kubota. Among the pictures used was one of a Irish Republican Army (IRA) soldier after Bloody Sunday, as well as other charged documentary images of other historical conflicts.

Other items of clothing feature a Lyon photograph of prisoners in a Texas penitentiary, and a Kubota shot of three members of the Black Panther party standing in a snowy Chicago rail yard.

“Our representatives have initiated legal action regarding this matter to protect the intellectual property rights of Magnum and its photographers, so we cannot comment further at this time,” a Magnum spokesperson told Midnight Publishing Group News.

Andrew Richardson, the designer behind the label, says the collection was conceived as a companion to his art and erotica magazine, which was founded in the late 1990s. The Peress photograph was published in the third issue, while other pictures by Danny Lyon and D’Agata have also appeared in the magazine. 

Kubota, the only artist not to have been featured in the magazine, signed off on the capsule collection and “contacted Magnum with praise and excitement about the finished products,” according to the publisher. 

“As a brand that started as a magazine, the relationship between the images we feature in our clothes and the texts we have published is perhaps more complex than other streetwear brand,” Richardson added. “But we feel it is these interdiscursive conversations that weave our brand together as a whole.”

Richardson previously worked with Magnum on a clothing capsule pegged to the agency’s anniversary in 2017. Magnum’s logo was included on that line, which is why he says the current legal dispute came as a surprise.

For Richardson, the inclusion of Magnum’s images was meant to be generative, not exploitative.

“Once we have paid the cost of licensing the images and the cost of manufacture these, kinds of capsules are not really serving ‘commercial purposes,’” he says. “This project is not meant to capitalize on photo documentarians. To the contrary, we feel that we offer a unique venue for these wonderful images and artists to be rediscovered, and to circulate as part of a contemporary conversation that they are certainly relevant to, but often excluded from.”

The dispute comes amid a thorny, months-long controversy over Magnum’s archive and the way the cooperative chooses to license its images.

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A Netflix True Crime Series Will Investigate the Brazen Robbery of $500 Million in Artworks From the Isabella Stewart Gardner Museum


Netflix’s latest true crime documentary will revisit the infamous heist at Boston’s Isabella Stewert Gardner Museum, an unsolved robbery in which a pair of thieves posing as policemen tied up a night watchmen and made off with 13 masterpieces by the likes of Rembrandt, Johannes Vermeer, Edgar Degas, and Édouard Manet, collectively worth an estimated $500 million.

Next week marks the 31st anniversary of the break-in, carried out in the wee hours of the morning amid St. Patrick’s Day celebrations. There is still a $10 million reward for information leading to the paintings’ return, and it remains the most expensive art theft in US history.

Over the decades, the daring robbery has inspired a PBS documentary and numerous books, podcasts, and even works of art.

The new show, titled This Is a Robbery: The World’s Biggest Art Heist, is a four-part series by brothers Nick and Colin Barnicle, Boston natives who shared a boyhood fascination with the crime. It comes out on April 7.

This is how police found Isabella Stewart Gardner Museum night watchman Rick Abath after the theft. Two thieves posing as policemen tied him in up in the museum basement. Photo courtesy of the Isabella Stewart Gardner Museum, Boston.

This is how police found Isabella Stewart Gardner Museum night watchman Rick Abath after the theft. Two thieves posing as policemen tied him in up in the museum basement. Photo courtesy of the Isabella Stewart Gardner Museum, Boston.

No one has ever been arrested or tried in connection with the case, leading to any number of theories about what really happened and where the paintings are. Both the Italian mafia and the Irish mob are suspected of being involved, and efforts to recover the works have spanned continents.

The FBI announced in 2013 that it had identified the two thieves who carried out the break-in, but never released their names. Some law enforcement sources have reportedly identified them as George Reissfelder and Lenny DiMuzio, both of whom died shortly after the robbery.

This Is a Robbery promises a tale of “equal parts drama, explosive true crime story, and a madcap comedy of errors,” producer Jane Rosenthal told Deadline.

A list of motion detector alarms triggered by thieves during the 1990 Isabella Stewart Gardner Museum heist. Photo courtesy of the Isabella Stewart Gardner Museum, Boston.

A list of motion detector alarms triggered by thieves during the 1990 Isabella Stewart Gardner Museum heist. Photo courtesy of the Isabella Stewart Gardner Museum, Boston.

The only living suspect linked to the crime, reputed New England mobster Robert Gentile, broke his silence last month, but insisted that allegations about his involvement were an “out and out lie.”

“Even if you’ve read all the books, if you’ve listened to anything on it, there’s going to be new things in there,” Colin Barnicle told the Boston Globe. “And we reach a conclusion.”

See the trailer for the docuseries below.

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A Battle in the Legal War Over Robert Indiana’s Legacy Ends as His Estate Settles With the Artist’s Longtime Representative


One chapter in the protracted legal battle over the legacy of the late Pop artist Robert Indiana has come to a close.

Last week, Indiana’s estate reached a out-of-court settlement with the artist’s longtime representative and holder of his copyrights, the Morgan Art Foundation, and the organization that oversees his former home, the Star of Hope Foundation.

According to a notice filed in a New York district court, the agreement “should fully resolve all claims” in the knotty case, which included allegations of defamation, breach of contract, copyright infringement, and violation of the Visual Artists Rights Act.

Details of the deal, however, were not revealed. The Morgan Art Foundation’s lawyers declined to comment when reached by Midnight Publishing Group News, and the Star of Hope Foundation did not immediately respond to email.

“The parties are conferring about a joint submission to the court to set forth their positions regarding next steps in the case,” the filing read.

On May 18, 2018, just one day before Indiana’s death at age 89, the Morgan Art Foundation filed a federal lawsuit against New York-based publisher Michael McKenzie and the artist’s caretaker, Jamie Thomas, alleging that they conspired to isolate the artist from his family and friends and make illegal artworks in Indiana’s name.

Robert Indiana's Vinalhaven home, Star of Hope. May, 2018. Staff photo by Shawn Patrick Ouellette, Portland Press Herald via Getty Images.

Robert Indiana’s Vinalhaven home, Star of Hope. May, 2018. Staff photo by Shawn Patrick Ouellette, Portland Press Herald via Getty Images.

McKenzie’s name was noticeably absent from the document submitted to court this month. According to the Portland Press Herald, he remains in a legal battle with both the estate and the Morgan Art Foundation. 

An arbitration hearing between McKenzie and the Indiana estate is set for March 22 in New York, where a judge will weigh in on McKenzie’s right to continue to create and sell editions of Indiana’s works, including his iconic HOPE sculptures. McKenzie contends that the agreement he forged with Indiana continues past the artist’s death, but the estate has argued otherwise, saying the publisher violated the contract.

“If they do not make a settlement with us, we will assert our rights in arbitration with the estate to continue making HOPE sculptures, and we will continue the litigation with Morgan in federal court,” McKenzie’s lawyer told the Herald. 

“What is mind-boggling about it is that everybody should know the fact that Michael McKenzie made $10 million for Robert Indiana on the HOPE sculptures and is willing to continue doing so and in fact claims he has a right to do so,” the lawyer went on. “Why they wouldn’t want that income stream to continue is something we can’t understand. It makes no sense to us.”

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