Monday, June 16, 2014

US sculptor wins $450,000 copyright damages against billionaire property developer

Russian billionaire property developer Igor Olenicoff:
guilty of copyright infringement
Back in August 2011, I revealed how Igor Olenicoff, 71, a Russian billionaire property developer (left), had commissioned unauthorised copies of original sculptures by the California-based artist Don Wakefield and had displayed them in the grounds of his corporate buildings in Newport Beach and elsewhere. 

Olenicoff, a convicted tax felon said to be worth around $2.4 billion (Forbes), was later discovered to have commissioned the copies from a Chinese stone-carver in Beijing. 

Wakefield’s approaches to Olenicoff for an explanation as to why his work had been copied without his permission were snubbed.

My subsequent report of the case for The Art Newspaper was spotted by US lawyer Gene J. Brockland of St. Louis, Missouri law firm Herzog Crebs, who offered, pro bono, to represent Wakefield in a copyright suit against Olenicoff and his company Olen Properties Corp. (see my Artknows report here).

Last week, Wakefield (right) won his copyright suit against Olenicoff on all counts, the court awarding him $450,000 in damages.

Percent for Art
One aspect of the case that has not yet been fully explored is whether Olenicoff was in some way in breach of his obligations under the Percent for Art Scheme, which requires developers of new buildings to devote 1 percent of the overall construction budget towards public art to be displayed in the grounds. 

As part of my original investigation into the Olenicoff case I discovered a number of Bejing stone-carving companies who were prepared to copy sculptures based on images provided to them without asking whether I had good title to the original works in question. Nor did they inquire as to who created the works. Moreover, where a unique, original work by Wakefield would have cost around $35,000 to make at that time (or closer to $100,000 today) and retailed at $150,000, the Chinese stone-carvers were willing to produce them for between $900-$1,500 apiece. Whether this enabled Olenicoff to save on his Percent for Art obligations has never been fully clarified. 

However, as The Art Newspaper has just reported, the Percent for Art scheme has been subject to widespread neglect in many US cities, which has sometimes allowed property developers to ignore the scheme altogether. “Cities including Los Angeles, Buffalo and Pittsburgh have either failed to set aside money for the initiative or have tied up the proceeds in red tape,” according to The Art Newspaper.

When I approached the relevant Percent for Art authority in the City of Brea, California over the Olenicoff case, it appeared that the full information necessary to satisfy the ordinance had never been forthcoming. 

One of the unauthorised copies
of Wakefield's works 
One of the Percent for Art requirements states: “The Artist represents and warrants that … the Sculpture is unique and original … and does not infringe upon any copyright or other intellectual property right.” (City of Brea, Art in Public Places Policy Manual, 2012). (For a full account of this case, see my chapter - ‘Negotiating authenticity: contrasting value systems and associated risk in the global art market’ in Dempster, A. (Ed.) Risk and Uncertainty in the Art World (Bloomsbury, 2014, pp109-124.) 

As I also reported in The Art Newspaper, Wakefield was not the only artist whose moral rights were abused by Olenicoff. Another American sculptor, John Raimondi, also fell victim to Olenicoff’s scheme. His case will be heard from June 24.

If anything, Raimondi's complaint is even more compelling than Wakefield’s. Some years before we revealed the Olenicoff/Beijing scam, Raimondi had approached Olen Properties Corp. to discuss making work for them, but at some point Olenicoff fell silent on it. 

According to court documents outlining Raimondi’s complaint: 
“The sculptures were to be custom-made for the defendants, as they were not in Raimondi's inventory. The defendants represented to Raimondi that they were interested in purchasing his art in order to comply with city ordinance(s) requiring developers to spend a certain percentage of money on public art; in this instance between $100,000 and $250,000.”
Olenicoff had apparently "requested photographs showing multiple views of the sculptures.”  However, 
“…approximately ten days after the second meeting, Olenicoff refused to speak with Raimondi. Defendants instead had an assistant relay to Raimondi that Olenicoff had a change of heart about the sculptures. Instead of purchasing the sculptures from Raimondi, defendants, at their direction, had multiple unauthorized and infringing copies of the sculptures manufactured in China.”

As has been widely reported, Olenicoff is also a convicted tax felon. In 2007 he pleaded guilty to syphoning more than $350 million into European bank accounts before a UBS employee, Bradley Birkenfeld, blew the whistle. Olenicoff was ordered to pay $52 million in back taxes and was sentenced to two years probation and 120 hours of community service. 

As my chapter in the Risk and Uncertainty book (right) points out, the still rapidly globalising art world continues to throw down fresh challenges to market participants. Risk is not merely something to be assessed and quantified by wealth managers and investment advisers. Artists too must remain vigilant, particularly since our concepts of originality and authenticity are not shared across cultures. 

Thankfully there are still a few lawyers willing to fight the oligarchs and the billionaires who would otherwise ride roughshod over artists' moral rights.  

1 comment:

Douglas said...

What makes Igor Olenicoff's behavior particularly egregious is that he has more than enough money to deal with the artist fairly and lawfully but, instead, he went out of his way to screw the artist and flout city ordinances. Municipal lawyers are too outgunned and/or timid to deal with Olenicoff the way he needs to be dealt with. Good thing that Mr. Wakefield had the courage and conviction to stand up to this Russian thug.