The Art Law Blog

"The idea has never gotten very far, in part due to strong opposition from charities."

2012-02-13T20:55:00.000-05:00

The Chronicle of Philanthropy: "President Obama on Monday proposed to limit the percentage of income that wealthy donors can write off for gifts to charity."

Twombly Tax Trouble

2012-02-10T17:10:00.002-05:00

In Italy. Story here.

"Exit the Deciders"

2012-02-09T15:59:00.002-05:00

Barbara Guggenheim on what happens in a post-authentication committee world.

"Mr. Lugo’s lawyer ... has called him 'more like someone who was in the midst of a psychiatric episode' than a calculating art thief."

2012-02-09T15:54:00.000-05:00

Wine steward/art thief Mark Lugo plead guilty to a grand larceny charge in New York this week and faces one to three years in prison when he is sentenced later this month. His lawyer says he could be released in less than a year. Turbo Paul calls it a slap on the wrist.

"What Reinharz does not regret is the principle that guided [the] decision."

2012-02-07T22:18:00.000-05:00

Former Brandeis President Judah Reinharz is still repulsively defending his (failed) plan to sell some of the school's artwork:

"Reinharz was thinking about the economic security of the university’s staff ... [T]he school was facing the decision to lay off workers, ... employees who make less than $50,000 a year. Imagine arriving home at the end of the day and saying to your spouse, Reinharz explained, 'I was fired today but it was a good day for Brandeis. Not a single painting was sold.'"

Can you believe that? The repulsive unethicalness of it all. What are people's livelihoods compared to the "ethical" guidelines of a voluntary organization of museum directors, Mr. Reinharz? Don't you know there is no higher moral authority? If they say it's wrong, it's wrong. Who are you to question them? I expect he will be duly sanctioned at the next AAMD meeting.

"My client just decided to settle after doing the math and deciding it was simpler to pay."

2012-02-07T21:28:00.000-05:00

Artinfo reports on a settlement in a private California resale royalty suit brought by artist Mark Grotjahn against collector Dean Valentine. Under the settlement, Valentine agrees "to pay Grotjahn the five percent he owed on the three works he resold, as well as some of the artist’s legal fees." Artinfo notes that "the outcome of the case could affect the current class-action lawsuit that artists have filed against major auction houses Sotheby's [and] Christie's," but it's not clear from the article to what extent the Commerce Clause issue was implicated in the Grotjahn case.

Latest on the California Resale Royalty Class Action

2012-02-07T14:43:00.000-05:00

The plaintiffs have filed their response to the auction houses' motion to dismiss. No online link yet; background about the case here.

The main question in the case, I've been saying, is whether, as applied outside California, the statute violates the Commerce Clause. In their motion to dismiss, the auction houses argued that "where State A purports to regulate the sale of goods occurring in State B simply because that sale involves a resident of State A, the regulation is invalid." In attempting to distinguish some authority cited by the auction houses, the plaintiffs here argue that, in those cases, "the only nexus with the state was that the consumer was from the state." In this case, by contrast, the ("undeniable") nexus is that the sellers "reside in the state" (p. 11). "[W]hile part of the transaction may occur outside of California, it cannot be said that the transaction occurs wholly outside of California because the seller is necessarily a state resident" (p. 12). I'm not a constitutional lawyer, but that doesn't sound especially convincing to me.

"Goldsmith says in the court papers that the dealers assured him of the works’ authenticity and told him they had relationships with the sellers and 'personal connections' with the artists."

2012-02-07T10:47:00.000-05:00

"But when he had some of the works evaluated by Basquiat’s and Haring’s estates in 2010, he was told that they were forgeries."

Arnet reports that a New York collector is suing a pair of secondary market dealers over the sale of $950,000 worth of work purportedly by Basquiat, Haring and Warhol.

"The court 'exhibited a lack of intrinsic comprehension of art,' she wrote."

2012-02-06T16:11:00.000-05:00

Artnet's Rachel Corbett has a report on Janine Gordon's appellate brief.

"It was undisputed at trial that the subject of the condition precedent, i.e., that funds be received from Galerie G, never occurred."

2012-02-06T10:16:00.000-05:00

An interesting decision in the Southern District last week in a breach of contract case involving a "back-to-back transaction" for the sale of a Mondrian. Edelman Arts sued Anne Faggionato's Art International, but the court ruled that a statement in a fax cover sheet enclosing a signed bill of sale that it was "to be held in escrow until the monies from the buyer have been received" created a condition precedent that was never fulfilled. (Edelman's position was that that was "only a timing provision.") Courthouse News story here. Opinion here.

Lawsuit Filed to Block Christo's Latest Project

2012-02-03T07:59:00.000-05:00

In Colorado. "The lawsuit, filed ... by a group of students at the University of Denver’s Sturm College of Law, argues that land managers did not adequately address the long-term effects of the project on wildlife, especially the bighorn sheep that clamber about on the canyon’s cliffs." They say that, in approving the project, "federal analysts framed their assessment in ways that excused the impact of the thousands of bore-holes, rock-bolts and anchors that will have a cumulative effect, ... not unlike industrial mining." Ann Althouse says that's "a new twist on the old 'what is art?' question. These law students are arguing about the art/mining distinction."

Mo(o)re on Sports Artists and Trademark

2012-02-03T07:41:00.000-05:00

As a follow-up to his New York Times piece earlier this week on the Daniel Moore case, Daniel Grant has a post at the Huffington Post on another sports artist, Rick Rush, "who successfully fought a trademark infringement lawsuit [brought by Tiger Woods] over a period of five-and-a-half years."

I linked to the Rush decision in my very first post about the Moore case, now more than five years ago.

Barnes Sanctions Hearing

2012-02-02T13:10:00.000-05:00

Cheryl Alllison of the Main Line Times has a report on this morning's sanctions hearing in the Barnes case. Judge Ott "closed the hearing after about 45 minutes and said he would take the matter under advisement."

Six days a week, 9:30-to-6:00 ...

2012-02-01T15:52:00.000-05:00

... of adversely affected experience in an impossible to predict way. The Barnes sets its opening hours.

As near as possible

2012-02-01T11:52:00.001-05:00

The Tennesse Attorney General has gone ahead and filed for permission to appeal the most recent ruling in the Fisk case. Here's a brief AP story. Here's the brief. And here is donor-intent protector Lee Rosenbaum, coming out of retirement to cheer on Super Cooper's forfeiting of his neutrality.

A few comments on the brief:

1. It contains as clear a statement of Donor Intent Absolutism as you will ever see: "[T]he fact that the donee may cease to exist if it is not permitted to change the conditions of a gift ... does not authorize a deviation from the conditions of the gift." Wow, that's cold. O'Keeffe said no sales and that means no sales. If that results in Fisk having to shut its doors, so be it. But wasn't it also part of her intent that Fisk own the works? After all, she could have given them to anyone, but she chose Fisk. Why do we assume the no sale part of her intent is more important than the Fisk part of her intent? It's not as if she said "here is a bunch of artwork, I don't really care who owns them or what happens to them just as long as, please God, they never ever be sold!" In other words, do we really think that, given the choice, O'Keeffe would prefer to see Fisk close down and the works sent somewhere else than the collection sharing arrangement on the table now, in which Fisk survives and retains a 50% interest in the works?

2. Speaking of that retained 50% interest (and the related right to exhibit the works for two out of every four years): the brief bizarrely reads as if the whole collection is being shipped off to Russia or something, never to be seen again. It claims the deal that's been approved converts the collection "into nothing more than a source of revenue for Fisk." It argues that, under the cy pres doctrine, any deviation "must be as close as possible to what the donor intended" and this deal "is far removed from Ms. O'Keeffe's intent and purpose." What was that intent and purpose that we are far removed from? According to the AG, it's that the work "be used for art education in Nashville and the South." O'Keeffe's "primary charitable purpose was to enable the public -- in Nashville and the South -- to have the opportunity to study the Collection in order to promote the general study of art." Seriously? That's their argument? That a collection-sharing arrangement that has the work in Nashville at Fisk half the time and at a brand new museum of American art in Arkansas (which may well "become a place of pilgrimage for art lovers from around the world") half the time is far removed from an intent to enable the public -- in Nashville and the South -- to have the access to the collection? Really?

3. Finally, a word about this silly notion that allowing this collection-sharing arrangement to go forward will "chill" future charitable donations. Look, this case isn't inventing a new way to subvert donor intent; it's applying long-standing doctrine (one that existed at the time O'Keeffe made her gift). As the AG's brief itself notes, the cy pres doctrine was "first codified in New York in 1893." Every single charitable gift comes with an implicit asterisk to the effect that, when changed circumstances make compliance with the terms of the gift impracticable, a court may modify those terms. That was true before the Fisk decision, and remains true after. Reversing the decision in this case would not make that asterisk go away. No donor can ever be "certain" that the conditions of her gift will be honored for all eternity. Fisk happens.

"All this raises the prospect that a decision by the Second Circuit could affirm the lower court judgment without shifting the copyright landscape dramatically."

2012-02-01T09:33:00.000-05:00

"That is to say, the appeals court could leave for another day how transformative a work needs to be and say simply that these works fail the test because of what Prince said."

Nicholas O'Donnell reads Cariou's appeal brief.

Related post here.

"Is Prince v. Cariou Already Having a Chilling Effect?"

2012-02-01T09:27:00.000-05:00

Julia Halperin at ARTINFO.

Barnes Update

2012-02-01T08:54:00.000-05:00

The Main Line Times: "A court hearing is scheduled for Thursday, Feb. 2, at 9:30 a.m.... at which the Friends of the Barnes Foundation and other petitioners will present their objections to sanctions imposed by Montgomery County Orphans’ Court Judge Stanley R. Ott."

More More Moore

2012-01-31T22:55:00.001-05:00

Daniel Grant had an update in the New York Times today on the University of Alabama-Daniel Moore lawsuit. There's an appellate court hearing on Thursday. This is what the parties are appealing:

"The District Court Judge Robert Propst wrote in his 2009 ruling that there was no reason for buyers of Moore’s prints to assume that the products were licensed and endorsed by the university. Rather, he wrote, 'it is likely that people who buy the Moore paintings do so, at least partially, because of their loyalty to the University of Alabama and its football team.' The judge, however, did prohibit Moore from selling his images on products of a more commercial nature, like coffee mugs and calendars, without obtaining a license from the university, and his ruling was vague on the number of prints in an edition that the artist could create."

Oh Sister

2012-01-29T23:34:00.000-05:00

I don't remember seeing this in the earlier reports on this story, but, according to this article in the Albany Times-Union, not only did that upstate order of nuns lose their fraud claim against the two dealers, there was also a defamation award in the dealers' favor, to the tune of $250,000.

More on Appropriation and Fair Use

2012-01-29T11:57:00.000-05:00

Had a chance to read the Cariou appellate brief. They smartly keep the argument as narrow as possible: they don't say all appropriation is infringement, just that this particular example -- where "a transformative purpose is negated by the sworn testimony" of the artist (p. 5) -- is. They say Prince "admi[tted] that he had no message he wanted to convey about Cariou's photographs and only appropriated them because he liked them" (pp. 1-2).

Relatedly, Cat Weaver says "the dueling Cariou v Prince briefs have added new certainty to my theory that transformative use is a singularly unhelpful notion."

And Joy Garnett has organized a panel, "The Case For Appropriation," Feb. 16 at SVA.

Art Dealer Faces Fraud Charges

2012-01-28T00:09:00.002-05:00

The NYT's Patricia Cohen has the details.

Overtime

2012-01-26T23:28:00.000-05:00

The University of Alabama's lawsuit against artist Daniel Moore is still going! Oral argument on the appeal scheduled for Feb. 2. Jon Solomon of The Birmingham News says it's "embarrassing" and a "PR nightmare" for the university.

Prince-Cariou News

2012-01-26T22:56:00.000-05:00

Patrick Cariou's lawyers filed their appellate brief yesterday. Haven't had a chance to read it myself, but in the meantime, here are reports from ARTINFO's Julia Halperin and Artnet's Rachel Corbett and commentary from Peter Friedman.

"The new lawsuit seeks some $14 million from Mr. Gagosian for various alleged misdeeds in the sale of Roy Lichtenstein’s Girl in Mirror."

2012-01-26T22:28:00.000-05:00

Dan Duray has the details on a new lawsuit involving Gagosian Gallery and the Cowles family. He points out that, were it not for this suit, "news might not have broken last week that the lawsuit between [Gagosian] and collector Robert Wylde had been settled for $4.4 million." For background on that earlier suit, see here.

"While it may sound like a good idea in principle, the law is misguided for several reasons."

2012-01-24T12:25:00.000-05:00

In the NYLJ, Judith Prowda, the Chair of the NYSBA Entertainment, Arts and Sports Law Section, argues against the proposed resale royalty bill. She says "empirical studies have shown that the resale royalty right is ineffective and the benefits highly skewed" and that "artists may in fact be worse off in the long term with the resale royalty, as dealers may have less money to promote their careers in the primary (first sale) market and instead shift their business away from royalty liable art in the secondary (resale) market." She concludes: "While it is hard to argue with the concept of fairness for artists, in reality, the law does more harm than good to the majority of artists."

"Experts have been persuaded to opine that the affair is 'Australia's largest-ever art scandal' and 'threatens to destroy trust in the local industry for years.'"

2012-01-24T11:40:00.000-05:00

An Australian art dealer has been arrested and charged with "87 offences relating to his investment art fraud scheme."

"It's not as if we're selling our opinions in competition with a photographer."

2012-01-21T15:35:00.000-05:00

"Using the photo in a judicial opinion couldn't conceivably be hurting the copyright holder."

Judge Posner helps himself to some fair use.

"Word of the disbanding comes amid several major forgery scandals that have entangled a number of art authentication boards in messy litigation" (UPDATED)

2012-01-17T23:13:00.002-05:00

The Basquiat Authentication Committee is disbanding.

UPDATE: The Art Market Monitor: "The committee itself may turn out to be less important than Enrico Navarra’s catalogue raisonné."

Update on the California Resale Royalty Class Action

2012-01-17T22:34:00.000-05:00

The auction houses have filed a (joint) motion to dismiss. You can read the motion here; background about the case here.

The main argument is the Commerce Clause argument: as a "state law[] which seek[s] to regulate economic activity outside the State," the statute is "plainly unconstitutional." "[W]here State A purports to regulate the sale of goods occurring in State B simply because that sale involves a resident of State A, the regulation is invalid."

They also make the back-up arguments that the statute violates the Takings Clause -- "it confiscates the private property of select individuals and transfers that property to other private individuals" -- and is preempted by the Copyright Act (because it conflicts with its "first sale" provision, which "entitles a lawful owner of a copyrighted work to resell that work without restriction").

Along the way, they make the point that the statute is not a tax: "The resale royalty is neither exacted from the general public nor transferred to any government agency."

"Defying the economic gloom"

2012-01-12T22:36:00.000-05:00

The Mei Moses art index was up 11% in 2011, "beat[ing] the total return of the S&P 500 index of US equities by about 9 percentage points."

Bananas

2012-01-12T17:26:00.000-05:00

Courthouse News Service: Velvet Underground Wants to Free Warhol's Banana.

"A great art project indeed!"

2012-01-12T17:11:00.000-05:00

Sergio Muñoz Sarmiento: Is This Copyright Infringement of an Artist's Painting?

"Hopefully, this is one step towards the day when we can live out our faith without fear of persecution."

2012-01-12T16:53:00.000-05:00

"The Church of Kopimism, whose principal tenent is the right to file-share, has been formally recognized as a religious organization in Sweden."

"Knoedler forgery scandal grows"

2012-01-12T16:46:00.000-05:00

The Art Newspaper's Charlotte Burns reports.

Background here.

Affirmed

2012-01-12T16:37:00.000-05:00

The Ninth Circuit has upheld Halsey Minor's judgment against Christie's. The decision is here. Background here.

Nun Too Happy

2012-01-10T21:15:00.000-05:00

An upstate group of nuns have lost their fraud case against a dealer arising out of a Bouguereau they sold to him. Background here. He bought the painting from them for $450,000 and then resold it for $2.5 million. He "denied any conspiracy to defraud the nuns, countering that they are merely experiencing seller's remorse. 'Sometimes you just get lucky,' he said."

Jeopardy

2012-01-09T16:58:00.000-05:00

The Tennessean had a story over the weekend with the rather dramatic headline: "Fisk art deal in jeopardy." What that turns out to mean is just that the Tennessee Attorney General may decide to appeal the latest ruling approving the deal. It's not in any more jeopardy than it was the day that ruling came down or any day since. The deadline to appeal is Jan. 28.

We also hear from "the larger art museum community," represented in this instance by the director of the Georgia Museum of Art at the University of Georgia, who informs us that "the case could change the boundaries for selling off artworks." The AAMD and AAM say sales proceeds should be used "solely to acquire more art or maintain existing collections," but, if this decision is not put in jeopardy and the Fisk-Crystal Bridges collection-sharing arrangement is allowed to happen, those boundaries could change. But why would that be so? Isn't it more likely that the boundaries (i.e., the AAMD and AAM policies) will stay right where they are, but this deal will be an "exception" to (or, if you prefer, "violation" of) those boundaries?

Athens Art Theft

2012-01-09T16:24:00.000-05:00

Paintings by Picasso and Mondrian were stolen from the National Art Gallery in Athens today. Art Theft Central's Mark Durney says Greece's Culture and Tourism Ministry "has seen its budget cut by 35% since 2009" and wonders if "perhaps, the new austerity measures and workers’ reactions to the budget cuts contributed to the ineffectiveness of the museum’s security system and practices."

"Mr. Lucky is not, in fact, so lucky."

2012-01-09T16:18:00.000-05:00

The Gallerist's Michael H. Miller reports that a New Orleans man named Robert E. Lucky Jr. has been sentenced to two years in prison for selling fake Clementine Hunters.

"Virtually every traditional media company in the United States loudly and enthusiastically supports SOPA, but that doesn’t mean it’s good for the rest of us."

2012-01-06T12:34:00.000-05:00

I haven't been linking to all the discussion of the Stop Online Piracy Act (SOPA), but David Carr had a good overview in the Times last week, and Martha Lufkin has a piece on it in The Art Newspaper. From the latter, it seems that ARS supports the bill, while VAGA is more non-commital.

Win Win

2012-01-06T11:00:00.000-05:00

Carol Vogel reminds us today that "for more than a decade museums have been joining forces to buy" art. It’s "an arrangement that works to everyone’s advantage," a way "to defray costs while allowing a wider public to see significant work."

Exactly. That's why everyone's so excited about the Fisk-Crystal Bridges sharing arrangement. Right?

"I really don't want to see anyone get into trouble, but I'd like to get my painting back."

2012-01-05T23:20:00.000-05:00

NY1: LES Gallery Offers Reward For Return of Stolen Artwork.

"There is no road map for artists whose subject matter includes existing images."

2012-01-05T12:35:00.002-05:00

Daniel Grant: Will the Legal Status of Appropriation Art Be Decided This Year?

Test Pilot

2012-01-04T18:29:00.000-05:00

The new year begins with this back-and-forth between Judith Dobrzynski and Lee Rosenbaum over Boston's newly-revised "payment in lieu of taxes" (PILOT) program. For background about the program, start with New England School of Law Professor Eric Lustig, here and here. Inside Higher Ed has a good piece on it here, and sharp criticism from Tim Delaney, President of National Council of Nonprofits, here ("To enforce its legally unenforceable program, Boston has threatened to paint a Scarlet letter of shame on every nonprofit that does not comply with the city's demands for payments. Such coercion to obtain what the Commonwealth's law prohibits is outrageous and threatens everyone; who's next, when Boston -- or any government -- wants something the law prohibits?") and Taylor Armeding here ("These 'requests' are a bit like Don Corleone making someone an offer he can’t refuse. If a standard guilt trip doesn’t work, the university, the medical center, the museum, the charity are told in not-so-veiled terms that if they don’t pay up, good luck the next time they come before a city board seeking a permit. It is extortion, all prettied up as fairness and good citizenship.").

"If the case has had any effect so far, it has been to drag into the public arena a fundamental truth hovering somewhere just outside the legal debate."

2011-12-28T20:18:00.000-05:00

"That today’s flow of creative expression, riding a tide of billions of instantly accessible digital images and clips, is rapidly becoming so free and recycling so reflexive that it is hard to imagine it being slowed, much less stanched, whatever happens in court."

The NYT's Randy Kennedy on Prince-Cariou, fair use, and appropriation.

"So it has come to this, eh?"

2011-12-27T11:22:00.000-05:00

The Art Market Monitor: Dealer Attacks Giacometti Foundation Director Over Fakes.

"What else, in times like these, might that kind of money be used for?"

2011-12-26T18:15:00.000-05:00

Sebastian Smee feels a little queasy about the Peabody Essex Museum's recent announcement that it raised $550 million to "fund a massive expansion ...and to build up its endowment."

"Crystal Bridges is poised to make a genuine cultural contribution, and possibly to become a place of pilgrimage for art lovers from around the world"

2011-12-26T14:03:00.002-05:00

Roberta Smith weighs in.

"A moral tragedy? Good lord."

2011-12-24T21:31:00.000-05:00

More responses to Jeffrey Goldberg's broadside against Crystal Bridges. Clive Crook says the two columns are "terrible," "among the angriest attacks on [Wal-Mart] I can recall reading, which is saying something. Coming from a writer I think of as a fount of common sense they shocked me." And Michael Kinsley concludes: "Walton could have put her museum in New York, where this sort of thing belongs. Most of us don’t get to Bentonville as often as we’d like. Or she could have decided not to build it at all, for fear that journalists would start comparing her to Marie Antoinette. Would that have been better?"

On Empty Spaces

2011-12-23T13:06:00.000-05:00

Watkins College of Art professor Tom Williams is worried that "if people don’t step forward to defend [the Stieglitz] collection (and the university that houses it), and this deal goes ahead, it will disappear from this city for years at a time. These remarkable works will not be here for local schoolchildren and college students, and they will not be available to the larger Nashville community. Their habitual absence will leave an empty space in the culture of this city that may never again be filled."

"This deal," however, provides, that the collection will be there for local schoolchildren and college students for at least two out of every four years. The rest of the time it will be available to the larger Bentonville community and its local schoolchildren and college students, filling an otherwise empty space in the culture of that city.

"The 2d Circuit's forthcoming decision in Cariou likely will be a significant landmark in the debate over appropriation art."

2011-12-22T15:19:00.000-05:00

Says Paul Weiss's Lew Clayton.

"Artist Resale Royalties: Do They Help or Hurt?"

2011-12-22T14:10:00.000-05:00

Kal Raustiala and Chris Sprigman at the Freakonomics blog. Related post here.

"If the scheme is approved ..., an estimated 300,000 artists are due to receive funding."

2011-12-22T11:09:00.000-05:00

EU proposes the world's largest ever cultural funding program.

"Goldberg is really attacking the foundation on which almost all American art museums are built" (UPDATED)

2011-12-21T22:54:00.001-05:00

Bloomberg's Jeffrey Goldberg takes another whack at Alice Walton's Crystal Bridges Museum (previous whack discussed here). Judith Dobrzynski is not amused.

UPDATE: Lee Rosenbaum says "Goldberg has gone off the deep end."

"Is droit de suite really in the artists’ favor?"

2011-12-21T22:47:00.000-05:00

Abigail Esman of Forbes has her doubts.

"Four Things to Know About the Nutty New Droit de Suite Bill Introduced in Congress Last Week"

2011-12-21T10:57:00.000-05:00

From Artinfo's Shane Ferro. Related thoughts from Lee Rosenbaum here.

"The theft of public sculpture has got to stop." (UPDATED)

2011-12-21T07:50:00.003-05:00

Tom Flynn has had quite enough.

UPDATE: Art Theft Central's Mark Durney weighs in.

"It's not a good plan to redress one perceived inequity by creating another."

2011-12-20T23:06:00.000-05:00

Lee Rosenbaum, who says she has been espousing the cause of artists' resale royalties "since the '70s," is nevertheless not a fan of the recently introduced bill.

"The museum has hired a .. consultant ... to sell its permanent art collection. Some items have sold, and the proceeds were used to pay remaining creditors."

2011-12-20T22:59:00.000-05:00

A reminder of what happens when we let them fail.

The end of the line for the Fayetteville Museum of Art. [via]

More on Artists' Copyright Claims

2011-12-20T22:50:00.002-05:00

From Walter Robinson.

"Allowing museums to share in art royalties serves a double purpose, proponents of the federal bill said."

2011-12-16T16:32:00.000-05:00

"As a matter of practical politics, it figures to put a potentially powerful constituency in their corner – just as excusing art dealers and individual collectors from paying royalties stands to preempt a good deal of potential opposition."

"Perez, a museum trustee, shifted the focus away from art -- from what matters -- to himself, putting patron above artist, money above art."

2011-12-16T08:13:00.000-05:00

Here is an example of the Miami Art Museum's naming proposal drawing sharp criticism when other public institutions have been re-named with hardly a ripple of concern.

Are yoga poses copyrightable?

2011-12-16T07:47:00.000-05:00

The Copyright Office says no.

"Visual artists deserve a share in the sales and resales of their creative works." (UPDATED)

2011-12-15T14:23:00.001-05:00

The NYT's Patricia Cohen reports that resale royalty legislation has just been introduced at the national level: the proposal is to "set aside 7 percent of the price of artworks that are resold for more than $10,000 at auction houses," half of which would go to the artist and "the other half to nonprofit art museums."

Some related posts here, here, and here.

UPDATE: More from Helen Stoilas in The Art Newspaper: "The legislation, as it stands, would only apply to the resale of works at public auction houses 'with more than $25 million in sales in the prior year'. Auction houses that operate only online would be excluded, as would private galleries."

"Arkansas is America too."

2011-12-14T14:00:00.000-05:00

Bloomberg columnist Jeffrey Goldberg argues that Alice Walton's new Crystal Bridges Museum is "a moral tragedy" and a "compelling symbol of the chasm between the richest Americans and everyone else." He says the museum was built on "the exploitation" of the Wal-Mart employees "whose sweat pays for her paintings." He objects to Walton's "priorities": she "has the influence to help Wal-Mart workers, especially women, earn more money and gain access to affordable health care," but instead uses her wealth to buy art for the museum.

Reuters' Felix Salmon has a good response here, under the headline "How Alice Walton has improved America." He says, first of all, that the "sneer[ing]" Goldberg is looking a gift horse in the mouth:

"It’s not clear that Alice Walton does have a lot of influence within Walmart’s senior managerial ranks. Could Walton really help Wal-Mart’s workers earn more money and get better healthcare? Maybe she could; I’m not convinced. But here’s the thing: in what way does building a beautiful museum prevent her from doing just that? The only way, it seems to me, is if we’re in some kind of a zero-sum game, here, where the alternative to building the museum would be for Walton to take the money she would otherwise have spent on Crystal Bridges, and give it directly to Walmart workers."

And he says Walton's "impulses and her museum are admirable, whatever you think of Walmart":

"Walmart is a public company, now — it’s owned by hundreds of thousands of individual and institutional shareholders. ...Walmart has been good to Alice Walton, and she’s giving back to Bentonville and to America by building a fine museum in a part of the country which is relatively starved for cultural goodness. ... Well done to [Walton] for making that happen. Arkansas is a better place, now, thanks to Crystal Bridges, and Walton deserves our thanks. Not brickbats."

Judith Dobrzynski is with Salmon:

"Unlike many others in the art world, I have always believed that Walton was doing a good thing, bringing art to an area that sorely lacked the real thing. I have never understood the logic of those who complained about her efforts, as if non-city-dwellers should be content to travel to see art, and then, at the same time, argued for bigger government budgets for art .... I have no problem with the fact that she bought Kindred Spirits from the New York Public Library."

Fair use and appropriation

2011-12-14T13:03:00.000-05:00

Joy Garnett live-tweeted yesterday's interesting panel discussion.

Selective Bereavement Syndrome

2011-12-13T11:09:00.000-05:00

Saralyn Reece Hardy, director of the Spencer Museum of Art in Lawrence, Kansas, is "bereaved" because the Birger Sandzen museum in Lindsborg, Kansas sold a painting by Marsden Hartley. "It's a loss," she says. "It's the reason we exist, to share our collections with the public and hold them there in good faith."

Funny how no one was bereaved over the dozens of works sold by other museums at auction last month. I guess those museum do not exist to share those works with the public and hold them in good faith.

"There’s been a twisted interpretation that says Fisk has sold its art and it’s going away to this strange place in western Arkansas."

2011-12-13T10:58:00.002-05:00

"We’re sharing this collection, and it will benefit not only people in Middle Tennessee and the young people at Fisk, but the people who are now traveling to a world-class museum in Arkansas where a collection of early American art will be there to see."

"A Canadian art authenticator has cast a wider net in his defamation lawsuit against The New Yorker ..."

2011-12-13T09:37:00.000-05:00

"... , hoping to ream Gawker and about a half-dozen other media outlets and websites that publicized the magazine's original coverage."

Further thoughts from Lee Rosenbaum here.

Background here.

Is compiling a catalogue raisonné a "scholarly undertaking independent of the market"?

2011-12-13T09:30:00.000-05:00

Cristina del Rivero says no: "The inclusion/exclusion of a work submitted to a catalogue raisonné committee will affect its value on the market in a way not hugely dissimilar to an authentication board declaring a work 'Approved'/'Denied.'" (She's responding to this piece by Jack Flam.)

"Why [has] this naming proposal ... drawn such criticism when other public owned institutions have been re-named with hardly a ripple of concern?"

2011-12-12T22:20:00.000-05:00

Why indeed? The Nonprofit Law Prof Blog looks at the latest crusade of the Hall Monitors.

Don't exert yourself

2011-12-09T08:26:00.000-05:00

The AAMD's Chief Enforcement Officer continues to recommend that her organization "exert pressure" on Crystal Bridges for saving Fisk University from bankruptcy with a proposal that the Tennessee courts have found is the closest possible approximation of the donor's intent (complete adherence to such intent having been determined to be impossible), including keeping the works on the Fisk campus 50% of the time. Yeah, I guess they should be punished -- I mean, have "pressure exerted" on them -- for that. It is pretty awful.

Only Wrong When Brandeis Does It (a continuing series)

2011-12-09T08:11:00.000-05:00

In today's New York Times, Carol Vogel reports that, to finance some repairs, Kenwood House in North London is "taking a page from American museums" and "will raise money by lending parts of [its] collections to other institutions." Each borrowing museum "will pay Kenwood an undisclosed loan fee and cover the cost of insuring the art and preparing it for travel."

She meant to say rental fee for renting parts of the collection, right Hall Monitors? Or is that only important to insist upon when we're talking about Brandeis and the Rose? I just want to get the rules straight.

A little less chilly

2011-12-08T23:11:00.000-05:00

In a case that previously "sent a chill down the collective spines of the major auction houses," Christie's has defeated the fraud claims brought against it by Guido Orsi. The reason for the chilled spines was that Christie's didn't sell the work to Orsi; he bought it from someone else, who had bought it at Christie's. But the claim was allowed to proceed anyway.

And proceed it did, until a couple of weeks ago, when the Court granted summary judgment for lack of evidence of fraud:

"Orsi primarily relies upon GB's [Basquiat's father, Gerard Basquiat] testimony with regard to knowledge and intent to defraud. ...[But] GB could not identify or even describe the person with whom he spoke [at Christie's], except to state that he was fortyish and blond, 'maybe 5'8 or 5'9 maybe' (GB Dep at 126-127, 130). GB testified that he did not know the man's name, the man was just wearing a business suit with no Christie's emblem, GB did not know the man's title, and the man did not say to GB that he was from Christie's Contemporary Art Department (GB Dep. at 130-131). ...When [asked] if he ever told anyone at Christie's that he thought it was a fake, ... GB clearly asserted, 'Never' (id.). He attested that he did not tell the man that the Painting was not authentic (id). GB stated that he did not tell anyone at Christie's that he thought it was a counterfeit and did not ask the man or Christie's to withdraw the Painting from the Auction (id. at 132-133). When asked about whether he told other Christie's employees, ... with whom he had significant contact before in connection with appraising his son's estate and selling some of the paintings, some of whom worked in the Contemporary Art Department, GB again answered 'No' (id. at 134-135). It is undisputed that GB took no further action in connection with the Painting. This testimony is insufficient to raise a genuine issue as to Christie's intent to defraud and to its knowledge. ... Under the proof presented, the trier of fact would have to assume that the anonymous and unidentified person with whom GB spoke, over 20 years ago, worked for Christie's, had some authority, and conveyed what GB told him to a person with authority at Christie's, to show that Christie's had knowledge and intent. This proof, at most, creates only a shadowy semblance of an issue, insufficient on a summary judgment motion."

So Christie's wins this battle, but the spine-chilling principle of the earlier decisions -- that an auction house can be sued by someone they've never done business with -- remains in place.

"The brief is compelling and well-written, and steps perfectly into the role of an amicus"

2011-12-08T20:30:00.000-05:00

Nicholas O'Donnell was impressed with the Warhol Foundation's brief in the Prince-Cariou appeal. I discussed the brief here.

"In the long run, permitting scholars to freely publish their opinions about works of art without getting entangled in complicated, expensive and often gratuitous lawsuits will benefit history and art history."

2011-12-07T17:05:00.000-05:00

Dedalus Foundation president Jack Flam in the Wall Street Journal today:

"Since the exclusion of a work can greatly affect its market value, a good deal of pressure is sometimes exerted by owners of questionable works to have them included in the catalog. As a result, the scholarly authors of catalogues raisonnés have increasingly had to worry about potential lawsuits from collectors or dealers unhappy about the exclusion of works they own. ... As a result of this growth in litigation, many experts have been discouraged from giving opinions about authentication not only to the public but even to scholars studying other artists. Some artist-created foundations have entirely sidestepped giving opinions about authenticity by delaying the creation of catalogues raisonnés, or by declining to undertake supplements to already published catalogs. So far as I know, all such lawsuits have been unsuccessful, but they can nonetheless inflict an enormous loss of time and money on the foundations involved. ... There are laws, such as the anti-Slapp (Strategic Lawsuit Against Public Participation) statutes, that protect free speech for the public good. Since a substantial part of the U.S. art market is based in New York, the art community should work with that state's legislature to find a way to strengthen such laws so scholars can express their opinions without being intimidated or even silenced by the threat of litigation."

Everything You Ever Wanted to Know About the Knoedler Forgery Debacle But Were Afraid to Ask

2011-12-07T09:46:00.000-05:00

From Julia Halperin at ARTINFO.

Art Law Decision by Judge Kaplan in the Southern District

2011-12-06T20:48:00.000-05:00

You can read it here. Plaintiff bought 18 paintings from defendant for $9.5 million, then sued "essentially on the theories that [defendant] misrepresented the 'fair market value' of the paintings and that four of them ... were not authentic." A mixed result on the motion to dismiss -- the breach of warranty of authenticity survived, but Judge Kaplan didn't think much of the misrepresentation-of-value claims: "Insofar as [this] claim rests on the assertion that the seller warranted that the paintings were sold at fair market value when, in fact, they were sold at prices higher than fair market value, the claim is without merit. As noted previously, there is no objective, discernable fair market value except perhaps for fungible assets traded on an efficient market."

"However impoverished an institution, selling its artworks is rarely deemed an acceptable solution by the art world and the press."

2011-12-05T22:53:00.000-05:00

"But is it always the wrong thing to do? Fisk seems a good example to the contrary. The highly regarded institution, through no lack of effort, has not been able to fund itself effectively. O'Keeffe's magnificent gift has become a liability and Fisk has been unable to show it or look after it effectively. It does not intend to send the collection into private hands, nor to anyone who cannot take adequate care of it (Crystal Bridges is certainly not short of money with Wal-Mart behind it). In such circumstance, it is surely the the right choice to sell part ownership, rather than that Fisk should retain a collection it can't look after and cripple itself in doing so."

Elizabeth Emerson on the Fisk dispute.

Reves Lawsuit Against Dallas Museum of Art Dismissed

2011-12-05T20:47:00.000-05:00

Emphatically.

Background here.

"Once a sculpture is stolen, the first source of information may be scrap metal dealerships."

2011-12-05T20:09:00.000-05:00

The Art Loss Register's Chris Marinello: The Flap Over Scrap -- Theft and Vandalism in Exterior Sculptures.

Pieta bonds?

2011-12-05T08:39:00.000-05:00

Tyler Cowen: "Of course it could never work, even though it makes economic sense."

"I think time will show that Mr. Lugo is someone who has been struggling with particular difficulties and went through a very difficult six-week-to-two-month period."

2011-12-05T08:35:00.000-05:00

Not guilty plea for accused Picasso thief Mark Lugo.

"The point here is that the art market, like the stock market, runs on a combination of trust and storytelling ability."

2011-12-03T23:34:00.000-05:00

Felix Salmon on the Knoedler news.

"One day after the Upper East Side’s 165-year-old Knoedler & Co. abruptly announced it would close its doors ..."

2011-12-03T00:07:00.000-05:00

"... London hedge-fund executive Pierre Lagrange filed a complaint in Manhattan federal court alleging that the gallery sold him a forged Jackson Pollock painting for $17 million."

Related: Federal Inquiry Into Possible Forging of Modernist Art.

ALSO BREAKING: Knoedler Closing ... Effective Immediately

2011-11-30T23:33:00.000-05:00

Patricia Cohen has the story in the New York Times.

BREAKING: A little joy in Fiskville today (UPDATED)

2011-11-30T09:37:00.004-05:00

Fisk University has won its appeal in the latest round of the Stieglitz Collection litigation. It gets to enter into a sharing arrangement with the Crystal Bridges Museum -- and doesn't have to set aside $20 million of the $30 million pricetag in a separate endowment. Story here. Background here. More later when I've had a chance to read the opinion.

UPDATE: I've now read through the opinions. The majority affirms the basic cy pres ruling, but holds that "the court exceeded its statutory authority ... when it decreed how the proceeds of sale would be spent": "The court has no authority ... to effectively decree the manner by which the Collection would be used by Fisk in furtherance of its educational mission." The dissent took more of a Donor Intent Police approach: to permit the University "to monetize the Collection ... in order to infuse much needed capital" would "convert[] the Collection into money, which is in direct conflict with Ms. O'Keeffe's expressed intent. The record clearly reveals that Ms. O'Keeffe never intended for the Collection to be sold or otherwise monetized in order for Fisk University to pay its general operating expenses." It was therefore permissible for the court to allow Fisk to keep $10 million -- so that it can "rise above its current financial predicament" -- but order the rest placed in a restricted endowment.

Speaking of the Donor Intent Police, Lee Rosenbaum calls Alice Walton a "donor-intent violator" and calls for the AAMD to "strongly exert its influence" on Crystal Bridges for its bad behavior in saving Fisk from bankruptcy and keeping the Stieglitz Collection in the public domain. But it's important to note that there's no way to preserve the donor's intent here. The trial court already found that "Fisk's financial situation rendered strict compliance with the conditions impracticable," that "due to Fisk's financial situation, it was impracticable for Fisk to comply with Ms. O'Keeffe's condition that the Collection be maintained at and displayed by Fisk." The question to be determined in the litigation was which option most "closely approximated Ms. O'Keeffe's charitable intent" ... and the answer was Alice Walton's:

"To address Ms. O'Keeffe's condition that the Collection be displayed intact, the [Crystal Bridges] Agreement provides that the Collection will be displayed at the institutions on a rotating basis so that it will be available on the Fisk campus during at least two years of each student's four year matriculation at Fisk. With respect to the maintenance and display conditions, the agreement ... charges that [the Collection] committee, when determining what is in the best interest of the Collection, 'to take into account the conditions originally set out by Georgia O'Keeffe ....' In accordance with the original conditions, no item of work included in the Collection may be sold or exchanged, no item of work may be added to the Collection, and the Collection will be known, in perpetuity, as the 'Alfred Stieglitz Collection.'"

So the Tennessee courts have ruled that, far from being a donor-intent violator, Walton is actually the closest donor-intent approximator in this case. I suppose reasonable minds could differ about that -- one could argue that one of the Attorney General's alternative proposals was actually closer to O'Keeffe's intent, as if there were some kind of ruler to measure the distance between these things -- but it would be exceedingly odd for the AAMD to "strongly exert its influence" on Crystal Bridges for doing what the courts have sanctioned as the closest possible substitute for the donor's intent.

What We Talk About When We Talk About Appropriation

2011-11-29T17:10:00.002-05:00

Contemporary Art After Cariou v. Prince, a panel discussion at the City Bar Association, Dec. 13.

Show Me the CARFAC

2011-11-29T17:07:00.000-05:00

Andrew Russeth notes that "a group that lobbies on behalf of Canadian artists is calling on the country’s government to enact a resale royalty law that would guarantee artists a five-percent cut when one of their artworks is resold."

Related posts here and here.

"There've been so many deaccessions this fall that they seem routine ..."

2011-11-29T16:54:00.000-05:00

"... hardly worth noting."

"It is a global problem involving huge sums of money. They are banking on enough people being scared into paying."

2011-11-29T12:00:00.000-05:00

The Guardian: Art dealers are latest targets of online fraud.

"Overall, the three amicus briefs make a strong argument for—at the very least—a remand."

2011-11-28T22:03:00.000-05:00

The Fordham Intellectual Property Law Journal on Prince-Cariou: "The Southern District decision was too narrow in its transformative use analysis, and too broad in its application of liability."

"The problematic charitable-donation tax deduction"

2011-11-28T17:16:00.000-05:00

Felix Salmon wasn't impressed with Stephen Carter's recent piece on the virtues of the charitable deduction. The issue comes up in the context of his discussion of an article over the weekend in the New York Times on elements of Ronald Lauder's tax planning. Salmon's view is that "there is very little public policy served by giving Lauder [a tax deduction for transferring art to the museum he controls]. At the margin, does it make him more likely to open up a lovely museum of early 20th Century German and Austrian art in a Fifth Avenue mansion? Possibly. But the connection is tenuous enough that it’s hard to have any conviction in." Carter had argued that it is "silly" to "suppose that eliminating the deduction will have little effect on donations."

"There seems to be no overall magic answer for authenticating works of art: every method is flawed."

2011-11-25T23:50:00.000-05:00

Georgina Adam in The Financial Times.

"One way to increase the value of your art would be to have it become part of an oddly popular/famous art theft."

2011-11-23T13:14:00.000-05:00

The Art Market Monitor on one consequence of Mark Lugo's San Francisco Picasso theft.

"By encouraging individuals to make their own choices on how to spend money for the public good, the deduction makes society as a whole better off. Let’s keep it that way."

2011-11-22T22:34:00.000-05:00

Stephen Carter pushes back against the "rising mania among politicians" to "either eliminat[e] or severely restrict[] the charitable deduction." It's interesting throughout. Among other things, he argues that it's "silly" to "suppose that eliminating the deduction will have little effect on donations":

"Consistent research over the years has shown that charitable giving ... is price-elastic, at least in the higher tax brackets, where giving disproportionately takes place. ... The price of a gift rises when the value of the deduction falls. If a taxpayer in the 35 percent bracket makes a $1,000 contribution, the 'price' is only $650, because of the $350 deduction. Should his deduction be capped at, say, half its nominal amount, then the deduction is only $175, and the 'price' rises to $825. Should the deduction be eliminated, then the price of the $1,000 contribution is $1,000. It is difficult to imagine a universe in which this rising price would have no effect on consumption of a good."

Yeah, but they totally won't be the same

2011-11-22T12:18:00.000-05:00

"The Violette de Mazia Foundation and the Barnes Foundation are pleased to announce that they have come to an agreement that will allow continued access for the Violette de Mazia Foundation’s art-appreciation classes at the Barnes Foundation’s new galleries on the Benjamin Franklin Parkway in Philadelphia for many years to come."

"It’s an insult to the tree. It has nothing to do with urbanization."

2011-11-22T09:58:00.000-05:00

In San Francisco, a spate of tagging that "appears to violate one of the tenets of the graffiti subculture."

"Why you can’t always trust auction results"

2011-11-21T21:37:00.000-05:00

Felix Salmon explains.