Tuesday, May 26, 2020

Ninth Circuit Reinstates Authentication/Defamation Lawsuit

I first posted about this case back in 2017 under the heading "Here's what can happen when you say a work is fake."

The district court dismissed the case in 2018.

Now the Ninth Circuit has reversed. You can read the decision here.

The main grounds for reversal had to do with the issue whether the defendant had to have known the specific identity of the plaintiff at the time of the allegedly defamatory statements (answer: it did not), but the Court also threw in the following:

1.  Rejection of the district court’s conclusion that a jury could not conclude that certain of the statements at issue -- which remember were typical authenticity statements -- implied “an assertion of objective fact under the circumstances." In other words, a statement that a work is inauthentic can be considered an assertion of fact for purposes of a defamation claim.

2.  Rejection of the argument "that an assertion that a painting is a fake is categorically not a communication that may be defamatory of a seller who has sold—and warranted—it as authentic." In other words, a statement that a work is inauthentic can, depending on the circumstances, form the basis of a claim that the seller has been defamed.

3.  Holding that, whether or not the authentication claims "might be understood as an opinion," a jury "could easily find otherwise given the language used." In other words, a statement that a work is inauthentic is not necessarily opinion (and therefore can in theory form the basis of a defamation claim).

So once again: here's what can happen when you say a work is fake. As a general rule, it's still a good idea to keep quiet.

"Selling to Survive"

Saturday's CBS This Morning had a segment on the changes to the AAMD deaccessioning guidelines.

It's about four minutes long and worth watching in its entirety.

Couple things worth mentioning.

There's no mention of the public trust. The new rationale for the general rule, offered by AAMD president Brent Benjamin, is that "the idea is that you don’t benefit today’s visitors at the expense of tomorrow’s, and you don’t benefit tomorrow’s visitors at the expense of today." But it should be obvious that that doesn't really make any sense if you think about it. First of all, almost every dollar a museum spends today, on programming, on engaging with today's visitors, and so on, is in some sense benefiting today's visitors at the expense of tomorrow's. You could always just put that money in the bank and save it for the future, to benefit tomorrow's visitors. There's no way museums can sensibly do this sort of intergenerational calculation for every decision they make.

More to the point, how in the world does it benefit today's visitors or tomorrow's visitors if a museum is forced to close its doors? Doesn't Benjamin's principle argue in favor of selling whenever a museum faces a financial crisis (i.e. not just in a pandemic)?

Maybe they should have stuck with the public trust.

I also really liked Baltimore Museum of Art director (and aggressive deaccessioner) Christopher Bedford's statement of what should really matter to museums: "Serving our publics. Being vital, being relevant, keeping our doors open."

I think that's exactly right, and not just till April 10, 2022.

Tuesday, May 19, 2020

"Why the AAMD's move on deaccessioning matters so much"

Mark Gold and Stefanie Jandl explain.

Bottom line: "Going forward, it will be extremely hard for the AAMD–or anyone else–to pass judgment on a museum’s decision in the face of any existential threat."

That's correct.

The logic of the AAMD's current position seems to be that (non-acquisition related) deaccessioning is okay if the entire sector is experiencing serious financial strain, but not okay if any individual museum is experiencing serious financial strain. I just don't see how that makes sense.

"When it’s a matter of survival, let museums sell art"

Says the Boston Globe editorial board.

Remember, prior to about a month ago that statement -- when it's a matter of survival, let museums sell art -- would have been considered repulsive, beyond the pale, self-evidently unethical.

A Museum Director Responds To Those Who Have Suggested The Museum Should Dip Into The Endowment

Sort of.

Friday, May 15, 2020

"What Legal Rights Do Artists and Galleries Have During a Pandemic?"

Helpful overview here.

"New Hampshire mother and son in art fraud case want $250 million"

What's interesting about that is that the mother and son lost the art fraud case. Collector Andy Hall won a $465,000 judgment against them in 2018.

Now, "[i]n a lawsuit the mother and son filed, the pair allege that media outlets like The Keene Sentinel, New Hampshire Public Radio, The Concord Monitor, and the Monadnock Ledger Transcript, defamed them by reporting on the case incorrectly."

Monday, May 11, 2020

Is this repulsive?

Architectural Digest: "French news outlet Le Figaro reports that the Mobilier National, the country’s national furniture collection, will auction off an estimated 100 pieces of furniture and objets d’art to raise funds for the Foundation for Paris Hospitals and French Hospitals."

Does that feel repulsive to you? It doesn't feel repulsive to me.