Saturday, September 14, 2019

“I wish it was a prank,” he said, adding that the story “is deadly serious if even a little bit surreal since the subject of the robbery was a toilet.” (UPDATED)

Maurizio Cattelan's gold toilet was stolen this morning out of an exhibition at Blenheim Palace.

UPDATE:  ARCA:  "All puns aside, and in this case there are many floating around, gold is presently valued at around $1,500 per troy ounce. 18 karat gold is a mixture of pure gold and other metals in the ratio 3:1.  Using that ratio, the toilet would have been made up of 75% pure gold, 15% silver and 10% copper.  Weighing in at 103 kilos of gold (3311.53 troy ounces), once melted down, the smelted gold would be worth $4,967,295 USD."

Thursday, September 12, 2019

"Attack Leaves Wall Street’s Iconic Bull With a Gash on Its Horn"

New York Times story here.

More on the 5Pointz oral argument

From Amelia Brankov here, including the following:

"Significantly, the defendants argue that VARA does not apply to the 5Pointz aerosol works because the underlying protocol at 5Pointz was that the works were generally intended to be temporary and the site curator would allow one artist's works to be painted over by another purportedly without complying with VARA's waiver/notice provisions.  While the judges reserved decision on this (and all other issues) at the hearing, responses from the bench included comments that, if temporary work was not protected, then The Gates, an iconic temporary installation by Christo and Jeanne-Claude in Central Park, would not be protected by VARA, and that even if the artists' rights previously were violated by the 5Pointz curator, that does not mean that the defendants were free to disregard the artists' rights under VARA."

That's interesting.  One of the odd things about the case to me has always been that it seemed to suggest:

1.  Work painted over by another artist (which apparently happened routinely) ... no VARA violation.

2.   The same work painted over not by another artist but by the owner of the property ... VARA violation.

But the appellate judges seem to maybe be suggesting a different answer, namely that they were VARA violations all along, that every time Artist A painted over Artist B's work it was a VARA violation but nobody did anything about it, the relevant norm in the community was to let the violation slide.  But, in theory, they could have sued every time their work was painted over by the next artist up.

Counterpoint:  who knows?  As I said in response to a similar report last week, it can be a mistake to read too much into oral argument.  Let's see what ends up happening.

Mercedes survives motion to dismiss in street art infringement lawsuit

It involves some photos posted on Instagram that showed the defendants' murals.  (The artists are the defendants here because Mercedes brought a declaratory judgment action against them.)  Story here, including a link to the full opinion.  Background here.

The Court went out of its way to emphasize:

"Overall, Mercedes has alleged a plausible claim that section 120(a) of the AWCPA protects Mercedes' right to photograph publically visible buildings which contained defendants' murals.  Whether they will prevail on this claim is not before the Court at this time."

So what is that plausible claim exactly?  It's that murals on the exterior of a building are "part of an architectural work as elements in the [building's] design," that they are "design element[s] of the building."  I suppose that's plausible, but it seems more natural to me to say a mural is painted onto a work of architecture.  There was a similar case about a year ago (although in a completely different posture; the question was not just about the "plausibility" of the claim) which included the following language:

"There is also no indication that the mural was designed to appear as part of the building or to serve a functional purpose that was related to the building. Instead, there is undisputed evidence that Plaintiff was afforded complete creative freedom with respect to the mural, and that the design of the mural was inspired by Plaintiff’s prior work. Plaintiff was not instructed that the mural should play a functional role with respect to the parking garage or that the design of the mural should match design elements of the garage. Indeed, the architecture of the parking garage and accompanying building were already complete before Plaintiff started painting."

I would guess the same is all true of the murals here, though I suppose discovery might prove otherwise.

Tuesday, September 03, 2019

"The complaint asserts that nothing is more antithetical to a street artist’s credibility than association with something as banal and commercial as a grocery store chain." (UPDATED)

artnet news:  A Street Artist Is Suing a Grocery Chain for Allegedly Using His Work in an Oprah-Narrated Super Bowl Ad Without His Consent.

UPDATE:  Brian Frye says "if you paint your work on the side of a building, you can't complain if people photograph it."  But this is part of his larger view that all public art should be fair game (which he reiterates here: "I think if you put your work in public, the public can & should be able to use it however it likes").

"Graffiti-Whitewash Appeal Lands With Thud at 2nd Circuit"

It's sometimes a mistake to read too much into oral argument, but Courthouse News's Amanda Ottaway thinks things did not go well for the developer in the 5Pointz appeal last week.  Her story is here.  As she put it on Twitter, "the real estate developer who whitewashed the graffiti says the artists painted over each other's work all the time, so if he violated the law, they did too."  But (returning to the news story) "the appellate panel was quick ... to push back against [the] argument that ephemeral art might be less than deserving of federal protection.  'There are all kinds of galleries that perhaps you and I don’t go to that have temporary installations,' said U.S. Circuit Judge Barrington Parker."  Background here.

Gagosian-Koons Lawsuit Survives Motion to Dismiss (UPDATED)

Story here.  This is the one with the ouroboros.  A similar suit, by Joel Silver, recently settled after it emerged that it was being funded by Ron Perelman.

More later when I have a chance to read the decision.

UPDATE:  I've read the decision.  There were basically three sorts of claims that survived:

1.  The claim that late delivery is a breach even though the agreement only had an "estimated" completion date.  The Court ruled that "whether the delay constitutes a breach depends on what constitutes acceptable commercial conduct in view of the nature, purpose and circumstances of the action to be taken" -- and that could not be decided on a motion to dismiss.

2.  Claims under the UCC "repudiation" provision.  "Here, Tananbaum sufficiently alleges a repudiation … because he alleges that: (1) after Gagosian repeatedly delayed the Works, Tananbaum made a written demand for adequate assurance of Gagosian's performance; and (2) Gagosian failed to provide that assurance within a reasonable time."

3.  Claims under New York's "multiples" law.  The complaint alleged that Tananbaum "requested an image of and descriptive information about" the two editioned works before entering into the relevant agreements and, the Court said, "I must accept as true Tananbuam's allegation that available information was sought and not given."  It did strike the demand for treble damages because the "conclusory allegation that Gagosian 'willfully failed to disclose information' … is insufficient to sustain [the] demand for treble damages particularly where, as here, Tananbaum alleges that he was represented by an art advisor, and he proceeded with the purchase despite the limited information of which he now complains."  He can seek his money back (plus interest), but that's it.

Wednesday, August 28, 2019