Monday, March 18, 2019

"This is unusually broad because they claim they control not only what you take while you’re there but anything about it afterward." (UPDATED)

Apparently if you get a timed ticket to Thomas Heatherwick's new "Vessel" at Hudson Yards, they make you sign a photo release.

Cornell Tech's James Grimmelmann isn't having it:

"What a bad idea — and also a badly drafted clause. … It's even broader than photographs taken inside the Vessel. It also covers photographs 'depicting or relating to the Vessel' even if not taken from inside. So if you 'agree' to the license, it even applies to your later photographs of the Vessel taken from across the river. It also applies to 'audio recordings'(!) again regardless of where they were recorded. So if you go into the Vessel and then make a podcast about your visit, they claim a right in that too. On the other hand, they do stop short of claiming full ownership of your photos, audio, and video. They take only a license to use your media, plus a personal promise that you won't make commercial uses. So noncommercial postings are okay, it appears. But because they only take a personal promise not to make commercial uses, they have no recourse if *someone else* makes a commercial use of your media. So: Go to the Vessel. Take a photo or a video. Put it online with a Creative Commons Attribution license. You're not making a commercial use, and anyone else who does never agreed to the Vessel's terms. It's always amusing to see a clause this overreaching and also this badly drafted, like watching the mustache-twirling villain slip on the banana peel he dropped and fall face-first into a giant cake."

UPDATE:  The New York Times picks up the story:  Following Outcry, Hudson Yards Tweaks Policy Over Use of Vessel Pictures.  It's a good example of how, in the age of social media, this kind of copyright overreach is no longer tenable.  The backlash can be brutal.

Tuesday, March 12, 2019

"It doesn’t benefit anyone when there are thousands, if not millions, of works of art that are languishing in storage."

So says Glenn Lowry in this piece by Robin Pogrebin, not realizing that, when it comes to the public trust, "does this benefit anyone?" is not a relevant question.  What matters is ethics:  being really, extremely, very ethical.  And non-repulsive.

Lowry was already in my Deaccessioning Hall of Fame.

He's joined now by Gary Tinterow:

"'If an institution is faced with an existential threat, isn’t it better for the institution to survive with some works of art than no works of art?' countered Gary Tinterow, director of the Museum of Fine Arts, Houston, defending the Shelburne Museum in Vermont’s decision to sell $25 million worth of art in 1996."

(Deaccession Police answer:  no, because that would be unethical.)

Anne Pasternak adds that "there is increasing discussion these days about revisiting the strictures of deaccessioning policies. But she acknowledged 'there is a lot of fear around this conversation.'"

And Charles Venable asks:

"What is the balance between almost obsessively art collecting and spending vast amounts of resources on it?  Are we really just addicts collecting objects that our curators bring in generation after generation?"

Or, as I said just a couple days ago, even assuming there is such a thing as the public trust (and there's not) "the point of the trust should not be just to keep accumulating [works of art] but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection."

A frightening thought, I know.  You can see why there's a lot of fear around the conversation.

Sunday, March 10, 2019

Saturday, March 09, 2019

"With sale of Rothko, is SFMOMA creating a heritage, or dismantling one?"

I'm a little late to it, but San Francisco Chronicle art critic Charles Desmarais has a piece on SFMOMA's decision to sell a major Rothko and use the proceeds to diversify its collection.  He discusses a number of reactions to the news, including mine:

"Donn Zaretsky, publisher of the Art Law Blog, is a ceaseless opponent of the strict guidelines museum associations place on the use of deaccession funds (they can only be used to buy works of art that are meant to enhance the collection, and not be sold off to raise money for general operating support or capital needs). He titled a post, 'Tell me again about the public trust (1960 Rothko edition).' It was a reference to the argument, correct in my view, that museums have an ethical responsibility to preserve and cultivate collections for the benefit of their communities."

And then he goes on to say:

"Few who demand that museum collections be respected as a public trust would say that every object has equal status, and an equally permanent claim. Rather, it is the collection as a whole that should be preserved for future generations. I, for one, have no problem with pruning the tree to promote greater vigor of the larger organism."

This is interesting, in a couple of ways.

First, this is the first time I've seen someone assert that, when it comes to the public trust, not every object has "equal status" or an "equally permanent claim."  The idea seems to be that some works are held more in the public trust than others -- that some are held extremely in the public trust and others are held in the public trust but not so much.  But if this is true, how do we know which works are in which category?  Is there a database somewhere that includes their level of public trust-ness along with their provenance and exhibition histories?  "This work is a 7 on the Public Trust Scale and that one is a 4"?

The other idea here, and this one I have heard others express from time to time, is that it's not the individual works in a museum's collection that are held in the public trust but, rather, the collection as a whole.  The analogy, I take it, is to an investment portfolio.  If I am the trustee of your trust, it doesn't matter if I sell off this Google stock or those shares in Apple so long as the portfolio as a whole is not dissipated.  The same is true here, the argument goes:  it doesn't matter if you sell the Rothko "stock" as long as you replace it with other artist stocks.

It's an interesting move, and probably the only way to salvage anything of the "public trust" argument, but ultimately I think it's not persuasive.  First of all, Google and Apple shares in a trust can be sold and the proceeds used for things other than buying different stocks -- they can be used to pay trustee commissions and accounting fees and legal fees (thank God), for example -- and, much more importantly for present purposes, there is a beneficiary of the trust and the point of the trust is to benefit that beneficiary and if that means selling stocks to pay for their education expenses, or housing, or medical expenses, that's perfectly fine, in fact it's the whole point of the trust.  In the public trust analogy, the beneficiary is, well, the public and the point of the "trust" should not be just to keep accumulating shares of stock (works of art) but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection.

Look, at the end of the day the notion of the public trust is just a metaphor, meant to express the (absolutely correct) idea that the collection is really important to us and the works that make it up should not be disposed of lightly.  But when we have a good reason to -- whether it's to buy more art, or to diversify the collection, or to keep from going out of business, or anything else that counts as a good reason -- that should be fine, it's not a violation of any sort of trust, it's not unethical, it's not Stalin-esque. The public trust (if it existed) should be for the benefit of the public.

Saturday, March 02, 2019

"Such a wide discrepancy in valuation could be a concern for the Internal Revenue Service, should Mr. Benioff wish to claim the donation on his tax return ..."

The Times has a story today about tech billionaire Marc Benioff, who bought a Hawaiian war god sculpture for $7.5 million at auction and then donated it to a museum in Honolulu … but now "some international experts say the piece could be from the 20th century and worth less than $5,000."

I discussed another case involving tax deductions for fakes here, but in this case it's far from established that the piece is inauthentic.

"My concern was that Bob would die and it would be a mess. Well, Bob did die and we have a mess. It’s very sad."

Boston Globe:  In wake of famed artist Robert Indiana's death, a tangle of allegations.

"Art dealer Philippe Hoerle-Guggenheim, who has earned fawning media coverage for his flashy Chelsea gallery and famous name, is facing a lawsuit over allegedly accepting money for artworks—and then failing to deliver them."

Story here.  "The lawsuit also gets personal, questioning Hoerle-Guggenheim’s alleged ties to Solomon R. Guggenheim."

Monday, February 18, 2019

The Swizz Beatz Resale Royalty Solution

Mentioned in this NYT Style Magazine profile:

"Dean has proposed sidestepping the law entirely and instead introducing an option for collectors selling a work through an auction house or gallery to simply check a box — yes or no (he’s been referring to it unofficially as 'the Dean Choice') — to indicate whether they’d like to give a percentage of the sale to the artist. He suggests that 3 to 5 percent is a fair commission. …

"'If you’re really a patron,' he continues, 'and really a collector, you’re gonna say yes. And I feel that in the first year we introduce this option, 30 percent are gonna say yes. And then the year after that it will be 60 percent, and then it will just keep going up from there, and then we won’t even need a rule. It will just be the thing to do. People are gonna want to check yes because the artists will know if they don’t — if they didn’t do the right thing.'"