Thursday, August 09, 2018

"So here’s the upshot: in a resale royalties scheme, 99% of artists will likely lose, so that the top 1% can win. This reverse-Robin Hood story is not some bug in the system -- it is its main feature."

Chris Sprigman and Guy Rub make the case against resale royalties for artists:

"We collected data representing all sales at public auctions conducted by Sotheby’s and Christie’s during March and April 2018. We examined how resale royalties from those sales would have been distributed if the so-called ART Act, the last bill attempting to enact resale royalties on a national level, was in place. The results are telling.

"If the ART Act had been law, 683 transactions by Sotheby’s and Christie’s in those two months might have been subject to resale royalties payments. Those sales ... would have generated royalty payments totaling over $2.3 million. A nice sum, but for whom?

"For the rich, and, in particular, for the rich and dead. Most of the royalties (57%) would have been paid to the estates of deceased artists, typically very famous ones. That list is dominated by some of the most prominent artists of the 20th century: artists who, on top of being critical and popular favorites, were wealthy in their lifetimes and left fortunes to their heirs. ..."

"So it’s clear that top-tier artists and their heirs make out like bandits under a resale royalty scheme. It’s also clear who doesn’t: young artists. There is not a single living artist in his or her twenties in our data who receives a resale payout. Total royalties for living artists in their thirties is only $6,813, or 0.29% of all royalties. Even artists in their forties are largely shut out. The top earner under the age of 50, the 49-year-old Shahzia Sikander, would have made just $5,125. In fact, all artists under 50, together, would have made only $52,906 in those two months, which is just 2.28% of all royalties, and about one-sixth of what the Andy Warhol Foundation alone would have reaped."

It's a pretty convincing argument against the ART Act ... but I still think there's a version of a resale royalty scheme that may make sense (which one day I'll try to spell out in more detail).

Monday, August 06, 2018

The Times had a critical piece yesterday on donor-advised funds ...

... which are commonly used in the art world.  The story is here.

Harvard's Greg Mankiw (convincingly) finds it "unconvincing":

"The headline and tone of the article suggest something nefarious is going on. But unless you think that future charitable spending is less admirable than current charitable spending, nothing of the sort is the case. ... [T]he donor of the funds cannot get the money back to finance his consumption or that of his heirs. The money has to eventually go to IRS-approved charities. Putting money into a DAF is essentially a commitment to give that part of your wealth, plus all future returns on it, to charity. As such, DAFs should be applauded."

Sunday, August 05, 2018

"Split decision in lawsuit over forged paintings sold by ex-Franklin Pierce professor and her son"

Story here:

"In a detailed ruling, U.S. District Court Judge Steven McAuliffe dismissed the warranty claim Hall had brought, concluding that because the case was brought four years after the purchase of the art, that was too late.  ...  But McAuliffe declined the bid of the Gascards to dismiss the other three charges, fraud, conspiracy to defraud and unjust enrichment.  ...  'Hall, on the other hand, has pointed to sufficient facts which, if credited as true, would permit a jury to conclude by clear and convincing evidence that the Gascards knew the paintings at issue were forgeries (or, at a minimum, that they were consciously indifferent to that fact),' McAuliffe wrote.  The decision means those three remaining counts are on a path to go to trial later this year."

Background here.

"Adrian Ellis has offered what I think is one of the best ways to address the deaccessioning dilemma."

Museum consultant Bob Beatty has a piece up at Hyperallergic on "the deaccessioning debate in museums."  As evidenced by his approving citation of the Ellis Rule, he seems to be in favor of a loosening of the "ethical" prohibitions on deaccessioning, but also seems keen to avoid the ire of the tomato throwers, so he's pretty subtle about it all.

"How Robert Indiana’s Caretaker Came to Control His Artistic Legacy"

NYT story here.  Background here.

"Decision should put decade-long legal battle between museum and heirs of art dealer Jacques Goudstikker 'to rest'"

The Norton Simon-Von Saher litigation, which I wrote about for the Journal of Art Crime all the way back in 2010, appears to finally be over.

Wednesday, July 18, 2018

"G.M. Used Graffiti in a Car Ad. Should the Artist Be Paid?"

The New York Times reports:

"Mr. Falkner’s case is set to turn on another unsettled question of copyright law. Last month, lawyers for G.M. sought to end his lawsuit by claiming in court papers that the company was allowed to use his parking garage mural because of a provision in the law that says images of 'architectural works' do not have copyright protections. In their papers, the lawyers argued that the parking garage was itself an architectural work and that Mr. Falkner’s mural was not protected under the law because it was 'incorporated into a building.'"

And in response:

"Last week, Mr. Gluck [the artist's lawyer] filed his own court papers, suggesting that the architectural exemption was put in place to protect the public from being sued for taking and posting photos of significant structures like the Washington Monument or the Space Needle in Seattle. If a parking garage — even one covered in art — could be construed as a significant structure, Mr. Gluck maintained, it would have widespread implications.  'If GM’s view prevailed,' he wrote, 'all graffiti art that exists on a building — that is, most graffiti art — would suddenly be unprotected by copyright.'"

Saturday, July 14, 2018

"A new criminal case was recently opened in Geneva after a fraud complaint was filed in late 2015 by an unnamed industrialist from the Baltic region, who has accused an art dealer of overcharging for works by artists such as Pablo Picasso, Henri Matisse and Alberto Giacometti."

"This may sound like a familiar story, but it has nothing to do with the battle between Yves Bouvier and Dmitry Rybolovlev."

"Monterey’s Dalí17, which displays the 500-work private collection of the Ukrainian-born real estate developer Dimitry Piterman, features the Surrealist’s face—complete with upturned moustache—on its logo."

The Art Newspaper: Dalí foundation sues California museum for use of artist’s name and image.

Brandon Butler tweets:  "This lawsuit seems crazy—if a museum full of Dali art can’t use 'Dali,' what should it be called? 'Museum of the Melting Clocks Guy—You Know, with the Weird Mustache'?"

On the other hand:

"Coblentz Patch Duffy & Bass partner Lawrence Siskind, who’s not involved in the case, said at first blush it sounds as if the foundation has a strong case. If the museum called itself 'The Museum of Surrealism' and exhibited Dali retrospectives, that probably wouldn’t break any laws. It could even create a website called and publish commentary and criticism about his artwork.  But use of 'Dali' as part of the museum’s name might imply that Dali’s heirs or owners of the rights have authorized use the name, or endorsed the museum, Siskind said."


"UC Hastings School of Law civil litigation professor David Levine said Piterman 'may well have a problem' by using Dalí’s name and image to promote the museum. It’s one thing, Levine said, to display a Dalí painting on a museum wall. It’s another thing to use Dalí’s image to promote it.   To be safe, Levine said, Piterman needs a different strategy.  'If he advertises it as "Dmitry’s Museum Featuring Works of Salvador Dalí" without using Dalí’s likeness, that’s probably OK,' Levine said."

"Now Ms. Columbus, 43, has filed a complaint with the New York City Commission on Human Rights, asserting the museum discriminated against her in violation of the city’s laws on caregivers, pregnancy and women’s rights."

NYT:  Curator Says MoMA PS1 Wanted Her, Until She Had a Baby.

Paddy Johnson comments here.

"The Wayfair decision looks like a sales tax game-changer for many New York galleries."

Says Tom Danziger in this artnet piece on a recent Supreme Court decision involving the power of states to require out-of-state sellers to collect sales tax on objects shipped into the state -- say works of art, for example.  Here's the New York Times story on the decision.  More here generally, and more here as it relates specifically to the art market.

"Having determined that the face of plaintiff’s sculpture is distinct, original, and protected, we find that defendant’s use was infringing."

Here's an interesting one:  the US Postal Service owes an artist $3.5 million for using what they thought was a photo of the Statue of Liberty on a stamp but which turned out to be a photo of a variation on the actual statue that lives outside a New York-themed hotel in Las Vegas.  The decision is here.

Berkshire Update

At the Center for Art Law, Jennie Nadel has a good summary of where things stand.

The Berkshire Eagle says a "new era" for the museum has begun.

And, in case you were wondering, opponents of the sale are still opposed.  They have not changed their minds.

More on the California Resale Royalty Decision

Lots of coverage over the last week.  Nicholas O'Donnell has a very good, comprehensive overview of the twists and turns the case has taken.  His conclusion:  "Barring unexpected developments (or Supreme Court intervention and reversal), this is probably the end of the line for droit de suite in America."

The New York Times report is here:  California Tried to Give Artists a Cut. But the Judges Said No.

Brian Frye says the decision is "a big deal, but should not come as a surprise to anyone."

Jori Finkel's report in The Art Newspaper points out that "the ruling could also open the door for Christie’s and Sotheby’s to hold more contemporary auctions in Los Angeles, free of both the burden of paying the 5% royalty and the pressure of navigating and litigating this issue."  And she includes a glass half-full take from ARS's Ted Feder:  "On the bright side, the Ninth Circuit decision recognises this federal pre-emption, which in our view argues for adoption of a national right, covering all the States."

On the glass half-empty side, echoing O'Donnell's conclusion, Daniel Grant's Observer report declares that "artist resale royalties in the United States, like Old Marley in the Dickens story, are as dead as a door-nail."  I think this take may overstate things.  Yes, resale royalties are currently a little deader than they were before this case, in the sense that there used to be one state that had them and now there are (and can only be) none.  But it's at least possible that, on the national level, there may be slightly more momentum for resale royalty legislation after this decision than there was before.  It's still pretty unlikely, but I don't think we can rule it out completely.  I still think there's a version of a resale royalty law that make sense.

Friday, July 06, 2018

"Our decision today means the CRRA had a short effective life."

BREAKING:  Ninth Circuit rules that the California resale royalty law is preempted by the 1976 Copyright Act (so -- at most -- the plaintiffs can pursue claims from the period between the law's effective date of January 1, 1977 and the 1976 Act's effective date of January 1, 1978).

For background, start here.

Tuesday, June 26, 2018

"Sir Anish Kapoor’s Clenched Fist of Copyright, the Battle Over Fair Use, and the NRA"

Sergio Muñoz Sarmiento, writing at Hyperallergic, on Anish Kapoor's lawsuit against the NRA.

Related:  Mike Masnick at Techdirt:

"This is so obviously fair use that it's not even worth going through the full four factor analysis. This is less than a second in a political video showing a public sculpture in a public location. It's not key to the video. It's used as part of commentary.  The nature of Kapoor's lawsuit, however, is quite obviously to stifle free speech he disagrees with."