Again?

Tyler Green wonders if the Met is violating its own deaccessioning policies once more. Deja vu all over again?

Kinkade Suit

The L.A. Times reports that an arbitration panel has awarded $860,000 to two former "Thomas Kinkade Signature Gallery" owners in their claim against Kinkade and his company, "Media Arts Group Inc." Kinkade describes himself as "America's most collected living artist," and there was some evidence of that in the arbitration: according to testimony, Kinkade took in $53 million in sales royalties from 1997 through May 2005.

Another High Profile Art Theft

This time in Rio de Janeiro. Works by Picasso, Matisse, Monet and Dali, worth at least $20 million.

Licensing Andy Warhol

artnet Magazine has news (scroll down; second item) of a Forbes study that showed that the estate of Andy Warhol earned $16 million in licensing income in 2005, placing him fourth among "top-earning dead persons," trailing Elvis Presley ($45 million), Charles M. Schultz ($35 million) and John Lennon ($22 million), but finishing ahead of, among others, Dr. Seuss ($10 million). It's apparently the fruit of a very productive alliance with the master licensing agents the Beanstalk Group.

Sleazy, Scheming, Conniving, and Treacherous

Charles McGrath's review of Ed Hayes's memoir in the most recent Sunday New York Times Book Review says the "most interesting section" of the book is the one which describes "one of the few times when Hayes has found himself in over his head" -- namely, when he got involved with the art world:

"In February 1987, Hayes became counsel for the estate of Andy Warhol. The appointment was in part a fluke — Warhol died on a Sunday, when none of the white-shoe law firms were answering their phones. And though Hayes, in pursuit of a woman, had once jimmied a lock and forced his way into a Warhol party, where he got his butt pinched by Andy himself, he knew nothing about art or the art world. He had to learn on the fly, and he sensibly concluded that his main task was to maximize the value of the estate by building up Warhol's posthumous reputation. Everyone stood to gain, he figured — the beneficiaries and, not incidentally, Edward Hayes, who would be getting a cut. Except that for reasons too complicated to explain here, the executor and the Warhol Foundation decided that the assets were actually more valuable to them if they were worth less, and charged Hayes with incompetence and money-grubbing. The whole business dragged on for a decade, and by the time Hayes was finally vindicated he was close to both bankruptcy and a nervous breakdown. He concluded that he had vastly underestimated his adversaries, and that the cultural elite and the slick lawyers who represented them were 'sleazier, more scheming, more conniving and far more treacherous' than any of the criminals and lowlifes he was used to."

Met-Italy Deal: The Terms

This site has the text of the recently concluded agreement between Italy and the Met.

Daniel Johnston and the Devils

Sunday's New York Times Arts section had a fascinating story on 45-year old artist Daniel Johnston, whose work will be included in this year's Whitney Biennial. According to the article, Johnston, who lives at home with his elderly parents, suffers from "serious bipolar disorder," has spent quite a bit of time in mental hospitals, and recently was in "a comalike state for several weeks." The story raises serious questions about his competency. (One example: Asked what he thought of the Clementine Gallery -- where an exhibition of his work opens in March, and whose owners traveled to Texas in September to meet him — Johnston said: "I have no idea. I've never heard of them." Another: Asked if he planned to come to New York to see his work at the Biennial, he replied: "I'm not in any condition to go overseas. It would wipe me out.") Professor Patry discusses the competency issues, as they relate to copyright, here. Similar issues arise with respect to his ability to enter into contracts, make gifts, etc. Unfortunately it's hard to imagine an outcome that doesn't involve increasing battles over his artistic output.

More on the Pollock-Matter Matter

Steven Litt of the Cleveland Plain Dealer reviews the Jackson Pollock authenticity dispute I mentioned here, and is particularly critical of the Pollock Krasner Foundation's decision not to release the full "fractal" study that cast doubt upon the works' authenticity:

"By authorizing only journalistic summaries of [physicist] Taylor's work, the Pollock Krasner Foundation has prevented disinterested scholars from reviewing his analysis. Instead, it has bolstered a negative view of the newly discovered paintings without giving anyone else a fair shot at critiquing Taylor's study."

Email Scam

Edward Winkelman reports on an apparent email scam targeting young artists. Photographer Matt Achhammer has a related post here. This falls under the ancient legal principle: if it sounds too good to be true, it probably is.

Met Deal

Italy and the Metropolitan Museum have signed a deal ending their long-running dispute over the Euphronios krater and other works.

More on the Chihuly Lawsuit

Seattle local paper The Stranger has some more background on the infringement lawsuit by Dale Chihuly that I posted about here.

Another Daylight Robbery

This time of a painting by playwright August Strindberg, from a museum in Stockholm.

Prison Sentence for Selling Fakes

A federal judge has sentenced a Manhattan art dealer to four years and eight months in prison after he plead guilty to committing wire fraud by selling forged artworks online.

Pollock Kerfuffle at Everhart Museum

There was a lot that was odd in this report about a Pollock painting allegedly stolen from the Everhart Museum in Scranton, including (a) the owner's claim that he doesn't know a single private collector who insures his artworks and (b) that the museum's surveillance cameras "are not set up to record images." Now comes a follow up report that the museum's insurance company (whose owner also seems to be a member of the museum's Board of Trustees) is refusing to pay out a claim -- on the grounds that the work "is a fake." This may now put the museum in a bind: the painting's owner -- who vigorously disputes the insurer's claim ("a tissue of lies") -- could potentially have a claim against the museum for failing to return his property to him. Presumably the museum would then have the burden of proving the work was inauthentic, which might not be so easy given that (a) now that it's been stolen, there's no way to physically examine the work (a point the owner explicitly makes in the article) and (b) the museum itself had previously accepted the work for exhibition and told the world that it was an authentic Pollock. According to the article, if authentic the painting could be worth as much as $11 million.

Scream Trial Opens

The BBC has this report as the trial gets set to open.

ADA Lawsuit

The Miami Herald has this report of a lawsuit brought against the Fort Lauderdale Museum of Art under the Americans with Disabilities Act.

More on the Getty Woes

Over the weekend, Randy Kennedy and Carol Vogel had this report on what the California Attorney General is looking into at the Getty. The L.A. Times has more on the subject here, noting that the probe "could threaten the Getty's nonprofit status." I would think, especially given some of the numbers involved (Kennedy-Vogel report that one former executive was paid $3 million on her resignation, almost nine times her base salary of $350,000) the IRS might have something to say here as well.

DiCorcia DeCision

Artist Philip-Lorca DiCorcia and Pace MacGill gallery have prevailed on summary judgment in the "privacy" lawsuit brought against them by the subject of one of DiCorcia's photographs ($). The suit was brought under New York Civil Right Law sections 50 and 51, which prohibits the use of someone's name or likeness without their consent "for advertising purposes or for the purposes of trade." The photograph of the plaintiff was produced and sold in an edition of 10 plus 3 artist's proofs, shown at Pace in the Fall of 2001, and included in a catalogue that accompanied the exhibition. Nevertheless, following cases involving the model Cheryl Tiegs (Simenov v. Tiegs, 159 Misc.2d 54 (N.Y. Civ. Ct. 1993)) and the artist Barbara Kruger (Hoepker v. Kruger, 200 F. Supp. 2d 340 (S.D.N.Y. 2002)), the Court held that "artistic uses" are exempt from the privacy statute. The Court noted that "art can be sold, at least in limited editions, and still retain its artistic character" ("first amendment protection of art is not limited to only starving artists") and that "a profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes."

All of that seems right, and consistent with the prior caselaw. But the case also includes a (slightly more muddled) discussion of the more difficult question of the applicable statute of limitations. The limitations period under Sections 50 and 51 is one year -- but one year from when? The Court clearly rejected any rule based on plaintiff's discovery of the unathorized use. Instead, it noted that New York's First Department follows "the single publication rule" -- i.e., the statute begins to run from the first unauthorized use -- in which case, since he didn't bring suit until April 2005 (three and a half years after the Pace exhibition), plaintiff's claim was clearly time-barred. But since the single publication rule is "not universally followed in other departments" -- it cited Russo v. Huntington Town House, Inc., 184 A.D.2d 627 (2nd Dept. 1992), which endorsed a kind of "continuous wrong" doctrine, under which the statute runs from the last use, rather than the first -- the Court decided to reach the merits, which, as noted above, seemed pretty straightforwardly to favor the defendants. All in all, a good result for artists' rights.

Munitz Resignation

The Los Angeles Times reports that Barry Munitz's resignation from the Getty includes his agreement "to resolve 'any continuing disputes' by paying the Getty $250,000 and giving up severance pay and benefits that would have exceeded $1.2 million." The New York Times report by Randy Kennedy and Carol Vogel emphasizes that the investigation by the California attorney general's office continues. Tyler Green has some questions here.

Lawsuit Over Disputed Picasso

The Maine Antique Digest has this report of a lawsuit in New York involving a drawing the authenticity of which was allegedly rejected by Picasso's daughter.

Pollock Authenticity Dispute

The New York Times reports today on an effort to inject some science into the dispute over the authenticity of a recently discovered batch of paintings their owner claims are original Jackson Pollocks.

Banned for Clumsiness

The visitor who recently smashed a set of rare 300-year-old Chinese vases after tripping on his shoelaces at the Fitzwilliam Museum in Cambridge has been told by the director of the museum not to visit again "in the near future." What if he agrees to wear shoelace-less velcro shoes like my seven-year old son?

Patent Trolls

A little off topic, but if you've been wondering how the BlackBerry finds itself on the verge of being put out of business, Columbia Law Professor Tim Wu has a nice explanation at slate.com.

Dutch to return 267 artworks stolen by Nazis

The Telegraph has the story here.

Copyright in an artist's "style"?

The Seattle Post-Intelligencer carries this interesting report of an infringement lawsuit brought by artist Dale Chihuly against two artists, including one who is apparently a former studio assistant. Since at this stage the judge reportedly ordered Chihuly to specify which particular works he's claiming were infringed, it would seem the case really involves the difficult question of the extent to which copyright law protects an artist's style (that is, the claim that the defendants' works look too much like Chihulys as a group rather than this or that particular Chihuly). The leading case is probably the 1987 Southern District case Steinberg v. Columbia Pictures, in which the artist Saul Steinberg successfully sued over a poster the studio had designed to advertise the film Moscow on the Hudson. In that case, the court noted that "style is one ingredient of 'expression'" and seemed to place a great deal of weight on the fact that the poster "was executed in the sketchy, whimsical style that has become one of Steinberg's hallmarks."

Hard to believe . . .

. . . someone would go ahead and publish an entire book about the work of a recently-deceased artist without getting a copyright license from his estate. But according to this report, that seems to have happened here.

More British Art Theft

Speaking of art theft, The Guardian has a story today on what might be Britain's biggest ever.

Army Copyright Dispute (UPDATED)

There's been some discussion of a threatened copyright infringement lawsuit by independent journalist/blogger Michael Yon against the US Army for their distribution of a photograph he took of an Army major cradling a girl killed by terrorists. The Army apparently takes the position that the liability waiver Yon signed before he was allowed entry into the war zone (in which he agreed to "release the [military] of any liability from and hold them harmless for any injuries I may suffer or any equipment that may be damaged as a result of my covering combat") is broad enough to also cover any claims for injury to his intellectual property. David Post, posting at Volokh Conspiracy, comments: "I must say, I've never heard that one before, in 20 years of practicing intellectual property law; but I'm not sure how I feel about it ..." Professor Patry points out that Yon's claim can't be brought in federal district court, but must instead be filed in the Court of Federal Claims and that neither attorney's fees nor injunctive relief would be available, just "reasonable damages." UPDATE: The dispute has been resolved. Yon says "the Army did the right thing."

Met Dispute Resolved

The New York Times reports on a deal to resolve the Met's long-running dispute with the Italian government.

Trademark Dilution Revision Act (UPDATED)

Stockphotographer.info has a post up about the Trademark Dilution Revision Act, which was passed by the House last year and has now gone to by the Judiciary Committee. The post says that "exceptions for fair use, ... commentary, etc. ... could disappear and would be no defense to claims of infringement," but I think that may be something of an overstatement. The bill provides that a fair use defense would still be available upon a showing that the challenged use is not as a designation of product source but is, instead, a descriptive use, or one intended as parody, commentary, or criticism.
UPDATE: This piece in Ars Technica agrees with my take: "Clearly, then, the wild claims made above about eliminating 'fair use... reportage, commentary, etc.' don't hold up when you examine the bill. Fair use of trademarks in several different forms is explicitly allowed, as is all news reporting and commentary that feature such marks."

Scream Trial

A trial date has been set for Feb. 14 in the case of the Munch painting stolen in 2004.

Scrap Metal?

Time raises the possibility that the rising price of scrap metal may be behind the recent string of public art thefts in the U.K. No fewer than 20 bronze sculptures, each weighing half a ton or more (including a 2.5-ton Reclining Figure by Henry Moore valued at more than $5 million), have been stolen there in the last six months.

1978 Case Solved

The Boston Globe has a fascinating story on the resolution, after 28 years, of "the largest unsolved burglary from a private residence in [Massachusetts] history." Turns out a 71-year old retired criminal lawyer had the seven paintings, including a Cezanne, which he claims "were left with him by the lead suspect in a theft" whom the lawyer was representing in another case and was later shot to death "by two men who had come to his Pittsfield home to collect on a debt." One interesting twist, among many, is that in 1999 the lawyer, through a shell company, had actually struck a deal with the former owner under which the Cezanne was returned to him in exchange for title to the other six paintings. (The Cezanne was later auctioned off at Sotheby's for $29.3 million.) The former owner took the (quite reasonable) position that the 1999 contract was coerced and therefore not binding. One lesson here is how hard it is to actually convert stolen art into cash. Another is how valuable it can be to report art thefts to the Art Loss Register, which reportedly blocked two attempts to sell the stolen works here. UPDATE: This Guardian story has more on ALR's role.