The Right to Destroy

Via Will Baude, fascinating article in the Yale Law Journal by Chicago law professor Lior Strahilevitz offering what he calls a "qualified defense" of an owner's right to destroy valuable property -- e.g., artwork. One question he takes up is whether a creator of an artwork should have more leeway to destroy it than someone who acquires it through purchase, inheritance, or gift. One example he mentions is Jasper Johns, who, at the age of 24, decided to destroy all his previous paintings, as a way of "beginning afresh with a blank canvas." The most famous example, which he also discusses, is Franz Kafka, who asked his friend and executor, Max Brod, to burn all of his unpublished writings. (Brod, of course, did not do so.) Suppose the Kafka case were litigated today. Suppose the executor were to approach the probate court for direction. What would the result be? Most courts would strike the direction to destroy on grounds of public policy. Strahilevitz says that's wrong, that we'll get more rather than less great artwork if artists know that their wishes will be respected. In addition to this economic argument, there is also the very strong argument from personal/artistic autonomy: quite simply, as Joseph Sax put it in his 1999 book "Playing Darts with Rembrandt," an "artist should be entitled to decide how the world will remember him or her."

Barnes Money

The Barnes Foundation is getting $25 million from the State of Pennsylvania to help with its move to downtown Philadelphia. Tyler Green takes issue with the statement in this Philadelphia Daily News report that "[r]ecently, the foundation has been hit with financial woes, which cast a shadow over its mission and collections." He points out that "those woes go back a decade or so." Actually, they go back even further than that. When Barnes died in 1951, the Foundation's endowment fund was $10 million (or about $75 million in today's dollars); by the early 1970s it was already down to about $6 million (in part because, under the original trust indenture, the Foundation could only purchase federal, state, and municipal bonds). But Tyler's right that it was in the mid-90s that things really got ugly: by the end of the decade the endowment had fallen to around $1.5 million. The real question this announcement raises, however, is why couldn't the same money have been earmarked towards keeping the Barnes in its original location? I think it was agreed during the court proceeding that, at most, a $50 million endowment fund (combined with a more sensible investment policy) would have been enough to keep the museum going in its current form (which is to say, in accordance with Dr. Barnes's stated intentions). Wouldn't a combination of this sort of fundraising, the sale of non-art assets (e.g., real estate), and possibly even, as a last resort, the deaccessioning of a small part of the collection (the total collection is sometimes said to be worth $20 billion) have been preferable to violating the settlor's intent so drastically by relocating the collection?

Museums

The New York Times had a special section on museum-related issues yesterday. Lots of good stuff, including excerpts from a panel discussion on the antiquities problem with Philippe de Montebello, James Cuno, Kwame Anthony Appiah, and others; the story of some clever litigators trying to seize Iranian assets on loan to several U.S. museums as a way of enforcing a default judgment in a terrorism lawsuit; and, perhaps most importantly, a piece about the evolution of museum restaurants.

Getty Trial Update

The New York Times has an update today.

More on Protection of "Style"

The email from Cheim and Read gallery that Tyler Green mentions here raises once again the interesting question of rights in an artist's style, which I discussed briefly here. (The complete email is here.) Ed Winkelman weighs in here (and lots of interesting responses in the comments).

Guardian on Kinkade

London's Guardian had a piece this weekend on Thomas Kinkade's continuing legal troubles, which I mentioned here and here. Six more suits are pending against him, including "one from a Michigan man who says he lost $3m in assets, along with his marriage and most of his possessions, after the galleries he owned went broke."

A Naked Abuse of Power

Two British police officers have been suspended as part of an inquiry into the sale of surveillance camera images of some of the naked participants in one of photographer Spencer Tunick's projects last summer. The BBC news report on the inquiry is here. The photo shoot was described here. Tunick's website is here.

Not Your Usual Authentication Lawsuit

The Wall Street Journal had a piece late last week (no free link I can find) that dovetails nicely with the New York Times's continuing coverage of the disputed Costco Picassos. Normally you see the fear of litigation working to prevent people from declaring works to be fake (at least not without big fat release/indemnity agreements in place). The Pollock-Krasner Foundation, for example, was once sued for rejecting a painting which had the artist's own name spelled wrong in an inscription on the back. But in the case the Journal discusses (also summarized nicely here), the tables were turned: after the owner of the painting sued over the denial of authenticity, the expert sued him and his lawyers (Gibson Dunn & Crutcher) for malicious prosecution and abuse of process under Montana law -- and got a $21 million verdict ($20 million against Gibson Dunn). Which reminds me of nothing so much as Ambrose Bierce's definition of litigation: a machine which you go into as a pig and come out of as a sausage.

More on the diCorcia deCision

The New York Times has a piece today on the diCorcia lawsuit I posted about last month. The story does a nice job of conveying how unsurprising the result was in light of the relevant precedents.

Fake Picassos, Aisle 6

The New York Times has a story today of a man who spent $40,000 on a Picasso drawing at Costco, complete with a certificate of authenticity signed by Picasso's daughter Maya Widmaier-Picasso -- except she claims the certificate was forged (who authenticates the authentication certificates?). The best part is the buyer, skeptical of Ms. Widmaier-Picasso's recollection, doesn't want to return it. Edward Winkelman thinks Costco ought to insist.

Public Art Diplomacy

Two separate pieces today point up the diplomatic skills it takes for artists to navigate public art commissions. At Carnegie Mellon University in Pittsburgh, the solution involved changing the site for Jonathan Borofsky's "Walking to the Sky" (which was installed in Rockefeller Center a couple years back), but also included a more general decision by the school to "develop a public art policy, create a public art committee that includes students and community members, and propose a series of campus forums to guide the selection and placement of public art." And NPR has the latest on Christo and Jeanne-Claude's next project -- a plan to suspend panels of fabric over sections of the Arkansas River. A group called Rags Over the Arkansas River (or ROAR) has apparently started a petition to block the project. The smart money's on Christo and Jeanne-Claude, however.

More on the Pollock-Everhart Kerfuffle

The strange case of an alleged Pollock stolen from the Everhart Museum of Natural History, Science and Art in Scranton, Pa., which I posted about last month, makes it into the New York Times today. It doesn't get any less odd in their telling.

"The Calder That Wasn't"

The Hartford Courant has this interesting saga of an alleged Calder that was made by his longtime fabricator six years after the artist's death. In 1995, the former president of Microsoft paid nearly $1 million for it, but after the Calder Foundation denied the work's authenticity, he got a refund from the dealer who had sold it to him (Andre Emmerich), who then sued the fabricator. The case was settled with the fabricator taking the work back in exchange for two authentic Calders.

"Franco" Paintings Withdrawn

Three paintings claimed to have been painted by dictator Francisco Franco were withdrawn from auction in Spain after his family's lawyer denied their authenticity. See reports here and here.

Surf Art Suit

The Columbus Dispatch reports that a California surfboard artist has brought an infringement suit against Abercrombie & Fitch. He claims they're using a copy of one of his painted surfboards outside each of 320 separate stores. Abercrombie & Fitch had no comment, so no hint yet what their side of the story will be.

True Trial

The New York Times has the latest today on the Marion True trial in Italy.

"The Artist Ranking"

Artfacts.net has introduced a system for ranking artists using a points-system based on their exhibition history. The system is explained here. The top 3 are (currently) Picasso, Warhol, and Bruce Nauman. And here's a piece about the site from the UK Telegraph. Relatedly, a University of Chicago economist recently "proved" that Picasso was the greatest artist of the 20th century by a similar method: he looked at every art history textbook of the past 15 years and simply counted up the number of reproductions of each artist's works.

Another Rio Art Theft

The second armed robbery from a Rio museum in 10 days. This follows on the heels of reports that one of the works stolen in the first robbery -- Matisse's Luxembourg Gardens -- was put up for sale for $13 million on an online auction site hosted in Russia.

Vinoly Settlement (UPDATED)

The Kimmel Center's lawsuit against star architect Rafael Vinoly has been settled. UPDATE: The Philadelphia Inquirer has more.

More on Kinkade Claims

The LA Times had this piece Sunday on the recent claims by former gallery owners against "Painter of Light" Thomas Kinkade, mentioned earlier here. Bonus allegation this time: drunken heckling of Siegfried & Roy.

End of the Line

The Supreme Court today let stand a 10th Circuit decision ruling that Kansas's Washburn University did not violate anyone's rights in displaying a sculpture that some felt was anti-Catholic. The 10th Circuit had held that, viewed in context, "any reasonable observer... would understand the university had not endorsed [any anti-Catholic] message." The suit was brought by a faculty member and student at the school, and the AP notes that the lawsuit outlasted the exhibition: the sculpture was installed in Sept. 2003 as part of a temporary exhibition ending in July 2004. You can see a photograph of the sculpture, "Holier Than Thou," by Jerry Boyle, here.

"Genuine Fakes"

The New York Times has an interesting story this morning on John Myatt, who served time in a British prison a few years ago for his part in a well-known art forgery scam. (Michael Douglas reportedly has bought the rights to his story.) Beginning in the 1980's he produced more than 200 fake works by the likes of Klee, Chagall, and Giacometti, which were then sold (some for more than $150,000) by an accomplice, who ended up sentenced to six years in prison. He now exhibits and sells what he calls "Genuine Fakes," new works "in the style of famous artists with the words 'Genuine Fake' written in indelible ink on the back." (He has his own website here.) At a recent exhibition of his work in London, "he sold everything he displayed -- 68 fake Miros, Picassos, Giacomettis and the like -- at prices from $875 to more than $8,000." I should think he's eliminated any risk of a fraud or misattribution claim, but I'm not so sure he doesn't also have to worry about copyright. Many of the works he's copying are in the public domain, but others (e.g., Picasso, Warhol) are not.

Peru v. Yale

The AP has this report on the next cultural property battle.

CSM on ALR

The Christian Science Monitor has a good story on the invaluable Art Loss Register.

It's Getting Dangerous Out There

At the Detroit Institute of Arts last week, a 12-year-old boy on a school trip stuck a piece of chewed gum on a 1963 Helen Frankenthaler painting. Meanwhile, some slightly older guests "threw up, passed out, were injured, got into altercations and climbed onto sculptures" at an event held a few weeks ago at the Milwaukee Art Museum.