Thursday, November 30, 2006

Getting There (UPDATED)

"The campaign to raise $68 million and retain Thomas Eakins' monumental painting The Gross Clinic in Philadelphia has reached about one-third of its goal," reports Stephan Salisbury in today's Philadelphia Inquirer. Carol Vogel puts the figure at $23 million.

Salisbury also reports that Pennsylvania Governor Ed Rendell plans to contact the buyers to discuss a possible extension of the Dec. 26 deadline to match the offer.

UPDATE: At his Illicit Cultural Property Blog, Derek Fincham posts about the city's move to designate the painting as historic:

"This is an interesting turn of events, and is the only example I'm aware of a city preventing the export of a work of art. Many nations attempt to prevent the export of works of art, but I am aware of no individual cities preventing the removal of an important work. The US is among the few nations in the world which has no export restrictions on works, due in part to its status as the largest art importer in the World. It's quite interesting to see an individual city make make similar claims to that of source nations such as Peru, Mexico or Egypt. The potential litigation in this case should be very interesting to watch unfold, if the trustees are unable to reach a satisfactory resolution with the city."

That's quite right, though as I mentioned in an earlier post, this is not the first time Philadelphia has done this. The same process was used to kill the sale of the Maxfield Parrish/Louis Comfort Tiffany mural Dream Garden to Steve Wynn in 1998.

Arrest in Public Art Tragedy

The artist who created the inflatable artwork that killed two women this summer has been arrested on manslaughter charges. The Guardian has the story here. The Independent has more here. Earlier post on the accident here.

Wednesday, November 29, 2006

Gross Clinic Must Stay Put (For Now At Least)

I wondered earlier this week whether the Philadelphia authorities would get a notice letter out to Jefferson University informing them that The Gross Clinic was being considered for designation as a historic object, thereby preventing it from being shipped out of town.

It looks like it had already happened.

Stephan Salisbury reports in the Philadelphia Inquirer today that

"a letter from Jonathan Farnham, the city's acting historic preservation officer, formally notifying Jefferson and the museums of the [commencement of the designation process] was mailed Nov. 20. From that date forward, the letter states, 'you are notified that no one may remove or alter The Gross Clinic, which is the object under consideration, without first seeking a permit from the Department of Licenses and Inspections.'"

A hearing by the Historical Commission's "designation panel" has been scheduled for Dec. 20. That panel will then make a recommendation to the full Commission, which has scheduled a "special session" the next day.

I assume it's a foregone conclusion that the painting will be designated as historic. I'd be curious to know whether the purchase agreement allows the buyers to back out of the deal in these circumstances. Who's going to be the plaintiff in the takings lawsuit against the city?

Tuesday, November 28, 2006

Not the only one

The Tennessean reminds us today that Jefferson University is not the only school facing difficult deaccessioning choices:

"[T]he financially strapped [Fisk University] has found itself in the middle of a controversy raging over its intent to sell two paintings from its Alfred Stieglitz Collection of Modern Art: Marsden Hartley's 'Painting No. 3' and Georgia O'Keeffe's 'Radiator Building — Night, New York.' Awaiting a February court date that will determine whether it has the legal right to sell the paintings, Fisk faces a dilemma. Will it be forced to hold onto these paintings, or will it stand to make millions while letting go of two hugely important masterworks, bequeathed to the school in 1949 by none other than O'Keeffe herself?"

Earlier Fisk posts here, here, and here.

Fake Art Show

The BBC reports:

"Experts from the art world are attending a police exhibition of fake and forged art works as part of moves to fight a crime believed to be becoming increasingly prolific. Amid the sea of historic artefacts, sculptures and magnificent paintings at London's beautiful Victoria and Albert Museum, one small room contains some duds from the art market. Many pieces in the Metropolitan Police's first exhibition of fake art work have fooled art experts and institutions. If genuine, the work in the display would be worth around £10m. Hoping to raise awareness of a crime they say is increasing and becoming more sophisticated, police have invited industry experts to their Investigation of Fakes and Forgeries show."

They may open it up to the public next year. Full story here.

Monday, November 27, 2006

30 Days

Not much news on the proposed Eakins sale since last week. Philadelphia institutions have until Dec. 26 to match the $68 million offer. Philadelphia Inquirer art critic Edward Sozanski had his say in yesterday's paper (the headline: "What Were They Thinking?").

Though I claim no expertise in Pennsylvania law, I did want to offer some preliminary thoughts on the steps taken by the city last week to have the painting designated as a historic object. It's not clear to me whether or not there's still time to block the sale under this process. The basic procedural structure is the following. When the Historical Commission considers designating an object, the Philadelphia Code requires it to give at least thirty days notice to the owner of the property proposed for designation. Then, at a mandated public meeting, "any interested party may present testimony or documentary evidence regarding the proposed designation." If the Commission decides to designate an object, it "shall send written notice of the designation ... to the owners." An owner may not "alter or demolish an historic ... object" "unless a permit is first obtained from the Department of [Licenses and Inspections]."

That much seems clear. What isn't clear is when the restrictions on moving the object kick in. As I read the statute, it's not until after designation -- in which case it would be too late. Unless it went out today, the 30-day notice period alone is enough to take us past the Dec. 26 deadline. On Dec. 27, the university could pack up the work and ship it off to Washington (whether it would have the political will to do so, in the face of such intense opposition, is another matter). [Update: I see now this is probably incorrect. Since the statute defines "demoliton" to include a moving of the work, it could not be shipped out while the designation proceedings are ongoing. See note below.] On the other hand, the Commonwealth Court's Dream Garden decision (discussed further below) suggests that the 30-day notice itself "invokes the Commission's jurisdiction over the properties being considered for designation and states that owners subject to the Commission's jurisdiction may not remove, demolish or alter the property without applying for a permit" (see footnote 3). That's Stephan Salisbury's take in the Inquirer as well: "[The Commission] must provide the owner of the property 30 days' notice before any hearing on the matter takes place. (Once that notice went out, the painting could not be moved while the matter was under consideration.)" (emphasis added). This reading seems to rest on Section 14-2007(7)(l) of the Code -- but that section merely says "The Department shall not issue any permit for the demolition, alteration or construction of any ... object which is being considered by the Commission for designation as historic where the permit application is filed on or after the date that notices of proposed designation have been mailed." But what permit is required to ship this painting to the buyer in the first place? [Update: It's been pointed out to me, correctly I think, that it's Section 14-2007(7)(a) that would require a permit here -- for "demolish[ing]" (i.e., moving) the painting.] If this reading is correct, however, then, at least in theory, the Commission could rush out a notice before the Dec. 26 deadline, putting the sale on hold until the designation process gets sorted out.

Finally, a word about the Dream Garden case. As Stephan Salisbury reported last week, "use of the preservation ordinance to protect artworks is unusual, but there are significant precedents. In the case of Dream Garden, a collaboration of Maxfield Parrish and Louis C. Tiffany whose sale ignited considerable public controversy, the Historical Commission acted after receiving a nomination request from then-Mayor Ed Rendell. Owners of the mural fought the designation, and a three-year legal battle ensued. That fight finally ended, without any court decision, when the Pew Charitable Trusts acquired the mosaic for $3.5 million and gave it over to the care of the Pennsylvania Academy of the Fine Arts." For more background on Dream Garden, see here.

It's true there was no court decision on the merits -- but, as I mentioned above, there was a decision by the Commonwealth Court, on the narrow question whether the Historical Commission's "designation of the Dream Garden as an historic object is a final adjudication and thus appealable under Local Agency Law" (it held that it was). In the course of that narrow decision, the court made it very clear that the designation raised serious "regulatory taking" issues. In discussing the harm to the owner, it said:

"First, the proposed sale of the Dream Garden for nine million dollars collapsed due to the threat of historic designation. Currently, the [owner] is prevented from moving or altering the work of art from its present location forestalling any chance of any future sale. Unlike the designation of a building or a structure, which can be adapted for other uses, the historical designation of Dream Garden precludes any right of private ownership of the work or art. The [owner] has no viable economic use of its property, following designation. .... We conclude that this hardship to the [owner] establishes this challenge ... is ripe for judicial review."

New Massachusetts Consignment Statute

Aaron Silverstein has a nice post up summarizing the re-worked Massachusetts consignment law, which goes into effect in February. The text of the new statute is here.

New York's (quite similar) version is here.

"The Growing Problem of Fakes and Forgeries in American Art"

That's the title of an IFAR-sponsored talk to be given by Ted Stebbins, the Fogg Art Museum's curator of American art, at the Dahesh Museum of Art in New York this Thursday evening. Details here.

Art & Fashion (UPDATED)

Tyler Green doesn't think much of the new Fashion Show at the Museum of Fine Arts in Boston. The New York Times had a more sympathetic account a couple of weeks ago ("for those who are tabulating the cultural value of elevating the fashion industry's most effective marketing tool -- the runway -- into a subject for serious discourse in an institution of fine arts, 'Fashion Show' provides as much unexpected substance as it does eye candy"). But there's been a lot of discussion of fashion among intellectual property scholars lately as well. Eugene Volokh points to a paper by Kal Raustiala and Chris Sprigman entitled The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, which they summarize as follows:

"The Piracy Paradox is about the challenge that the fashion industry presents to the orthodox theories of IP. Advocates for strong IP rights argue that absent such rights copyists will free-ride on the efforts of creators and stifle innovation. Yet fashion presents a significant empirical anomaly: the industry produces a huge variety of creative goods without strong IP protection in one of its biggest markets (the United States), and without apparent utilization of nominally strong IP rights in another large market (the countries of the European Union). Copying and derivative re-working are rampant in both the U.S. and E.U., as the orthodox account would predict. Yet innovation and investment remain vibrant.

"Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected --and economically successful? The fashion industry is a puzzle for orthodox IP theory. Our paper explores this puzzle."

The University of Chicago Law School Faculty Blog recently hosted a group blog session on the paper here. Tyler Cowen discussed this issue here, pointing also to this 1997 law review article and this IP-related fashion blog by Susan Scafidi, author of Who Owns Culture?: Appropriation And Authenticity In American Law.

UPDATE: In this week's New Yorker, Judith Thurman reviews another fashion-related show, this one at the Los Angeles Museum of Contemporary Art: "'Skin + Bones: Parallel Practices in Fashion and Architecture' is the first exhibition of its scale and kind—more than three hundred contemporary works by forty-six mostly avant-garde architects and designers, chosen to represent what Brooke Hodge, MOCA’s curator of architecture and design, calls the 'increasingly fruitful dialogue' between the two disciplines."

CAPC Indecency Charge

From The New York Times this weekend:

"A group of museum directors and curators signed a petition in London [Friday] protesting the indecency charges against Henry-Claude Cousseau, director of the École Nationale Supérieure des Beaux-Arts in Paris. Mr. Cousseau is under investigation for an exhibition, 'Presumed Innocent: Contemporary Art and Childhood,' at the Centre d’Arts Plastiques Contemporain in Bordeaux six years ago, when he was the director there. That show, with works by Mike Kelley, Cindy Sherman, Tony Oursler, Annette Messager, Nan Goldin and others, drew complaints from La Mouette, a child protection group, and Mr. Cousseau, along with two curators, faces charges in connection with exhibiting 'works of a violent pornographic nature, unacceptable for a young public.' If convicted, he could receive a fine and up to three years in prison, according to a statement released on behalf of the signers of the petition, who include Nicholas Serota, director of the Tate Gallery; Alfred Pacquement, director of the Centre Georges Pompidou; Robert Storr, dean of the Yale School of Art; Ralph Rugoff, director of the Hayward Gallery in London; Claire Hsu, executive director of the Asia Art Archive in Hong Kong; and 12 others."

More here from Artforum (second item).

Wednesday, November 22, 2006

"We should be encouraging donations of artwork, not discouraging them" has an excellent piece up about the change in the fractional gift laws -- "Will Democrats Ride To Museums' Rescue?" It's the first news article I can recall seeing that properly conveys the importance of what I've been referring to as the "mismatch" problem:

"An even bigger hit is that the new law locks the artwork's value (for deduction purposes) in at the time of the initial fractional gift. This creates the crazy situation--presumably unintended by Congress--where a collector or his estate could owe gift or estate taxes on a charitable gift. The current market value of the part of the art that hasn't yet been donated is included in the estate. But the estate's charitable deduction for the remainder of the art gift is based on the lower value at the time the fractional gift began. As a result, fractional donations have come to a halt. Even donors who had started giving a work before Aug. 18 [the effective date of the new law] aren't giving additional percentages, for fear that will subject their estates to this extra gotcha tax."

The story notes that a number of museums have written letters to the Senate Finance Committee asking for changes, "[b]ut their best chance for relief is in the next Congress, when New York’s senior senator, Democrat Charles Schumer, should have lots of influence":

"[T]he museums have a friend in Schumer, a Finance Committee member who was just elected the third-ranking member of the Democratic leadership. Last week, Schumer and Sen. Gordon H. Smith, R-Ore., wrote a letter to [outgoing Senate Finance Chairman Charles] Grassley and incoming Senate Finance Committee Chairman Max Baucus, D-Mont., offering to help 'find a middle-ground solution to the fractional gifts issue' in the next Congress."

Back next week. Happy Thanksgiving to all.

Monday, November 20, 2006

"Historic Object"

I don't have time to comment, but did want to call attention to this story in today's Philadelphia Inquirer noting that "Mayor Street has nominated Thomas Eakins' masterpiece, The Gross Clinic, for protection under the city's historic preservation ordinance .... Designation as a 'historic object,' a rarely used category of the preservation code, would prevent the painting from being altered or moved without the express approval of the Philadelphia Historical Commission."

Goya Found (UPDATED)

In New Jersey.

"The artwork appears to be unharmed, said Les Wiser, special agent in charge of the Newark FBI office. The FBI said extensive media coverage of the theft led to tips that enabled the agency to recover the painting. But the agency did not reveal when, where or how the painting was recovered, citing an ongoing investigation."

Story here.

UPDATE: The New York Times has more. Looks like David Nishimura was on the money:

"Contrary to earlier law enforcement theories that the theft was carried out by insiders, they did say it appeared that the thieves probably had no idea what kind of art-historical loot they had stumbled upon when they broke into the truck overnight in a parking lot at a Howard Johnson Inn near Bartonsville, Pa. 'This time of year, close to Christmas, they probably thought they’d found a truck filled with PlayStations and broke in and started looking for the biggest-looking box,' said Steve Siegel, an F.B.I. agent who serves as the spokesman for the bureau’s Newark office. 'Basically, it’s a target-of-opportunity typical New Jersey cargo theft. There are literally predators — for lack of a better word — who when they see a tractor-trailer or a cargo vehicle parked for any length of time start snooping around.'”

IP and the Market for African Art

American U. law professor Christine Farley posts from a conference in Namibia on "IP Used in Support of Culture Based Industries":

"The main question being addressed is whether IP (especially copyright & trademark) can help improve the markets for African art. The problem is that although the US is the major market for African art, US consumers are not willing to pay enough for the art in order to support the communities that create it. Beautiful, hand-crafted pieces made of indigenous materials using ancient techniques are sold at bargain prices that reflect tiny sums paid to the artisans that created them. We buy these pieces at places like World Market because they look nice, but we learn nothing about their origin and significance. If that's all we value why not buy even cheaper versions made in China? These artisans are hopeful that they can stop that type of competition by asserting IP rights in the art."

See also the spirited discussion with UT-Austin law professor Kate Litvak in the comments.

Sunday, November 19, 2006

No Progress

A week after the theft of a Goya painting on its way to the Guggenheim comes a reminder that these kinds of cases are not so easy to crack. The Scranton Times-Tribune reports today:

"A year after the Everhart Museum was broken into — under the cover of night and a huge tent erected for the museum’s annual ball — the FBI and local police are still no closer to solving the theft of two valuable pieces of art than they were after it happened. 'It’s still an open and active investigation,' FBI spokeswoman Jerria Williams said, after conceding that leads in the case have long dried."

Full story here. Earlier posts on this here, here, and here.

Saturday, November 18, 2006

An inside job?

From today's New York Times:

"Federal investigators have concluded that thieves armed with detailed shipping information were behind the removal of a Goya painting from a truck en route to the Solomon R. Guggenheim Museum from Ohio last week, law enforcement officials said Friday. The 1778 painting ... was packed inside several nested crates aboard a locked unmarked truck used by a professional art transporter. The crated painting was removed from an outer shipping container in the truck while it was parked at a Howard Johnson Inn near Bartonsville, Pa. The two drivers checked into the hotel around 11 p.m. on Nov. 7, according to the motel manager .... He said the white midsize truck was left in an unlighted parking lot adjacent to the hotel, out of sight of the hotel’s rooms and the main office. When the drivers returned to the truck at about 6:30 a.m. on Nov. 8, the locks had been broken and the painting, insured for $1 million, was gone, law enforcement officials said."

Full story here. David Nishimura says: "personally, I'm more inclined to believe it a case of sloppiness and stupidity (in abundant supply) taken advantage of by opportunistic predators (also, alas, in abundant supply)."

Eakins News (UPDATED)

Stephan Salisbury reports in the Philadelphia Inquirer today that "a coalition of cultural institutions, foundations, city officials and individuals - led by the Philadelphia Museum of Art and the Pennsylvania Academy of the Fine Arts - has been formed in an effort to keep Thomas Eakins' masterpiece, The Gross Clinic, in the city." For background, see my earlier post here.

Anne d'Harnoncourt, director of the Art Museum, is quoted as saying "I think we're rolling here. There have been some wonderful offers of support, large and small."

Full press release here.

Organizers have also established a fund for donations and a hotline for those seeking information. Donations may be made here or checks payable to the "Fund for Eakins' Masterpiece" may be sent to Fund for Eakins' Masterpiece, c/o the Philadelphia Museum of Art, Box 7646, Philadelphia, Pa. 19101-7646. The hotline number is 215-684-7762.

There will also be a rally tomorrow between 10 am and 11 am in front of Jefferson's Alumni Hall. Philadelphia artblog asks: "Has there ever before been a rally in favor of a work of art?"

UPDATE: Post-rally report (with pictures) here. More here.

Friday, November 17, 2006

Barnes Bill (UPDATED)

I mentioned last month that Pennsylvania Congressman Jim Gerlach, who at the time was in the middle of a close re-election contest, had announced plans to introduce a bill that, if enacted, would keep the Barnes Foundation from moving. Well, he won (by 3,000 votes), and he's kept his promise. Christopher Knight has a brief story in the LA Times today. The Main Line Times has a bit more. Gerlach's press release is here.

UPDATE: The New York Times has a brief piece on this today (last item, scroll down).

Thursday, November 16, 2006

Fractional Gift Letters (UPDATED)

Bloomberg reports that the Whitney and other arts institutions have written letters urging Congress to reconsider the recent changes to the laws governing fractional gifts to museums.

Senator Charles Grassley, who chairs the Senate Finance Committee (until January, when he will be replaced by Democrat Max Baucus of Montana), said in a statement today that he will consider "legitimate technical points raised by the museums. But I'm not interested in unwinding the reasonable, modest reforms on fractional art donations. ... Even with the new reforms, taxpayers will still be able to make fractional art donations and claim a tax break for them. They'll just have to turn over the painting to a museum within a reasonable amount of time.''

My most recent post on the new law is here.

UPDATE: Eric Gibson, editor of the Wall Street Journal's "Leisure & Arts" page, has a piece on the new law today. He also talks about museum deaccessioning, which, he says, "used to be the tool of last resort for acquiring new art" but lately has "become the tool of first resort, with museums strip-mining their collections just to build a war chest." Lee Rosenbaum comments here.

Wednesday, November 15, 2006

On the Radio (UPDATED 2X)

I was on NPR's WHYY in Philadelphia this morning discussing the controversy surrounding Thomas Jefferson University's pending $68 million sale of Eakins's iconic "The Gross Clinic." You can listen to the show here.

As I mentioned on the show, one of the things I find most interesting about the controversy is that, when a similar thing happened last year with the New York Public Library's sale of Durand's "Kindred Spirits," Michael Kimmelman wrote a piece in The New York Times that got a lot of attention, and which included the following discussion of the question "what to do next time":

"[H]ere's a modest proposal. ... [W]henever art is sold by a public institution -- which, receiving tax breaks, can be expected to make some sacrifice toward the public good -- local museums should be given a reasonable period of time to match the sale price. That's it. Just a shot at preserving the public's heritage for the public."

Well, that's exactly what's happened here (local art museums and governmental institutions have 45 days to match the offer), and the university is still coming in for the same kind of criticism.

Here is the latest from the Philadelphia Inquirer (the writer, Stephan Salisbury, was also a guest on the show). Here is the paper's art critic, Edward Sozanki; he says it must be included on "any list of the top 10 American paintings." Here is an excellent piece by Carol Vogel from The New York Times last week, which also contrasts this sale to the way the "Kindred Spirits" sale was handled. The latter story also mentions that in a 2002 review of an Eakins show at the Met, Michael Kimmelman called "Gross Clinic" “hands down, the finest 19th-century American painting.”

UPDATE: One question the host asked that I didn't have a good answer for is "Why is the art market so hot right now?" happens to have an interview up with a real expert in this area -- PaceWildenstein's Arne Glimcher -- which includes that very question:

"[Bloomberg]: What's driving the demand for art?
"Glimcher: The amount of money in the marketplace and the incredible discretionary income. Money has very little meaning to certain people anymore who are making hundreds of millions dollars a year. It doesn't matter if they are paying $80 million for a Pollock. It does not alter their lifestyle at all. It's just, 'I want it and what does it take to get it?'
That's why the auction market is a little bit crazy. We'll have a show of 10 works by an artist, and they'll all sell. And then other people want them, can't get them. One comes up on the open market, and they'll pay twice what they were in the gallery."

UPDATE 2: WHYY has started a blog, called The Sixth Square, devoted exclusively to the pending sale. Lots more at their dedicated Eakins page.

Grosz MoMA Dispute (UPDATED)

Robin Pogrebin has an interesting story in today's New York Times about an ownership dispute between George Grosz's estate and MoMA over two Grosz paintings in the museum's collection. “As these Grosz works would not have been lost if [German Jewish art dealer Alfred] Flechtheim and Grosz had not had to flee Germany in order to save their lives, the George Grosz Estate claims restitution,” the estate's representative wrote in a 2003 letter to the museum. Earlier this year, as negotiations dragged on, the museum asked Nicholas Katzenbach, a former attorney general and undersecretary of state in the Johnson administration, to investigate the claim. He recommended that it be rejected:

"Mr. Katzenbach noted that when Grosz saw [one of the two paintings] at the museum [in the 1950s], he did not ask that it be returned or that he be compensated. Had he done so, the report added, 'not only would the museum have had the opportunity to ascertain the facts when they were still reasonably fresh and knowable, but it would have had the opportunity to resolve the matter then and there at relatively little cost to it.'"

The estate says it will decide by the end of the month whether to file a lawsuit.

You can see the two works here and here.

The story adds: "This is not the first time Grosz works have been the subject of controversy. The Grosz estate filed a lawsuit in 1995 against the Manhattan art dealer Serge Sabarsky, arguing that Mr. Sabarsky had deprived the estate of appropriate compensation for the sale of hundreds of Grosz works he had acquired. The lawsuit was settled last summer." I discussed that earlier lawsuit here.

UPDATE: Derek Fincham weighs in here.

Who the #$&%

The reviews are in for the documentary "Who the #$&% is Jackson Pollock?," mentioned earlier here. Stephen Holden in The New York Times calls it "entertaining." Art critic Daniel Kunitz, writing in The New York Sun, was less amused: "Far from being a documentary, the film is rather an exercise in deception, a vehicle greased by antiintellectualism."

Renoir Verdict

The verdict is in in that Renoir copyright infringement lawsuit I mentioned a few weeks ago. The Arizona Republic has the story here. Damages were awarded against the gallery in the amount of $5,000 for each of the 10 infringed sculptures, for a total of $50,000. Damages against Jean-Emmanuel Renoir (Renoir's great-grandson) were set at $7,500 per infringement, for a total of $75,000. The story adds that "in a related action, the court ordered the [plaintiff] to pay Jean-Emmanuel $120,000 for false advertising of an exhibit that took place in 2005," so it seems the total net to the plaintiff may have been just $5,000. In any event, the defendants seem happy: "'The plaintiff had asked the jury to award them a total of $1.5 million dollars, and the jury just awarded them $50,000. We see that as a victory,' said Phil Flemming, the attorney for [defendant gallery] Rima Fine Art." Expect appeals.

Tuesday, November 14, 2006

Stolen Goya

The New York Sun has a front page story this morning on a Goya painting stolen on its way to the Guggenheim in New York last week:

"The painting, 'Children With a Cart' (1778), disappeared as it was being transported through Scranton, Pa., from the Toledo Museum of Art by a professional art transport company, museum officials said. It was scheduled to hang in the 'Spanish Painting From El Greco to Picasso: Time, Truth, and History' exhibition at the Solomon R. Guggenheim museum starting November 17. The painting was insured for $1 million, and the insurance company has put up a $50,000 reward for information leading to the recovery of the painting. ... A spokeswoman for the [FBI] said the details of how the painting was stolen, and when, wouldn't be released until later this week."

Derek Fincham at the Illicit Cultural Property Blog asks:

"Why was this work stolen? Surely, the market for the work is quite small, as nobody will be able to claim good faith in buying or selling the work. The thieves may be attempting to ransom the work back to the museum. Criminal penalties are far lower for kidnapping a work of art than they would be for, say, kidnapping a person. The other possibility is that a wealthy collector may have requested it stolen for her own private collection."

The New York Times story is here. Here is an image of the painting.

Monday, November 13, 2006

Roll Tide

Adam Liptak had a front page story in yesterday's New York Times about a trademark lawsuit brought by the University of Alabama against artist Daniel Moore, who does paintings of Alabama football scenes which sell for as much as $65,000. The university is seeking to prevent him from, among other things, using its “famous crimson and white color scheme.”

The story does a nice job of laying out the relevant caselaw:

"At one end of the legal spectrum, a federal judge in Louisiana had no difficulty in July in enjoining a company that sold shirts bearing the school colors and initials of four football powerhouses. At the other, the federal appeals court in Cincinnati in 2003 rejected an effort by the golfer Tiger Woods to stop an artist named Rick Rush from using Mr. Woods’s image in a painting commemorating his victory at the 1997 Masters in Augusta, Ga. ... In the middle of the spectrum is a 2001 decision of the California Supreme Court. It expressed great solicitude for the rights of artists under the First Amendment. But it ruled against an artist who had created a simple charcoal drawing of the Three Stooges and sold it on T-shirts."

The Tiger Woods decision is here. The Three Stooges decision is here. You can see examples of Moore's work here and you can listen to him being interviewed about the case on NPR here. Alabama dropped to 6-5 on the season with a 28-14 loss to LSU on Saturday.

Clemson University economics professor Skip Sauer says "attempting to convert this painter's contribution into a revenue stream is a churlish (he can't use 'the famous crimson and white color scheme'???) and short-sighted move by the university's lawyers, regardless of where the case sits on the edge of trademark law."

I make Moore a two-touchdown favorite to win.

Saturday, November 11, 2006


I've been waiting for the opportunity to work Borat into this blog, and here it is:

"Two college students featured in the hit film 'Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan' are not laughing about their screen appearance, in which they make racist and misogynistic comments to Borat, the boorish fictional Kazakh journalist played by Sacha Baron Cohen. A lawsuit filed on their behalf in Los Angeles Superior Court on Thursday states that the young men were plied with liquor by the production crew before their scene and thus 'engaged in behavior that they otherwise would not have engaged in,' The Associated Press reported. The students — who in their suit described Mr. Baron Cohen as 'a prankster' — also say they were told they were participating in a documentary that would be shown only outside the United States. The plaintiffs were not named but were identified in the film as fraternity members at a South Carolina university, and they appeared drunk as they made insulting comments about women and minorities. The suit seeks an injunction to stop the studio from displaying their likenesses, along with unspecified monetary damages."

High five! The complaint is here. Borat's release form is here. Law prof Gordon Smith wondered about exactly this possibility a few days ago: "One obvious problem with the release jumps off the page: One America Productions is fictional! ... The release has a merger clause, but I am wondering about a fraud claim." So did Nate Oman (scroll down to comments): "It seems that there is at least the possibility of fraud, as he obtained their consent by lying to them. ... [T]he set up does strike me as fundamentally deceptive, especially in light of the legal claims that the parties are signing away in the contract, which was presented to them under false pretenses." Another law professor, Miriam Cherry, responding to Oman in comments, doesn't think there's much to the suit: "What's the plaintiff's claim? You taped me saying stupid things and making racist comments? These folks knew they were being filmed, and they signed releases. ... They knew that they were being interviewed and that it would be public (i.e. broadcast)."

Jeremy Telman at the ContractsProf Blog says "[s]ome have suggested that the complaint might be yet another prank by the irrepressible Mr. Cohen. But if that were so, why wasn't the case styled I.P. Freely & I. Tappa Keg v. Borat?" Very nice, Profess Telmer!

Friday, November 10, 2006

Did he or didn't he? (UPDATED)

Last week the New York Times reported that David Geffen had sold a Jackson Pollock painting to David Martinez for a record $140 million. Kate Taylor reports in today's New York Sun that Martinez says it isn't true. Earlier this week, he told Josh Baer, of the Baer Faxt: "I did not buy the Jackson Pollock painting." Now his lawyers (Shearman and Sterling) have issued a statement that "contrary to recent articles in the press identifying him as the buyer of a painting by Jackson Pollock, ... neither Mr. Martinez nor any related party of Mr. Martinez owns the painting or has any right to acquire the painting from David Geffen or any other party who has acquired it or may acquire it in the future."

UPDATE: The Times weighs in (third item) on this this morning and says the episode reinforces "the art world’s reputation for cloak-and-dagger secrecy."

Thursday, November 09, 2006

All The Art News That's Fit to Print

Lots of art law in today's New York Times:
  • Its story on the Picasso withdrawn from last night's auction at Christie's.
  • Carol Vogel's report on that auction (the biggest in history, totaling $491 million). In addition to what she calls "the stars of the evening" -- the four Klimts which were recently returned after arbitration to the Bloch-Bauer heirs (along with the Portrait of Adele that sold for $135 million earlier this year to the Neue Galerie) -- the sale also included Ernst Ludwig Kirchner’s “Street Scene, Berlin,” which "found its way to Christie’s only three months after the German government returned it to the heirs of Alfred and Thekla Hess, Jewish collectors in Erfurt, Germany" and which sold for $38 million, also to the Neue Galerie.
  • The latest on the underpayment of capital gains taxes on the Childe Hassam painting that was at the center of the recently settled Brooke Astor guardianship case.
  • A story on retired truck driver Teri Horton, the subject of the upcoming documentary "Who the #$&% Is Jackson Pollock?," mentioned earlier here. There's a good image of the painting she bought for $5 in a thrift shop in the early 1990s with the Times story.
  • The latest on Italy and the Getty.
  • A report on "an on-and-off restitution battle lasting six decades" which ended with Austria agreeing yesterday to return Munch's “Summer Night on the Beach” to Marina Mahler, the granddaughter of the composer Gustav Mahler and his wife, who originally owned it.

Wednesday, November 08, 2006

Christie's Picasso Sale Can (But Won't) Proceed (UPDATED 2X)

The New York Times this morning reports that Southern District Judge Jed Rakoff refused yesterday to block Christie’s from auctioning a Picasso painting that a German banker’s heir says was sold under duress in Nazi Germany. The suit was dismissed on jurisdictional grounds, with the judge saying that the plaintiff could re-file the case in State Court, which his lawyer said he plans to do today. Christie's says the sale will go forward anyway. [N.B.: The picture has been withdrawn from sale. See second update below.]

The Times story includes a great quote from Judge Rakoff:

"I know that no one in the art world is just interested in money or in buying and selling paintings for profit. They’re guided by their belief in truth and beauty. But nevertheless, one might suspect that this is just a fight about money."

Christie’s has given a pre-sale estimate of $40 million to $60 million to the painting, variously called “The Absinthe Drinker” or “Portrait of Angel Fernández de Soto,” which can be seen here. Daniel Freedman at his New York Sun blog asks, "Will the painting be sold for less than its estimated value? Anyone who buys it must calculate the possibility of having a judge rule that it must be returned." Or at least must factor in the legal costs of defending against the claim.

The New York Law Journal [$] has more.

UPDATE: The Art Newspaper is reporting that Christie's "look[s] set to withdraw the painting from auction."

UPDATE 2X: The painting has been withdrawn from the sale:

"'Despite the favorable ruling of the federal court dismissing their claims there, we have been informed by the litigant's attorneys that they intend to file another suit in state court,' said the statement [by Marc Porter of Christie's]. 'A cloud of doubt has been recklessly placed on the `Portrait de Angel de Soto' by the litigant and his attorneys on the very eve of this long-scheduled and highly publicized sale,' said the statement by [Porter]. He said Christie's reserved the right to seek damages for the harm 'caused this picture, the charity that rightfully owns it and Christie's.'"

Lee Rosenbaum says it's "the prudent, if painful, thing." She also reports that the plaintiff "had sought to reach a monetary settlement of the case with [the seller]," but the seller's lawyer says his client "flatly refused" to enter into such discussions.

Derek Fincham of the Illicit Cultural Property Blog doesn't think much of the underlying claim:

"The claims seem tenuous to me at first blush. The plaintiff, Mr. Schoeps, is the heir of Paul von Mendelssohn-Barthold, a wealthy Berlin banker and art collector. He was forced to sell all his paintings as a result of Nazi persecution. The Nazi's didn't actually take the painting, but they seized his assets so that he had no choice but to sell the work. ... I'll try to get my hands on the dismissal and look at the substance of the claims. To me, though, it seems like the claimant will have a very difficult time winning the case."

Certainly, the plaintiff's 70-year delay in pressing his claim is going to be difficult to overcome.

Tuesday, November 07, 2006

More on the Koons Victory

Law professor Christine Farley has a take similar to mine on Jeff Koons's recent win in the Second Circuit: "As I read the opinion," she says, "I kept wondering why earlier Koons courts could not have taken the same approach."

What was different this time? According to Farley:

"1) Here the plaintiff's photograph is an advertisement. While this should make no difference and while other successful plaintiffs have certainly made commercial use of their copyrighted works, I suggest this difference matters to the court. ... 2) The court 'gets' Koons' work. In the 1st Koons case, Judge Haight's lack of esteem for the artist pervades the opinion. (For instance, he remarks how Koons' 1st career was as a commodities trader & how he hires other artists to make his work.) ... Here, the 2d Circuit paints a different portrait of the artist and weaves his testimony into a coherent story of how fair use law enables just this kind of creativity by granting to artists access to 'raw materials' such as Blanch's photography."

The second point is an excellent one, but I think she may be mistaken about the first. The Second Circuit's opinion says the photograph was published by Allure magazine "as part of a six-page feature on metallic cosmetics entitled 'Gilt Trip'" (my emphasis). Koons did testify that certain features of the photograph "represented for me a particular type of woman frequently presented in advertising," but, unless I'm mistaken, this photo itself was not strictly speaking an advertisement.

Monday, November 06, 2006


An interesting copyright dispute going on in Hawaii. Artist Kim Taylor Reece has sued a local gallery (but apparently not the artist who created the work at issue) over a stained-glass artwork that he claims infringes one of his photographs. You can see both the glass piece and the photograph at this link to a Honolulu Star Bulletin story on the dispute.

Just from looking at the pictures, it does appear that the main similarity between the two works is the model's pose, but, as a member of a Hawaiian cultural group that is supporting the glass artist correctly says, "these are movements that we've done for 2,000 years that have been passed down from generation to generation. He cannot own this position. What he owns is his photograph of that particular model."

The photographer counters that "I'm not saying I own the pose. What I'm saying is that she copied my image" -- and argues that

"both dancers have their left arms in the same position, with the left hand on the same place of the face. Both have their right arms pointing up and with kupee (bracelets) of identical thickness, position and makeup on both. Both images are shown at the same angle, with the viewer looking up, with the dancers in the same posture. In both, the dancer's legs are together. The windblown hair on the dancers is very similar."

The natural question is how much of that flows from the pose, which both sides agree cannot be protected. Wouldn't the fact that "both have their right arms pointing up" be a function of the pose? Similarly the fact that "the dancer's legs are together"? My guess (again, based on this one newspaper article) is that, once you strip away all the features that are really part of the pose (and perhaps some other elements -- like the "kupees" -- that one would expect to see on a typical dancer striking that pose), there isn't much left in this case.

"Household Items"

The New York Law Journal notes a First Department decision today [$] holding that a bequest of "household items" includes "all the artwork in testator's home, whether on display or stored in a closet." The case is Estate of Isenberg v. Berger.

Latest on the Gardner Theft

The Boston Globe reports that the FBI is considering using billboards as part of its continuing efforts to track down $300 million worth of artwork that was stolen from the Isabella Stewart Gardner Museum in Boston in 1990. The FBI says the plan is "under consideration," but they "have no imminent plans."

Here is a comprehensive story on the the Gardner theft, which remains on the FBI's list of Top Ten Art Crimes.

Flush With Pride

Police in northern Italy have impounded an artwork consisting of a toilet that flushes to the sound of Italy's national anthem and which had been on display at the Bolzano Museum of Modern Art. Story here.

Sunday, November 05, 2006

Who the $#%& is Jackson Pollock?

That's the title of a documentary that I see from today's New York Times "Holiday Movie Preview" opens at the IFC Center on Nov. 15. It's about "the 15-year struggle of Teri Horton, a 73-year-old former truck driver, to authenticate a $5 painting she bought in a thrift shop as a lost Jackson Pollock masterpiece." The title comes from her response when when an art teacher pointed out that the painting looked a lot like a Pollock.

The UK Telegraph has more on the story here. The movie's official site is here.

Friday, November 03, 2006

Who knew what, when

The Philadelphia City Paper follows up on the Barnes "secret budget item" (a $100 million item from the 2001 state budget, which was in place before the relocation suit was filed), first reported by Christopher Knight in the Los Angeles Times last month and mentioned earlier here.

Thursday, November 02, 2006

Fractional Gifts Update

The Minneapolis Star Tribune had a story yesterday on the change in the law governing fractional gifts of art, which I've written about several times (including here, here, and here). It reports that Minnesota Senator Norm Coleman is working with Senators Charles Schumer and Gordon Smith "on some minor legislative changes," though doesn't indicate what the changes might be.

As in most other press reports about the new law, there's no mention of the most important problem with it -- what I've been calling the "mismatch" problem. There's also one important misstatement: the article says "Museum officials are troubled by the new law's requirement that they take possession each year. If they own 20 percent of a sculpture, that means they must have it at the museum for 73 days each year" (my emphasis). There is no such requirement in the new law. Under the old law, the museum was required to have the right to possession of the work for a portion of the year equivalent to its fractional interest -- but the museum didn't actually have to exercise that right; legal entitlement to possession was sufficient. (This is the so-called Winokur rule, after the Tax Court's 1988 decision in Winokur v. Commissioner.) The new law does many things, but overrule Winokur does not appear to be one of them. Now, the museum has to take “substantial physical possession” of the work within the ten year/before death statutory period -- but there is no express requirement that the museum’s possession correspond to the fractional interest it’s been given (it just needs to be "substantial"), or, to the point made by the Star Tribune story, that it happen on a year to year basis. So if a collector gives a 25% interest in a painting to a museum, the deduction will presumably be allowed even if the museum never takes actual possession until the tenth year. The collector’s ability to retain possession while claiming a deduction seems to remain intact -- just as long as the museum takes “substantial physical possession” at some point within the statutory timeframe.

The flip side of this would be a collector who donates a fractional interest in a painting in November 2006 -- fully intending to convey "substantial physical possession" sometime in late 2007 -- but who dies suddenly in early 2007, without the charity having taken possession of the painting. Here, recapture of the charitable deduction would apparently apply. This is something that could perhaps be dealt with in regulations, but until then anyone who makes a fractional contribution would be wise to arrange for possession by the charity sooner rather than later. All of which, however, is probably academic at the moment since, as I've said, there isn't going to be anybody making fractional gifts -- at least pending the "minor legislative changes" Senators Coleman and Schumer are apparently working on.

New Record?

Carol Vogel reports in today's New York Times that David Geffen has sold a Pollock painting, "No. 5, 1948," for "about $140 million," a price which, "if officially confirmed," would be the highest ever known to have been paid, surpassing the $135 million Ronald S. Lauder paid in June for Klimt’s “Adele Bloch-Bauer I.” She identifies the buyer as David Martinez, a "Mexican financier who bought a two-floor apartment in the south building of the Time Warner Center for $54.7 million recently."