Major Picasso Theft (UPDATED)

Two Picassos worth about $66 million were stolen from his granddaughter's house in Paris Monday night. Police said there were signs of breaking and entering. The full story is here.

The granddaughter, Diana Widmaier-Picasso, is an art historian and author of "Picasso: Art Can Only be Erotic."

According to the linked article, the Art Loss Register currently lists a total of 549 missing Picassos.

UPDATE: Alan Riding now has a story up at The New York Times site, along with a podcast interview and images of the two paintings. He adds that "police said that two drawings, one by Picasso and another unsigned, were also stolen, but this could not be confirmed by the Picasso family lawyer." He also notes that "the artist’s descendants have had artworks stolen before. One famous theft involved pieces worth about $17 million, taken from the Cannes home of Marina Picasso, another of the artist’s granddaughters, in 1989. Those were later recovered. Seven Picasso oils stolen from a gallery in Zurich in 1994 have yet to be found."

Wait No Longer

Back in October, when I wrote about the multilevel slide pieces by artist Carsten Höller that had been installed at the Tate Modern in London, I used as the title of the post someone's comment that "In the United States, this artwork might be called a lawsuit waiting to happen."

Apparently not just in the United States:

"Kate Phillips, a charity director, ... is bringing legal action after saying she broke her hand on the exhibit, leaving her in severe pain and with difficulties working. Ms Phillips ... said she needed seven stitches after sliding down one of the helter-skelters, which were designed by the Belgian artist Carsten Holler and occupy Tate Modern's cavernous Turbine Hall. 'I am claiming for the loss of facility of my right hand ... it's been a real problem,' she said. 'I couldn't type, write or drive for two months. I travel extensively with work but I couldn't even carry a suitcase. Only now, three months on, am I getting back to normal.'"

Charles Lambert asks: "What on earth did she think she was doing? Watching television? Eating tofu salad in the safety of her own kitchen?"

"'We were afraid of something like this"

The New York Times has this report this morning (second item):

"The collage 'Relative Value,' by the Norwegian artist Jan Christensen, was simply irresistible — to thieves, that is. The 7-by-13-foot canvas displayed at the MGM Galleri in Oslo was covered with $16,300 worth of genuine currency from the artist’s own pocket, The Associated Press reported. Unsurprisingly, it attracted the attention of the national news media and the thieves. The thieves smashed a window in the gallery late on Sunday and made off with the canvas and its pasted-on bills. 'We were afraid of something like this,' Mr. Christensen told the Norwegian news agency NTB. 'The picture was insured and the gallery equipped with an alarm.' He said 'Relative Value' had been sold to Norwegian collectors, and the exhibition was scheduled to end yesterday. He added that he had not decided if he would make a new version."

Derek Fincham says "I'm not sure you could technically classify this as an art theft as the thieves were not stealing the art, they were stealing the [currency]."

You can see photos of the work here. Christensen has his own website here.

"An example of mob ties to art theft"

Derek Fincham points to criminal charges that have been brought against a group of Florida police officers for, among other things, delivering "a load of valuable stolen artwork from Florida to Atlantic City." Fincham says he finds the art-related charges "particularly interesting": "A number of claims are thrown about regarding organized crime and stolen art, but there is not a lot of hard evidence to support the claim. Here is some evidence, though it seems the far more serious violations were in regards to extortion and drug smuggling. One of the reasons given for a stronger criminal response to the illicit trade in cultural property are reports like this, which link stolen art to drugs and other more serious crimes."

Twitchell Update

The LA Downtown News has a lengthy update on Kent Twitchell's lawsuit over his painted over Ed Ruscha mural. Tests are ongoing to see if the work can be restored, and at what cost. Twitchell himself says, "It would be too expensive for me to preserve without the lawsuit, but my whole objective is to restore it."

Deaccessioning News

The Buffalo News has come out in favor of the Albright-Knox sale:

"The bottom line is this: The Albright-Knox Art Gallery has a worldwide reputation for its collection of modern art, and it can either polish that reputation or stagnate and watch its luster fade and its international visitor drawing power erode. Polishing requires money, and the gallery board has decided rightly to focus on its core mission of exhibiting, preserving and collecting modern and contemporary art - and to find the money for that by auctioning off parts of the collection that don't tightly fit the core mission."

Meanwhile, the Tennessean has a couple of stories on the Fisk University sale. One points out that "in the past year, a handful of small colleges around the country have found themselves contemplating a similar step." It mentions Rockford College in Illinois (which decided in September to sell almost 70 percent of its collection, and has so far taken in $1.1 million), Hartwick College in New York (which ultimately decided against the sale), and, of course, Philadelphia's Thomas Jefferson University, which recently sold a Thomas Eakins masterpiece for $68 million.

The other story suggests that the O'Keeffe Museum is getting a serious bargain in acquiring the O'Keeffe painting for $7 million. Jock Reynolds, director of the Yale University Art Gallery, is quoted as saying the painting "would surely sell for at least $20 million ..., and quite frankly the sky is the limit on this picture."

Of course, since the sale is part of a settlement of a lawsuit (really it is the settlement), it makes sense that the museum would get some discount. Apparently Reynolds doesn't see it that way, though:

"The agents acting on behalf of the Georgia O'Keeffe Museum are asking Fisk to settle for a paltry $7 million for this great painting, forcing a settlement through legal actions and negotiations that I and others in the art world regard as coercive 'green-mail.' If the trustees and wealthy patrons standing behind the Georgia O'Keeffe Museum really care about Fisk University, the Stieglitz Collection and the citizens of Nashville, let them demonstrate their integrity and courage by bidding for the [painting] in fair open-market competition with other individual collectors and museums. To do otherwise will disgrace the legacy of Georgia O'Keeffe."

Putting aside the fact that that would have amounted to a total capitulation by the museum in the lawsuit (because the posture of the suit was that all Fisk wanted was to put the paintings on the market, and what the museum was trying to do was prevent that from happening), what do you think the reaction would have been if Fisk had sold the painting to an "individual collector" to hang on his living room wall?

Cold Cut

As a follow up to my post last week about the appropriation art panel, I see that Eugene Volokh quotes a great line by Judge Leval from when he was a district judge and was reversed a couple of times in this area by the Second Circuit:

"It has been exhilarating to find myself present at the cutting edge of the law, even though in the role of the salami.

From Pierre Leval, Fair Use or Foul? The Nineteenth Donald C. Brace Memorial Lecture, 36 J. Copr. Soc'y 167 (1989).

Albright-Knox Knews (UPDATED)

The Buffalo News has the latest on the Albright-Knox deaccessioning. The Buffalo Art Keepers group is planning "to file a petition in State Supreme Court early next week to force the gallery to stop the sale .... Richard Stanton, the lawyer representing Buffalo Art Keepers, said he will ask the court to review the gallery's decision and what he called a break from its mission statement and collections-management policy. ... Stanton said the Art Keepers' case is based on a state law that requires state approval of major changes in a nonprofit institution's mission statement. He said the decision to sell the works constitutes a major change in the gallery's mission." Seems like a stretch to me, but I guess we'll find out soon enough.

More from Lee Rosenbaum here.

Meanwhile, in a piece entitled "The War Against the Albright-Knox," filmmaker and SUNY Buffalo professor Bruce Jackson lets Tom Freudenheim and the Art Keepers have it, with both barrels. Some samples:

"The mission of the Albright-Knox is not now, was not 50 years ago ..., and never has been 'providing access to all kinds of high-quality art.' ... The Albright-Knox Art Gallery is dedicated to modern and contemporary art. It always has been. It has on occasion acquired, through gifts and more rarely through purchase, other material, but that hasn’t altered its consistent focus on modern and contemporary art. Making up stories about other missions doesn’t change the reality of that. Tom Freudenheim is claiming a role for the Albright-Knox it never had, then faulting the gallery for failing to fulfill the nonexistent role he made up for it."

...

"So far as I can tell, the war started by Tom Freudenheim and carried on by [the Art Keepers] is a lot of sound and fury over nothing. With a few exceptions, the objects being deaccessioned have been rarely displayed; some have never been displayed at all. The Albright-Knox has never had a major exhibit of any of them and it has never hired a curator to deal with them or further develop their areas. They have always been seen as peripheral to the gallery’s mission. Selling off pieces of the collection for operating expenses is strongly disapproved of by the Association of Art Museum Directors; selling for acquisition funds is done all the time. Museums get rid of duplicates, they get rid of pieces that aren’t very good and they get rid of pieces that may be very good which are part of their collections but which they’re willing to sell because the money will let them do lots of things central to their mission. ... So the questions for Carl Dennis are, 'Other than you having discovered something that museums do all the time, and which the Albright-Knox itself has done in the past, what’s new? Why kvell?'"

...

"All these letters have been written, meetings taken and meetings planned, lawyers hired. Now what? The gallery’s board has the sole legal authority to decide what to buy, what to keep, what to sell, what to build and whom to hire. The vote of the membership Dennis is working so hard to organize is meaningless, and the threatened lawsuit he and a few other people are funding seems equally pointless. How likely is it a judge will block a sale undertaken within the terms of the organization’s charter, undertaken after consultation with top professionals in the field and vetted in advance by New York’s attorney general?"

UPDATE: Derek Fincham agrees that it will be "extremely difficult" for the Art Keepers to prevent the sale.

Goudstikker Works to Christie's

Carol Vogel reports in tomorrow's New York Times that approximately 170 old master paintings recently returned to the heirs of Jacques Goudstikker after an eight-year legal battle with the Dutch government will be auctioned off by Christie's beginning in April.

Some interesting marketing decisions were involved. For example:

"There are many works by the same artists — six by van Ruysdael, four by Jan van Goyen, six by David Teniers the Younger — so to avoid saturating the market, Christie’s recommended three separate sales. The first is April 19 in New York; the next, July 5 in London; and the third, in November in Amsterdam."

Last week an Amsterdam court awarded one of the heirs' Dutch lawyers at least $2.5 million, but, according to the Associated Press, "suggested that amount should be quadrupled to $10 million to reflect the risk the lawyer took in working on the case for so long with uncertain prospects for payment. 'A multiplication factor of four is not unreasonable, under the given circumstances,' the court said in its written ruling. It left it up to both sides to negotiate the exact amount." The AP adds that "the ruling opens the question of what the Goudstikker heirs will be left with in the end. Evidence cited in the ruling suggested another Dutch lawyer might seek up to 20 percent of the value of the collection, U.S. lawyers another 10 percent, and a U.S. art historian who helped research the case yet another 10 percent."

Good background on the Goudstikker matter from Alan Riding of the Times here.

Appropriation Art and Copyright

Bill Patry posts his thoughts on this symposium last week regarding appropriation art, which included his "public dialogue" with Second Circuit Judge Pierre Leval on the pertinent copyright issues. He emphasizes that the typical dispute in this area is "intra-mural, pitting one artist against another," and says that "for me and I believe Judge Leval, fair use has done, on the whole, an admirable job of mediating between the two typical opposing forces in art appropriation: the artist whose work has been appropriated and the artist who does the appropriating."

That's true enough, but I thought a better sense of the bottom line was conveyed by Judge Leval when, after giving some general remarks on copyright and fair use, he asked, "So what's it all mean for appropriation art," then paused . . . and kind of threw up his hands and said: "I don't know." He went on to say the law in this area is "astonishingly unpredictable" and that it's "very hard to know what the law is." He said "almost any question" in this area is "very difficult to answer" and added that he doesn't know of any area of law where there are so many reversals by the appellate courts.

Judge Leval has himself tried to bring some order to the chaos of fair use doctrine with his influential "transformative use" test, but I've never felt that standard was particularly useful (I don't think an artist can ever truly be confident that a court will agree that a given use is "transformative"; it doesn't reduce the level of uncertainty for artists to any appreciable degree). At the panel, he also emphasized that there are hard cases in lots of other fields too (he mentioned child custody and death penalty cases as examples); so perhaps, as Professor Patry says in his post, there's no solution other than to tackle each claim of fair use on a case-by-case basis. (Though, as I've mentioned before, there are other proposals out there.)

In any event, a very interesting panel all around, and Virginia Rutledge is to be thanked for organizing it.

"While artists are alive, their decision whether to exhibit work or not should be respected"

John Perreault defends Richard Prince against those who would find fault with his attitude toward a show of his early work at the Neuberger Museum. Perreault bases his argument, at least in part, on the Visual Artists Rights Act: while he correctly notes that "according to the letter of the law, [curator Michael] Lobel and the Neuberger are off the hook" -- among other things, VARA applies (with exceptions that don't appear to be relevant here) only to works created after Dec. 1, 1990, and allows an artist to "disclaim" authorship only in cases where there has been a distortion, mutilation, or modification of a covered work -- he argues that the "spirit of the law" is "you either respect the wishes of artists, or not." He says the "real issue is whether a living artist has authority over the display and the treatment of his or her work," and he thinks the answer is clearly yes.

My own, somewhat narrower defense of Prince is here.

Latest on the "Matter Pollocks"

Geoff Edgers had an update in this weekend's Boston Globe. They're going to be exhibited at Boston College's McMullen Museum of Art in September, and the show will then travel to the Everson Museum in Syracuse. It will include about 100 works and will "explore the relationship of Pollock, his wife, Lee Krasner, and the Matters." In addition to paintings by Pollock and Krasner, there will be photographs by Herbert Matter and paintings by his wife, Mercedes. The Matter pictures will be exhibited in a separate room labeled "problems for study."

Interestingly, the Pollock-Krasner Foundation, which owns the copyrights in Pollock's work, has said it will not allow the museums to reproduce any of his work in connection with the exhibition.

The McMullen has a page up at its website previewing the show here. A press release is here.

JL at the excellent Modern Kicks says "it sounds like BC is trying to do things right here":

"This is the best way to go. The McMullen is going to have to work hard not to get used in the process, but we all want to see these paintings, don't we? And to do so in the context of other work, Pollocks and those around him or these paintings. I understand the suspicions the paintings raise, and it seems clear that no one at BC wants to be seen as putting their reputation behind their authenticity. But we still want to have the chance to look and decide for ourselves. And while I understand the refusal of the Pollock-Krasner Foundation to cooperate and allow reproductions of undoubted paintings by either of those artists in the McMullen's catalog or exhibition, it's not really the best outcome from the perspective of an interested outsider. I suppose if one's of the opinion that these are fakes, even if not deliberate ones, there's no need for any of this. But I'd still like to see them."

"The most famous face in Norway"

Richard Lacayo points to a long article this weekend in The Guardian about the 2004 theft of The Scream from the Munch Museum in Oslo. He summarizes the two main points:

1. "The painting may have been stolen not for its own sake, but to draw off Norwegian police resources from an investigation into a notorious robbery and killing that had taken place earlier that year."

2. "Damage to the painting is worse than we thought. ... 'A huge watery stain, like a watermark on a teabag, seeps over the bottom left-hand corner, on the walkway and even on the lower part of the figure. Pigment has dissolved or been washed away.'"

Deaccessioning Updates

Inside Higher Ed has a piece on "the core, ethical issues" involved in the Fisk University sale. It quotes from the Tennessee attorney general's letter approving the deal between the university and the O'Keeffe Museum: "This office must conclude that the preservation of the collection is not worth the risk of financially crippling one of the preeminent historically black colleges and universities in the nation." The last word is given to the president of the museum's board, Saul Cohen: "In real life, the choice is often not between the good and the bad but between the bad and the worse. ... If it’s a question of an institution’s survival, ... it seems to me the case is clear. ... I think every case has to be looked at individually. There is no right or wrong answer.”

Meanwhile, Lee Rosenbaum has some news from the Buffalo Art Keepers about the Albright-Knox sale. More here, including Tom Freudenheim's November Wall Street Journal piece arguing against the sale.

MoMA Trouble

I was away from the computer Friday when the big news was a front-page story in The New York Times about payments made to MoMA director Glenn Lowry through a trust set up by museum trustees. According to the article, the trust paid him a total of $5.35 million between 1995 and 2003, on top of the compensation paid by the museum.

CultureGrrl Lee Rosenbaum and Time magazine's Richard Lacayo have much more.

Catalogue Copyright

The Maine Antique Digest reports on a copyright infringement suit brought in Texas by one auction house against another over catalogue descriptions (of, in this case, coins). Judging from the examples in the report, seems like a very strong case.

Today in Deaccessioning (UPDATED)

A settlement has been reached in the lawsuit involving Fisk University's attempts to sell two paintings given to it by Georgia O'Keeffe. It's a two-stage process: First, the Tennessee Attorney General has given the university 30-days to come up with an alternative to the sale. (Tyler Green notes: "Given Fisk's fundraising history: Don't hold your breath.") Then, if that fails, the museum has agreed to buy one of the paintings (O'Keeffe's Radiator Building) for $7 million and to withdraw its objection to the sale of the other (Marsden Hartley's Painting No. 3) on the open market. Christie's appraised each painting at $8.5 million in 2005. (Green again: "Why, in this art market, anyone is using a two-year-old appraisal is beyond me.") The Tennessean has further details here. Earlier posts about the case, which I've called an example of "survival deaccessioning" (where deacessioning is really the only way to keep the institution alive), here, here, here, and here.

And in other deacessioning news, Kate Taylor has a story in today's New York Sun about the Albright-Knox's decision to sell a number of works. She writes:

"Rarely does a community get as exercised as residents of Buffalo are over the decision by the board of the Albright-Knox Art Gallery to sell almost 200 antiquities and classic works in order to purchase contemporary art. The objects, which include works of African, Oceanic, and pre-Columbian art, Chinese ceramics and porcelain, classical sculpture and Old Master paintings, will be sold in a series of sales at Sotheby's, beginning next month. The most valuable piece, a late Hellenistic/early Roman imperial bronze sculpture of Artemis and the stag, is expected to sell for between $5 million and $7 million. The total sale is estimated at $15 million ...."

The museum justifies the sale on the ground that the works fall outside of its "core mission," which is collecting contemporary art, not antiquities. Its director says: "We've never had designated curators devoted to any of these areas — to develop the collections or, frankly, to even organize exhibitions around them. As objects on their own, they are important, they're beautiful, but they are clearly outside the main mission." Which elicits this response from a University of Buffalo professor: "He has a responsibility to the people of New York to display the permanent collection." I quote that response because it's an interesting extension of an argument that often gets made in these deaccession debates -- the museum has a responsibility to the public not to: sell this Eakins painting, or trade one Eakins for a better Eakins, or treat its art holdings like capital assets, and so on -- that I think proves a little too much. Of course a museum's trustees owe a duty of complete loyalty to the interests of their beneficiaries -- the public. But it seems to me that's just the start of the conversation, not the end. Are we better off -- that is, is it in the public interest -- to hold onto The Cello Player if it means the loss of The Gross Clinic? Are we better off keeping the Stieglitz Collection intact if it means the bankruptcy of the instituion? Are we better off selling a tiny fraction of the Barnes Collection and keeping it where it was intended to be, or refusing to sell anything and having to move the entire collection to a new home? It seems to me those are the questions that have to be wrestled with in each case, rather than simply invoking "the responsibility to the people of _________."

UPDATE: The New York Times story on the Fisk settlement is here. A sidebar story in the Tennessean says the Gross Clinic transaction was a useful precedent for structuring the settlement here. Is the Kimmelman Approach becoming the new standard?

Meanwhile, "radical conservative" Lee Rosenbaum has two posts up on the Albright-Knox, and also links to this article on the "Buffalo Art Keepers," "a group of college professors, artists and community members led by local Pulitzer Prize-winner Carl Dennis [which] is mounting a campaign against" the sale.

More Prince

Ed Winkleman has another post up about the Richard Prince show at the Neuberger Museum, mentioned earlier here. He starts with a quote from curator Michaels Lobel's introduction to the catalogue for the exhibition:

"We can certainly allow that there are categories of work that should not be included in the official record, or that at the very least have an ambiguous status: student works, for instance, or pieces that never leave the studio and thus are never fully realized or executed. But once a work has been executed and exhibited and written about, and perhaps even bought and sold, are we really to allow an artist to edit or erase the historical record? My short answer is no."

Winkleman agrees, and it's clear he feels pretty strongly about it: "it's a very small thing collectors and gallerists ask of fine artists: don't unendorse a piece I bought and don't delete the exhibition I gave you from your CV. Seriously, how freakin' hard is that? You had the show...you sold the work. Live with it."

But I don't think I really understand the claim that Prince has done something wrong here. Lobel talks about "editing or erasing the historical record," and Winkleman about "rescinding authorship," "declaring that for all intents and purposes an earlier work he created is not 'a Richard Prince,'" but, unless there's more to the story than appears to be the case, I don't see where that's happened. According to Roberta Smith's review, Prince "declined to participate" in the show, and also refused copyright permission for the catalogue -- both of which he clearly had the right to do. He didn't (so far as I know) seek an injunction or otherwise try to block the show; he hasn't declared that the works shown are not Richard Princes. Why is it somehow improper for an artist to be an active interpreter of his own artistic development? What's wrong with saying (and I'm not suggesting Prince is saying this here), "Now that I look back on it, I really didn't find myself as an artist until such-and-such date or exhibition. The work I did before then, while I don't deny that it is mine, doesn't really feel to me to be a significant part of my story as an artist"? Rather than "editing" or "erasing" the historical record, isn't that really participating in understanding it? Is Richard Prince the only person who doesn't get to have a say about The Early Work of Richard Prince?

Agents de surveillance

Guards at the Louvre are on strike.

"How does an attorney expect to get away with this kind of thing?" (UPDATED)

Derek Fincham points to a story in the Boston Globe about the arrest of attorney Robert Mardirosian on charges of attempting to possess, conceal, store, and sell stolen art. The works were left with Mardirosian by his client (the thief) 30 years ago and then made their way from Massachusetts to Switzerland, London, and Monaco as he attempted to sell them. Fincham says the story "reveals a number of things about the current state of the market. First, the shroud of secrecy surrounding transactions is not productive. Second, import controls are not working. It is just not possible to adequately inspect most of what gets shipped around the world. Finally, how does an attorney expect to get away with this kind of thing?"

Here is a year-old post on Mardirosian, who at the time was quoted as saying: "I know some things don't look good here, but I believe I have a legitimate case to make. I could have sold these a dozen times, but never did. My whole intent was to find a way to get them back to the owner in return for a 10 percent commission."

UPDATE: The Cape Cod Times reports: "Yesterday the owner of the paintings, Michael Bakwin of Virginia, filed a $3.5 million civil lawsuit against Mardirosian and his wife in Barnstable Superior Court .... Bakwin is seeking compensation for the millions in legal fees and other expenses incurred in recovering the paintings."

"Picasso" Lawsuit

The New York Post reports today on a lawsuit filed in Manhattan over a disputed Picasso drawing. The plaintiff, art dealer Chantal Park, is seeking the $145,000 she paid for the drawing plus $5 million in punitive damages.

Punitive damages are available for breach of contract in New York only in very rare circumstances, generally involving conduct that's "part of a pattern directed at the public generally," which, on the face of it, doesn't seem to be present here, although, as this longer piece in the Maines Antique Digest points out, one of the defendants "has been tied to the sale of fake artwork in the past":

"[Defendant Biagio 'Luigi'] Cugini has been investigated for trafficking in fake artwork in the past. Cugini and Dr. Vilas Likhite, who was arrested in December 2004 in California for allegedly selling fake art, were codefendants in a federal case in the mid-1980’s involving $600,000 in fake art sold to wealthy art collectors in New York. In the 1985 case, Cugini and Likhite were charged in U.S. District Court in New York with art forgery and fraud involving artists such as Hans Hofmann, Jackson Pollock, and Willem de Kooning. The case, however, was dropped."

I posted on Dr. Likhite, a former Harvard Medical School professor, here.

"Fugitive Artist" (UPDATED)

Roberta Smith had a review last week of a Richard Prince show up at the Neuberger Museum that raises some interesting copyright issues. It's a show of very early works by the artist, and Smith reports that he wasn't thrilled with the idea and so "declined to participate in the Neuberger show, as did his dealer, Barbara Gladstone." He also refused permission to reproduce the works in the exhibition’s catalogue (Smith points out that the catalogue designer made a virtue out of necessity by including "blank rectangles, complete with captions, where the images should be," making it "something of a participatory Conceptual Art piece"), and a reader asks whether this might amount to the kind of "copyright misuse" discussed earlier today in the context of the Joyce case. I think not -- there's very little caselaw on what constitutes misuse, but whatever it is, an artist should always have the right to turn down permission to use his work in a project he's not happy with, which is why Carol Shloss's lawyers wisely based their misuse claim on other kinds of alleged abuse by the Joyce estate ("intimidation," and claiming rights in third-party materials they clearly did not own the copyrights in). Of course there is always fair use, which is what the Times relied on in sending its own photographer to take photos to run with the review. For her part, Smith finds the whole thing a little baffling: "It is hard to understand Mr. Prince’s disengagement from a respectful show of works he obviously took quite seriously. Some are a bit embarrassing, but in the main they increase his stature."

UPDATE: Ed Winkleman comes at the story from a different angle, focusing on the ethical issues involved when an artist disowns his own early work: "I'm not saying an artist shouldn't destroy the earlier work they still have if they reach that point of recognition where it makes them cringe, but once they've cashed the check from selling it, they're obligated to let it stand as a product of their efforts (or at least obligated to buy it back [at current market value] and then destroy it). They've agreed to a social contract by accepting money for it, IMO." In the comments, David Palmer quips that "someone who bought the early work can't say they own an artwork by Richard Prince. The work they own is by the artist formerly known as Richard Prince." (Another commenter wonders if "maybe this is an appropriationist's prank, all about authorship, originality, etc.")

Decision in the Joyce "Copyright Misuse" Case

Joyce scholar Carol Shloss's complaint against the Joyce estate has survived a motion to dismiss. Much of the decision has to do with the question whether there was a sufficient "case or controversy" for the court to get involved (the estate apparently agreed not to sue over the website at issue "as it existed in 2005"), but, significantly, also includes this on the copyright "misuse" cause of action:

"Plaintiff undertook to write a scholarly work on Lucia Joyce -- the type of creativity that the copyright laws exist to facilitate. Defendants' alleged actions significantly undermined the copyright policy of 'promoting invention and creative expression,' as Plaintiff was allegedly intimidated from using (1) non-copyrightable fact works such as medical records and (2) works to which Defendants did not own or control copyrights, such as letters written by third parties. The Court finds that Plaintiff has sufficiently alleged a nexus between Defendants' actions and the Copyright Act's public policy of promoting creative expression to support a cause of action for copyright misuse."

The decision is here. Larry Lessig, who is representing Shloss, is, needless to say, thrilled. Fellow IP law prof Mike Madison is pleased too. For background on the case, see my earlier post here as well as this terrific New Yorker piece from last summer.

"Trapped on the horns of a dilemma"

Philadelphia Inquirer art critic Edward Sozanski weighs in on the Cello Player sale today. First, he acknowledges that "trading up to improve a collection is fully compatible with established museum protocols. In fact, it's one of relatively few legitimate reasons for what museums call 'deaccessioning.'" On the other hand, he's troubled by the secrecy surounding the sale:

"At least we knew where [The Gross Clinic] was going - first to the National Gallery of Art, then to a new public museum in Arkansas. The Cello Player has vanished into a black hole. Even the chairman and vice chairman of the academy's board ... say they do not know who bought it. This sounds more like a kidnapping than a sale, as in: Leave the painting in a storage locker in Long Island City. A cashier's check will be deposited to your Zurich account within 48 hours."

He also flags "one curious provision" in the sale contract:

"The new owner has agreed to lend the painting to the academy for exhibition 'as needed,' whatever that turns out to mean in practice. One could argue that the academy needs it now and forever because, unlike the Art Museum, it doesn't own a large number of major Eakins paintings. It's now down to three, all portraits, none of which equals The Cello Player in quality or complexity of mood."

The bottom line:

"The precedent of dipping into prime aesthetic capital remains troubling, but perhaps in time the new order, based on shared custody of The Gross Clinic, will compensate. And we must remember that The Cello Player can be lent back from time to time. As needed."

Hammer Time

From today's New York Times (third item):

"A French appeals court yesterday upheld the three-month suspended sentence given to a 78-year-old Frenchman who attacked 'Fountain,' Marcel Duchamp’s porcelain urinal, with a hammer last year .... Pierre Pinoncelli chipped the urinal, valued at $3.6 million, in January 2006 at an exhibition of the Dada movement at the Pompidou Center in Paris, and scrawled 'Dada' on the work."

According to the Times, Pinoncelli also urinated on "Fountain" at a 1993 exhibition and once "cut off a finger to express solidarity with a French-Colombian politician being held hostage in Colombia."

Man Bites Dog

It appears that Philadelphia may not be losing some important art. A proposal to sell off artworks held by various city public schools (discussed earlier here) seems to be losing momentum. The School Reform Commission member who proposed the sale is now a former member, and the current schools chief executive says he doesn't think "the current SRC members were inclined to sell the art." Story in the Philadephia Daily News here.

Barnes Update

The Philadelphia Inquirer has the latest on (what's left of) the efforts to block the Barnes move to Philadelphia. The proposed bill by U.S. Rep. Jim Gerlach, whose district includes the Barnes, "will be introduced in a week or two." It would amount to a "poison pill" for the Barnes, forcing it to pay an excise tax equal to the amount raised for the move, which is now more than $150 million. But even Gerlach says the bill's chances of passing are "very uncertain." Norman Ornstein, "a nonpartisan Washington analyst," is quoted as saying "this is not an issue that will make it prominently onto the radar screen of Democratic leaders in Congress. There will be a lot of members leery about a federal law putting such stringent limits on foundation boards."

Earlier posts on the Gerlach bill here and here. An earlier post on the Barnes move is here.

Today in Rockwell Law

A couple of art law stories featuring Norman Rockwell today.

First, The New York Times reports (second item) that on Monday Curtis Publishing "abandoned its legal battle" to recover six Rockwell paintings from the family of the late Kenneth Stuart, the former art director of the Saturday Evening Post. (For background on that legal battle, see this earlier post of mine, which observed that at this point the claim was "a real longshot.") The very next day, the eldest of Stuart’s three sons petitioned the Connecticut probate court handling his father’s estate for an order directing the sale of the paintings in order to take advantage of "favorable market conditions." It's the latest move in "a fraternal dispute that has spanned 14 years," which is also summarized in my earlier post. The lawyer for the other two brothers is said to be "shocked by the filing ... in light of the injunction that bars Mr. Stuart from disposing of assets unilaterally" -- but it would seem that, in seeking the court's permission for the sale, he is precisely not acting unilaterally. The court-appointed special master in the probate case says that selling the paintings is "an obvious way to let the brothers go their separate ways." After 14 years, probably not a bad idea.

While Curtis was abandoning one lawsuit this week, it was just starting another one, filing a copyright infringement action in Federal court in Manhattan against the National Review for its use, on a 2004 magazine cover, of Rockwell's "Freedom from Want" (also known as "Thanksgiving Dinner"), which appeared on the cover of the Saturday Evening Post in 1943. Here is an image of the original work. In a letter to the National Review at the time of the alleged infringement, Curtis's lawyer described the 2004 cover as "an exact duplication…except that a mound of money has replaced the turkey on the platter, bundles of money are shown on the plates, and stock certificates are scattered on the tablecloth." Story from The New York Sun here.

Urban v. Urban (UPDATED)

The Wall Street Journal Law Blog reports that country singer Keith Urban has brought suit in Nashville federal court against a New Jersey painter also named Keith Urban:

"Keith the Painter (hereinafter 'Painter') owns http://www.keithurban.com/ and Keith the Rocker and Husband of Nicole Kidman (hereinafter 'Rocker') owns http://keithurban.net/site.php. Rocker says Painter is trying to mislead Internet users into believing that the site is the Rocker’s Web site. The complaint ... alleges Painter is trying to sell artwork on his site by using language intended to confuse the public like, 'You have reached the site of Keith Urban. To those who don’t know, oil painting is one of my hobbies.' ... The lawsuit, which among other things alleges trademark infringement and a violation of the federal anticyberquatting laws, seeks transfer of the keithurban.com address and an injunction barring Painter from operating a Web site that suggests he’s the singer."

UPDATE: Geoff Edgers: "Far more disturbing than the idea of our court system somehow paying for this mess is a click through the 'artist's' website."

"A trade-off we were willing to make"

Stephan Salisbury has a story in today's Philadelphia Inquirer on the Cello Player sale:

"The deal, some say, has soured what had been a heady community fund-raising effort to keep Eakins' masterpiece, The Gross Clinic, in Philadelphia - because now a leader of that effort has done precisely what many donors were upset about in the first place: sold a treasured painting in a secret transaction."

He puts the price at $15-18 million, and also confirms that none of the PAFA board members knows the identity of the buyer (an issue I touched on in this post).

Lee Rosenbaum has more here, defending her "radical conservative" position that "holding museum-quality works that are already in the permanent collection should be an absolute." She says "it would have been better to lose 'The Gross Clinic' to the publicly accessible museums (the National Gallery of Art and Crystal Bridges) that had offered to buy it from Thomas Jefferson University than it was to lose 'The Cello Player' to the private domain, as now appears to have occurred." But what if the facts were reversed and The Gross Clinic was in danger of being lost to a private collector but could be saved by the sale of The Cello Player to a publicly accessible museum like the National Gallery? In those circumstances, would we still be better off letting The Gross Clinic go?

You Said "All" Risk, Didn't You? (UPDATED 2X)

The Wall Street Journal had a story ($) today about a Federal court decision in the Northern District of Illinois holding that an "all risk" insurance policy covered the conversion by a gallery of artworks consigned to it by the policyholder. (I couldn't find a copy of the decision online or on Westlaw. UPDATE: see below.)

According to the Journal, the plaintiffs consigned 11 paintings to Chicago dealer Richard H. Love, which he then sold and kept the proceeds. Since Love was apparently judgment-proof, the plaintiffs filed a claim under their insurance policy. The insurer denied coverage, but the court held that the loss was indeed covered: "There can be no doubt that the Gallery's unauthorized sales deprived plaintiffs of their property."

The Journal hypes it as a very big deal -- the huge four-column headline screams, "This Insurance Case Could Shake Up the Art Market," and the article claims the case "may well have a ... dramatic impact on the art world ... in terms of how high-echelon paintings, sculpture, antiques and other tangible assets such as silver, jewelry and china are bought and sold in the U.S." -- but I'm not sure I see it. Won't the insurance companies simply amend their future policies to make it clear this kind of loss is not covered?

UPDATE: Terry Martin comes through again. He's posted a copy of the decision here.

UPDATE 2X: The Insurance Coverage Law Blog doesn't see what all the fuss is about either.

Berend Analysis

Derek Fincham has a good analysis of the recent decision in Iran v. Berend (mentioned earlier here):

"The dispute ultimately came down to which nation's law should apply to the dispute, France or Iran. Under Iranian law, the object would be returned, but under French law, the 30 year statute of limitations period had elapsed, and Berend would have clear title."

Because the work has been in Berend's Paris apartment since its purchase in 1974, the Court ruled that French law applied, leading Fincham to wonder "why Iran did not pursue its claims in 1974, when the object was first sold."

Museum Photography

The New York Sun has a piece today on "how the proliferation of digital cameras is changing the museum experience for visitors and the institutions themselves." Some New York museums, including the Jewish Museum and the Whitney, don't allow any photography. Others, including MoMA, the Met, and the Brooklyn Museum, do allow photography, with restrictions (e.g., no flash).

The article does a pretty good job summarizing the relevant law:

"Generally, works of art that were created before 1923 ... are not subject to copyright law. For newer works that are covered, there is a distinction between owning a work of art — the physical piece itself — and owning the right to copy it, which is usually held by the artist or his estate. MoMA and the Met do not hold the copyrights to newer works in their permanent collections. Allowing public photography of this work is generally justified as fair use, depending on several factors, including the quality of the image and whether it is for private use."

One quibble: it's not whether a work was created before 1923 that matters; it's whether it was published, which often turns out not to be an easy thing to determine.

Take Two

Randy Kennedy reports in this morning's New York Times that the Goya painting that was stolen on its way to an exhibition at the Guggenheim last fall, and then recovered, is going to try to make it to the museum again:

"On Feb. 16 that 1778 painting, 'Children With a Cart,' owned by the Toledo Museum of Art in Ohio, will join the exhibition where it was previously scheduled to appear: 'Spanish Painting From El Greco to Picasso: Time, Truth, and History,' which opened at the Guggenheim in November and continues through March 28. The painting was recovered unharmed in central New Jersey after a lawyer called the F.B.I. and told investigators where they could find it, adding that he could not tell them anything else about the theft. Law enforcement officials said it appeared that the thieves probably had no idea what was in the truck they broke into overnight in a parking lot at a Howard Johnson Inn near Bartonsville, Pa. The investigation into the theft is continuing, both museums said. After the recovery, the painting was returned to Toledo, where museum officials recently decided to allow it to travel again."

Lee Rosenbaum reports that arrests in the theft "will be forthcoming."

Debating Deaccessioning

WHYY in Philadelphia did a show this morning on the Pennsylvania Academy of Fine Arts' sale of Eakins's Cello Player in order to help pay for The Gross Clinic, mentioned earlier here and here. The guests were Herbert Riband, a member of the PAFA board, CultureGrrl Lee Rosenbaum, and law professor Stephen Urice. Lee has a post up about the show here, which includes a link where you can access it and have a listen.

I'm generally unsympathetic to Lee's "absolutist" position on deaccessioning, and I think Professor Urice was correct in pointing out that the AAMD's list of six deaccessioning rationales is not exclusive and that the museum community has traditonally endorsed the sale of artwork in order to purchase better artwork. But one thing I think he passes over too quickly was the admission earlier in the show by Mr. Riband that he didn't know who the buyer is. I think an argument can made that the nature of the buyer is crucial in evaluating a deaccession decision: all else being equal, a sale to a public buyer -- where the work will remain accessible to the public -- should always be preferable to a private sale. Now, Professor Urice seemed to take some comfort in the fact, also disclosed earlier in the show by Mr. Riband, that the buyer has agreed to periodically lend the work back to PAFA for public display, but I question whether the board can have adequately discharged its duty of care without at least knowing where the work is going to be when it's not on loan to the museum. It may well be that, when all the relevant factors are considered -- the price, the nature of the buyer, and the details regarding the commitment to lend back the work -- the sale was in fact justified as the best/only way to acquire The Gross Clinic. But, again, I'm not sure how that judgment can be made without knowing who the buyer is.

Berend Decision

Via the invaluable Terry Martin, I see that the London High Court decision in Islamic Republic of Iran v. Berend is now online here.

The Scotsman has a summary:

"Iran ... lost a legal battle against an 85-year-old French widow over a piece of carved limestone from the ancient Persian capital of Persepolis. London's High Court ruled in favour of Denyse Berend, who bought the artefact in 1974, in a case brought against her by the Iranian government which sought to reclaim the relief fragment. After a week of legal argument, Mr Justice Eady decided Berend was the legal owner of the piece .... Berend bought it at a New York auction in 1974 and decided to sell it through London auctioneers Christie's in 2004. When it learnt about the planned sale, the Iranian government, which has stepped up efforts to secure the return of thousands of Persian artefacts held abroad, obtained a court order preventing Christie's from selling it."

Art Law, Briefly

A couple of items from The New York Times today:

• "A 26-pound gold bar valued at $270,000 has been stolen from an installation by the American artist Gary Hill at the Fondation Cartier in Paris, Reuters reported. ... The ingot, hefted from a basin filled with black oil, was part of a work featuring a video projection of a giant eagle locked inside a pylon.”
• "After winning the return of more than 200 artworks looted by Nazis, the American heir of a Jewish art collector is seeking an injunction against her lawyer, Agence France-Presse reported. In The Hague on Wednesday the heir, Marei von Saher, is to seek an injunction to prevent the lawyer, Roelof van Holthe tot Echten, from seizing the paintings in lieu of the $16 million he says he is owed in fees. Mrs. von Saher has offered him $1.7 million. She is the heir of Jacques Goudstikker, a leading Amsterdam collector before World War II whose works were taken by the Nazis and later retrieved in part by the Netherlands, which agreed last year after eight years of legal wrangling to return 202 of the paintings. They had been hanging in Dutch museums since the 1950s." An earlier story on the Goudstikker matter by Alan Riding of the Times is here.

Rook for a Queen

Art historian Michael J. Lewis elaborates on his view that the sale of Eakins's Cello Player to help pay for The Gross Clinic is "sort of break-even":

"The sale of items from a museum collection is called 'deaccessioning,' an unattractive word for an unattractive act. Museum ethics are quite strict about the process: one may sell objects to enhance a collection—trading up, as it were—but never to cover operating expenses or to pay for repairs. Such actions are looked on with horror in the art world, as the equivalent of burning furniture to heat the house for a few days.

"From this perspective, the swap is relatively unobjectionable. Both paintings show Eakins at his best, observing his most characteristic subject, a titanic figure in a moment of intense concentration and action. And both works are in a sense autobiographical, showing the empathy Eakins reserved for those he regarded as fellow artists. Of the two paintings, however, The Gross Clinic is by far the finer, matching in originality and intensity of expression what Huckleberry Finn achieved in literature or Boston’s Trinity Church in architecture. One can sympathize with the Academy for making this difficult decision.

"On the other hand, one need not endorse it. Museums that think boldly attract bold donors; and museums that think cautiously do not. When the original purchase was announced it seemed like a brilliant but risky chess gambit; in the light of this sale, it looks considerably less spectacular, like the sacrifice of a rook for a queen. If more works are sacrificed in the coming months, however, this daring gambit might begin to look like an ill-considered blunder."

C.S.I. Pollock

Randy Kennedy has a piece in the Week in Review section of today's New York Times discussing the "Matter Pollocks" and the increasing role of science in art authentication disputes:

"Modern science employed in the cause of art world detective work is not exactly new; it was pioneered by scholars like Edward Forbes at Harvard beginning as early as the 1920s. But advances in technology and a growing desire among scientists to delve into art and conservation questions have made it a much more prominent part of the field in the last decade. And as this has happened, a clash of cultures between two very different worlds — hard science and the more subjective, individualistic traditions of the art scholar — has come into sharp relief."

Earlier post on a similar topic here.

Geoff Edgers of the Boston Globe has spoken with Alex Matter, who insists the paintings are real depsite the recent Harvard study. "His reasoning, which we'll detail soon in the paper, might make more sense than you would expect."

Eakins Aftershocks

To help pay for "The Gross Clinic," the Pennsylvania Academy of the Fine Arts has apparently sold another Eakins painting, “The Cello Player” (1896). Stephan Salisbury has the story in the Philadelphia Inquirer. He says the sale of the painting, which was purchased by the academy in 1897 and has been on public view there ever since, "struck members of the city's cultural community with a bittersweet force."

He also has the following quote from Philadelphia resident and Williams College art history professor (and blogger) Michael Lewis: "It's an old established practice that museums can tinker with their collections to improve their collections. In this case, it's trading something from the heart of what they do - American realism. The argument [for the sale] is a little murkier. The net deal is sort of break-even."

I think it's safe to say Lee Rosenbaum disagrees:

"I'm [now] saying that the [Gross Clinic] acquisition is not just a hollow victory; it's a debacle. There is nothing to celebrate in selling one masterpiece (or maybe more) to acquire another one. ... With PAFA's willingness to sacrifice one of its signature paintings by Eakins ... for the sake of acquiring another Eakins that had become a community cause célèbre, we have turned a corner from responsible stewardship of collections to reckless endangerment. ... Museums hold their works in trust of the public. PAFA has now failed the public trust."

Tyler Green was first on the scene yesterday. Carol Vogel has a report in the New York Times this morning.