Programming Note

Blogging will be light to non-existent over the next couple of weeks. Things will be back to normal around here the week of July 9.

In the meantime, I leave you with this lengthy piece by Arthur Lubow in today's Sunday Times Magazine about one of the central fronts in the cultural patrimony wars: the government of Peru's demand that Yale University return thousands of objects that were taken from Machu Picchu in the early nineteen hundreds.

Barnes Offer Rejected

As expected, the Barnes Foundation has turned down the last gasp offer by Montgomery County to keep it from moving. The chairman of the Barnes "rejected the proposal Monday in a letter to a lawyer representing the county, saying the foundation had made binding commitments to Philadelphia to relocate .... He added that the 'decision is irreversible.'" The lawyer for the county "vowed he would continue the fight in Montgomery County Orphans' Court." The Philadelphia Inquirer has the story here. More here.

Another Gee's Bend Lawsuit

Randy Kennedy reports in this morning's New York Times that a third lawsuit has been filed involving the Gee's Bend quilters: "The great-granddaughter of a woman who belonged to a group of quiltmakers in Gee’s Bend, Ala., whose work has become celebrated in the art world, has filed suit against three Atlanta art dealers claiming that they have illegally taken two century-old quilts made by her great-grandmother. The woman, Lucinda Pettway Franklin, contends that one of the dealers, Matt Arnett, asked two years ago to borrow the quilts to have them examined and photographed for a book. But the quilts, along with another made by her mother and an aunt, have not been returned, despite requests, according to the lawsuit, which was filed on Tuesday in Alabama."

Earlier post on the previous two suits here.

"The opinion of the court provides no benefits for Fisk"

In the Nashville Scene, Christine Kreyling has more on the recent setback for Fisk University in its deaccessioning lawsuit against the Georgia O'Keeffe Museum. She calls it a "stunning, if not entirely unexpected, legal defeat":

"Fisk now finds itself in a legal straitjacket. The university can’t sell the paintings and is still facing a July trial—more legal bills—to answer the claim made by the museum that the school has violated the conditions of O’Keeffe’s gift, in particular to exhibit the collection intact. The collection has been in storage at the Frist Center since 2005, when the university determined that its gallery didn’t provide proper security or environmental controls. While the remedy the museum seeks is unspecified in the legal documents, the threat of reversion of the collection back to the museum, as the successor to O’Keeffe’s estate, looms. Fisk could lose the art ...."

If Fisk does lose the art, the Tennessee Attorney General's decision to reverse course and withdraw his approval of the settlement the parties had reached will turn out to have been a colossal blunder. Under the proposed settlement, Fisk would have ended up with more than $20 million in cash and ownership of 99 of the 101 pieces in the Stieglitz Collection. Now it seems possible the university (and the State of Tennessee) could end up with nothing at all.

"A high-profile mea culpa" (UPDATED)

Robin Pogrebin has a story in today's New York Times on the 55-page report issued yesterday by the Smithsonian's new governance committee.

Tyler Green summarizes: "It's official: The Smithsonian is pathetically mismanaged." He also offers some thoughts on what's next.

For background, see here.

UPDATE: A second, "scathing" report, this one focusing on former chief executive Lawrence Small, issued today. Story here.

A Defense of Fisk

The New York Sun editorial board comes to the defense of Fisk University in its deaccessioning battle with the Georgia O'Keeffe Foundation:

"It strikes us that Fisk is being a model of responsibility here. Only about 30 persons a day were going to see the paintings, before they were [recently] put into storage. Fisk hasn't moved to break up its O'Keeffe holdings. It is proposing to sell but two of the 105 paintings and photographs. It proposes using the sale to increase its endowment and improving its departments of math and science."

Why has the Sun taken an interest in the matter?

"The case catches our eye because the question of de-accessioning comes up now and again in New York, most recently in the dispute over Kindred Spirits. That was the painting by Asher Durand that was sold by the New York Public Library to Alice Walton. The sale created an enormous hubbub in the pages of the New York Times, which reckoned it, rather than the trustees of the Library, should decide what, if any, paintings the library ought to be permitted to sell and to whom they ought to be able to sell them and at what price."

Gee's Bend Lawsuit

Two of the Gee's Bend quilters "have sued the Atlanta art dealers who handled their work, claiming that the men and their company exploited the quilters' naivete about the art world and product licensing. The art dealers failed to properly compensate the women and the community for their work, the lawsuits say." More from the Houston Chronicle here. The Whitney Museum did a show on the quilts in 2003. Here's one review.

The Empire Strikes Back

In a post I quoted here, about the recent Marilyn Monroe decision (holding that her publicity rights had not survived her death), Anthony Falzone, director of Stanford's Fair Use Project, said, "Millions of licensing revenue stands to disappear under this decision. The beneficiaries of this windfall will not let that money go without a fight. So I expect to hear a lot more about this issue."

Well, that didn't take long. Legislation has been introduced in New York granting post-mortem publicity rights, including retroactively to anyone who died after 1938. The proposed bill is here. The New York Daily News has the story here. The AP story is here.

One of the co-sponsors of the bill is quoted here as saying, "The fact that unscrupulous quick buck artists can profiteer on a loophole in our law by selling insulting and degrading images of those who are deceased is shameful." It's hard to see what "loophole" he's referring to. The statute has always applied, unambiguosly, to "living persons" only. The Monroe decision was indeed a bombshell, but it was entirely consistent with existing New York law. Apparently something in the decision has led some lawmakers to conclude that Indiana had it right all along.

Barnes Bonds Bid

Randy Kennedy has a brief piece (fifth item) in today's New York Times on the latest bid to prevent the Barnes from moving, which I mentioned earlier this week: "Montgomery County proposed buying the foundation’s buildings and land for $50 million or more, using money that would be raised through bonds. Under the plan, interest from the money could then be used by the Barnes both to pay the bonds’ debt service and to build its endowment, allowing the art to stay put. ... A spokesman for the Barnes said that the foundation had only recently received the proposal and was not yet prepared to comment."

"I.R.S. Seeks More Charity Transparency"

The New York Times reports this morning that the IRS has "proposed a vast overhaul of the main tax form for charities, an effort to make it easier for the IRS and the public to tell how much nonprofit groups are paying their executives and how much of their money goes toward fund-raising."

More information on the redesigned form, Form 990, at the IRS website here. The deadline for comments is Sept. 14. The IRS plans to have the new form in place "in time for charities to use it to report for 2008."

Fisk Decision

A Tennessee court has ruled that Fisk University cannot sell either of the two paintings it's been trying to sell from its O'Keeffe Collection. According to an article in today's Nashville Tennessean,

"Davidson County Chancellor Ellen Hobbs Lyle agreed with the [position of the O'Keeffe museum], noting in an 18-page order that O'Keeffe donated the collection expressly for educational purposes, to be used to help Fisk students in the study of art. ... '[T]he only conclusion a reasonable person can reach,' Lyle wrote, 'is that it is the Collection as a whole, not the individual artworks, which accomplishes the educational purpose specified at the time of the donation and that the donation was not given to Fisk to use as a source of revenue…. Dividing the Collection destroys the identity and effect and the charitable purpose (of O'Keeffe's gift). Similarly selling the entire Collection converts it into a source of revenue for the University and destroys the art educational purpose.'"

The article notes that "this latest development does not end the case, which is still set for trial on July 16." I haven't seen a copy of the opinion, but it's not clear what's left to be decided at a trial. In the meantime, we can take a preliminary look at the winners and losers.

The "radical conservative" anti-deaccessionists should be happy. Fisk can't sell off any part of the collection.

Presumably the O'Keeffe Museum is happy. They brought the lawsuit to prevent the sale, and it sounds like the court handed them a complete victory.

Fisk is the big loser. They wanted to sell the two paintings and then, when the O'Keeffe Museum intervened to block the sale, they agreed to a settlement that would have yielded perhaps $25 million or more, which they apparently desperately need, only to have the Tennessee Attorney General kill the deal.

The Attorney General is a trickier case. Initially, he approved the settlement between Fisk and the museum, but later, when it became clear what a huge discount the museum would be getting on the purchase of one of the two paintings, he withdrew his approval. His most recent statement of his position was that he wanted to "to keep this collection intact," which this decision seems to do. So let's count him a winner too (which I guess means that everybody wins . . . except the university).

Incidentally, this outcome reinforces a point I made a couple months ago in response to those who were arguing that the price the museum had agreed to pay under the settlement was "too low," that, if it truly wanted the painting, "it should be ready to pay what it's worth." As I pointed out at the time, this line of argument ignored the fact that the museum apparently had -- and was agreeing to give up as part of the deal -- a very strong legal position that the sale shouldn't happen at all. As I said then, "supporters of the university may come to regret the decision to leave twenty million on the table just because it wasn't forty."

Barnes Maneuvering

A couple of last gasp moves to try to keep the Barnes Foundation from moving to Philadelphia.

First, Montgomery County made a $50 million plus bid to buy the Barnes property, which it would then lease back to the foundation. Details here.

Second, the Friends of the Barnes Foundation is trying to block the move by getting the museum listed as a historic landmark. See here.

It may all be too little too late:

"The Barnes Foundation has already received court approval for the move. With help from three foundations -- the Pew Charitable Trusts, Annenberg Foundation and Lenfest Foundation -- over $150 million has been raised for the new site, which would be on Benjamin Franklin Parkway, near the Philadelphia Museum of Art, Franklin Institute and Rodin Museum, among other institutions. The city of Philadelphia set aside a parcel now occupied by a city-owned youth detention center."

"Hard times dictate hard choices"

Roanoke Times columnist Joe Kennedy had a piece yesterday on the latest front in the deaccession wars -- the Maier Museum of Art at Randolph-Macon Woman's College, which recently announced that it was considering selling off part of its collection. Here's how he tells it:

"There is a story behind the passions, and it is not a pretty one. Attempting to preserve its mission as a college for women, the school spent too much of its endowment annually, in part by granting too many tuition discounts, [interim president, Virginia Hill] Worden said. The goal was to attract quality female students and continue operating without making cuts that might affect its academic programs. The problem, Worden said, is that the college fought the good fight for too long. It stayed one-sex while many others went coed. As a result, 'We are grappling with issues in the marketplace. ....' On July 1, the school's name will become Randolph College. In September, it will admit its first male students -- 57 of them. Those two changes hurt and angered many alumnae and others. The uproar, including opponents' charges of financial malfeasance, prompted the Southern Association of Colleges and Schools to include a financial review in a 2006 review of two new graduate programs. The review uncovered 'absolutely no evidence' of financial malfeasance, Worden said, but it found a spending rate that was too high and an operating deficit of $4.5 million last year, plus other shortcomings. ... The college was placed on warning. It has two years to improve the picture or face probation or possibly even lose its accreditation. 'We now have to make some tough decisions,' the president said. Auction houses and other entities have visited the Maier to make appraisals. The attorney general's office has been kept abreast of developments."

Speaking of the attorney general, Lee Rosenbaum got a statement from his office:

"Traditionally, the role of this office in such situations is limited. In Virginia the Office of the Attorney General has two basic functions when it comes to charitable trusts. We ensure that they are handled legally, and that any proceeds from properly conducted transactions remain in the Commonwealth. This is quite different from the role that attorneys general in a small number of other states (New York, for example) play in charitable trusts, which is far more active."

Cathedral Copyright

The New York Times today mentions (second item) that "the Church of England, accusing Sony of 'virtual desecration,' called on the company yesterday to apologize and withdraw a PlayStation computer game that depicts a shootout in the nave of Manchester Cathedral." Much more here, from a U.K. legal perspective. Professor Patry provides the U.S. perspective: "Under U.S. law (and it should be noted, the game was made in the U.S.), the cathedral wouldn't be protected at all since it was constructed before 1990." But even if were covered, Sony would probably be safe under Section 120(a) of the Copyright Act:

"(a) Pictorial Representations Permitted. — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place."

Final Tally

With the full series of auctions now complete, the final take for the Albright-Knox from its recent deaccessioning comes to around $67 million:

"Prior to the auctions, the Albright's endowment was just under $60 million with both restricted and unrestricted funds. Funds restricted for purchase of works of art was between $22 million and $23 million -- a figure that now grows to nearly $90 million with the proceeds of the auctions. The gallery is restricted to 5 percent of a rolling three-year average of interest income for purchase of new art."

Lee Rosenbaum's reaction: "deplorable."

Raiders of the Lost Art

A few months ago I posted about a Norman Rockwell painting that turned up in Stephen Spielberg's collection 30 years after it was stolen from a St. Louis gallery. Now comes news that not one, but two lawsuits have followed: (1) Jack Solomon, the owner of the gallery from which the painting was stolen in 1973, has sued both Spielberg and the FBI in federal court in Nevada, and (2) Judy Goffman Cutler, a Rhode Island dealer who sold the painting to Spielberg in 1989, has filed a separate federal suit in New York against Solomon and the Art Loss Register Inc., which has apparently been helping him in his efforts to recover the painting. The Wall Street Journal had the story a few weeks ago, and last week the St. Louis Riverfront Times had much more. The Riverfront Times story is long and wild (the subhead is: "Steven Spielberg's stolen painting, a St. Louis art thief, and a plot to kill Martin Luther King. It could make a helluva movie"), but it seems to me that very little of it sheds much light on the legal claims at issue. Some very general thoughts on those claims, recognizing that there may well be much more to the story than we have so far been told:

1. The basic rule at the heart of the case -- that "you can't get good title from a thief" -- seems to favor Solomon, from whom the work was stolen in 1973. But nothing is ever that simple, and there were at least two complicating factors that jumped out at me from the article.

2. The first was Goffman Cutler's claim that Solomon's insurer paid him $25,000 for the artwork following the theft. If this is true (the Riverfront Times story also reports it as a fact), it may well be that Solomon gave up the right to make a claim (presumably the insurance company would have acquired the right when it paid Solomon's insurance claim).

3. The other issue is timing: It's not clear which state's law will apply here, but many jurisdictions have some variant of the rule that the statute of limitations starts to run when a claimant reasonably should have discovered the identity of the "wrongful" possessor of the work. The Riverfront Times talks to Mary Ellen Shortland, who was the assistant director of the gallery at the time of the theft. Sixteen years later, "she was flipping through the July/August 1989 edition of the trade magazine Art & Auction when she came across an advertisement announcing the sale of [the painting]." She says she tried to call Solomon "but was unable to get through." Her inquiries "were later chronicled by former Riverfront Times reporter Wm. Stage in the October 11, 1989, issue of [the] paper. Stage wrote that he also attempted to get in touch with Solomon to no avail." Does all of that add up to Solomon reasonably should have discovered the painting had been located in 1989?

I guess we'll soon find out.

Barnes Legal Strategy Taking Shape

So remember when the Montgomery County Commissioners invited "proposals from law firms to explore legal strategies and options" to keep the Barnes from moving? As I mentioned last week, Bryn Mawr lawyer Mark Schwartz got the job, and today we learn what his strategy will be:

"Schwartz said he would file a petition in the next few weeks asking Judge Stanley Ott to review his decision authorizing the Barnes' relocation against the directives of its deceased founder, Albert C. Barnes. The appeal will be based on 'new information' showing that politicians, private interests and the Barnes' board of directors worked together to undermine Barnes' wishes as outlined in the trust he left behind, Schwartz said."

According to the Philadelphia Inquirer, not only was Schwartz's the winning proposal -- it was the only proposal, which probably is the best indication yet of what a longshot this is.

Fort Knox

The controversial Albright-Knox deaccessioning continued today, with some result:

"An important, 2,000-year-old Roman bronze of Artemis, goddess of the hunt, brought $28.6 million this afternoon at Sotheby's in New York, becoming both the most expensive antiquity and piece of sculpture from any period to sell at auction.

...

"Albright-Knox has offered 207 artworks and objects to be sold in a series of auctions at Sotheby's this spring. Today's sale brings the Albright-Knox total to $72.8 million. ...

"The Albright-Knox lots at today's auction, which all sold, tallied $40.6 million, far exceeding their $9.3 million high estimate. ... Dealers said that pristine ownership history made the Albright-Knox works even more desirable, especially at a time when the antiquities field has been mired in legal battles over artworks with murky histories."

Said Tom Freudenheim, who led the unsuccessful campaign to block the sales (see here): "Good for the museum that they are going to end up with a zillion dollars to spend on overpriced art.''

More from the Buffalo News here.

Settlement in the Brooklyn College Lawsuit (UPDATED)

Tomorrow's New York Sun will have this report:

"The city yesterday [promised] to pay $750 to each of the 18 art students and a professor who had participated in an exhibit the city closed last year at the Brooklyn War Memorial ... The payments and an apology settle a First Amendment lawsuit brought by the students, charging city officials with censorship. The exhibit, put on by master's degree candidates at Brooklyn College, included a sculpture of a penis and a separate piece containing a written narrative describing a sexual encounter with a man named Dick Cheney. One day after the display opened in May 2006, the Brooklyn parks commissioner ... locked the doors to the War Memorial, which Brooklyn College students had used as an exhibit space."

The Sun's lede is that the city "backed down," though a less than $15,000 settlement doesn't strike me as much of a capitulation. (On the other hand, there may be something to the students' lawyer's point that the apology might serve to "create a government consciousness not to do this again.") The article also sees the resolution as evidence that "the Bloomberg administration is pursuing a more conciliatory path when accused of censorship than had the [Giuliani] administration," but, as noted in this post from last year, Mayor Bloomberg strongly defended the city's actions at the time: "Nobody's suggesting that anybody shouldn't be allowed to exhibit art. The issue here is this is not a museum. This is a war memorial. There has been an understanding ever since art was put here that the art would be appropriate for families and respectful of and appropriate for a war memorial and this time it was not."

UPDATE: The New York Times has a brief piece this morning. One thing I missed last night is that the city also agreed to pay $42,500 in legal fees to the students' lawyers, so, at $57,000, the settlement starts to look a little more capitulatory. There's also an editorial in today's Sun which begins: "It's hard to recall a more abject show of weakness in city government in recent years than the decision of the Bloomberg administration to apologize for closing an 'art' exhibit of pornographicalistic political commentary against our wartime leaders that Brooklyn College students had mounted inside the city's war memorial in Cadman Plaza park."

"21st century I.P. madness"

Tim Cavanaugh, web editor of The Los Angeles Times' editorial page, had an opinion piece yesterday on Carol Shloss's lawsuit against the Joyce estate (which I posted about, most recently, here). He says the case "sheds light on an ironic, and maybe inevitable, trend in intellectual property: As copyright becomes harder to defend, many copyright holders are becoming less realistic about the limitations of their ownership."

Lost

An interesting Second Circuit decision last week involving the valuation of lost photographs. Photojournalist Arthur Grace's licensing agent, Sygma, lost more than 40,000 of his images. The question in the case was how to value the loss. The District Court decision, by Judge Chin, after rejecting "the industry's liquidated damages standard of $1,500 per lost transparency" because it would have led to the "absurd result" of a $60 million verdict, awarded Grace a total $472,000, composed primarily of $100 per image for 4,000 images (what Chin called "selects") and $1 an image for the other 36,000. The Second Circuit wasn't pleased with that methodology and so vacated the award and remanded for a new assessment of damages, "suggest[ing]" a methodology that focuses more on the present value of the future lost earnings from the missing photos. The decision is here. David Walker points out that the digital revolution may mean that this decision will end up being of largely historical interest.

"Hey Louie, I know where your painting is. Get a lawyer"

Long (and I mean long) story in the Hartford Courant this weekend about a painting bought for $3 at a tag sale that turned out, 30 years later, to be a John Singer Sargent worth more than $6 million. Mental illness, lawsuits, use of the word "stugots," it's all there. The Cliff Notes version is here. You can see the painting here.

ARIS Again

Yet another article on ARIS Corp. and its efforts to market title insurance for art -- this one in the Wall Street Journal Online -- even though they still haven't written a single policy ("though some major candidates are pending"!). Previous appearances by ARIS here, here, and here. For the reasons described here, I remain skeptical.

Graffiti Art Copyright Dispute

The New York Times today reports on a dispute between a number of graffiti artists and a photographer who put out a book that depicted their work without permission. The publisher of the book, University Press of Mississippi, has removed the book from its catalog.

A lesson in how to handle criticism

From Frank Gehry.