Sleazebags

Ed Winkleman (who's a dealer himself) posts today on "sleazebag art dealers" and what to do about them. I'll just point out that, in New York, the relevant statute is § 12.01 of the Arts & Cultural Affairs Law, which provides that, when an artist consigns work to a dealer, the work is considered "trust property" in the hands of the dealer for the artist's benefit and, likewise, any sales proceeds are held as "trust funds" for the artist.

That's what Friends are for

Lee Rosenbaum reports that the Friends of the Barnes Foundation has established a legal defense fund for donations supporting its upcoming lawsuit seeking to prevent the museum's move to Philadelphia. Lee quotes the following review of the legal state of play from the solicitation materials:

---The Montgomery County Board of Commissioners is joining us to reopen the Barnes matter in Orphans' Court.
---Montgomery County offered the Barnes Foundation a $50-million leaseback arrangement.
---Lower Merion passed a zoning resolution that will allow up to 140,000 people a year to visit the Barnes.
---We have sponsored an evaluation of the Barnes for National Historic Landmark status, which is supported by the district's U.S. Congressman, Jim Gerlach.
---Pennsylvania State Representatives Mick Gerber, Daylin Leach, and Connie Mandarino have all declared themselves in support of the Barnes Foundation remaining in Merion.
---Our attorney, Mark Schwartz, has prepared an excellent case and we believe this time our petition will be heard fully with all the facts presented. The petition will be filed in a few days.

As Lee points out, however, the Orphans' Court has already ruled in the Barnes favor and "overturning that decision is a longshot." Or, as Harvard law professor Bruce Mann has put it, "There's no part of the judicial system that permits do-overs years after an issue has been adjudicated just because someone steps up and says, 'Hey, I have an idea.'"

The Gee's Bend Lawsuits

Shaila Dewan has a story in today's New York Times on the Gee's Bend quilt lawsuits, mentioned earlier here and here. She summarizes the lawsuits as follows: [1] "two of the quilters, Loretta Pettway and Annie Mae Young, filed lawsuits against [Bill] Arnett and his sons, saying they had been cheated out of thousands of dollars in proceeds from their work and copyrights" and [2] "a third lawsuit, brought by Lucinda Pettway, a resident of Mobile, Ala., whose forebears lived in Gee’s Bend, accused the Arnetts of refusing to return two of the community’s oldest quilts, dating to slavery times. The Arnetts have since returned the quilts, but say an appraisal showed that they were not nearly that old and were worth less than $500."

Dewan's bottom line take:

"The story line — poor, uneducated black women swindled by 'scheming Atlanta businessmen,' as one newspaper article called the Arnetts — was juicy enough to be front-page news in the South. The reality, though, is more nuanced. The vast majority of the quilters remain satisfied with the Arnetts (there were works by 22 living quilters, including Ms. Pettway and Ms. Young, in the most recent museum exhibit)."

The PropertyProf is interested in the way the quilters' overall business is organized:

"The quilters’ collective, an informal group of about 40 members, pays $150 a month to rent a former day care center marked by a small, hand-painted sign, where one room is stacked floor to ceiling with quilts. Small quilts go for $200 to $1,000, while bed-sized ones are priced at $950 to $7,500. When a sale is made, half the money goes to the quilter and half to the collective, which periodically disburses dividends to all members. Royalties from reproductions of the quilts go into the foundation, which now contains $147,000. The system was designed to forestall jealousy, protect elderly quilters who can no longer sew, and acknowledge the interdependent nature of the community, where many quilters are related and styles were handed down from mother to daughter."

Update on Proposed NYC Photography Rules

The New York Times reported yesterday on the campaign against the recently proposed City rules (mentioned earlier here and here) that would require anyone wanting to photograph or film in public places to get a permit and a million dollars of insurance. The campaign is being led by a "newly formed advocacy group" called Picture New York; their website is here.

The public comment period ends next Friday. The New York Civil Liberties Union says "the rules they are proposing are unconstitutional" and "we will sue if they adopt them."

"A wonderful yarn of fiction" (UPDATED)

Sergio Munoz Sarmiento on MASS MoCA's reply to Büchel’s counterclaims.

UPDATE: More from Sergio here: "the first fact that must be understood is that there was no written agreement between the museum and Büchel, which clearly indicates the availability of a legal structure in which this fiasco could have been avoided. Simply put, what MASS MoCA and Mr. Thompson should have done to protect their monetary investment is what any first year law student learns during the first week of law school. That is, draft an agreement. This is especially true when one of the parties (in this case the museum) is in a higher position of power and in a position to know better."

Going Hollywood

The story of John Myatt -- "the man believed to be the world's most-prolific art forger" -- is coming soon to a theater near you. Clive Owen will play Myatt; George Clooney will play his accomplice, John Drewe. "Myatt and Drewe were convicted of fraud in 1998 and sent to prison. Myatt, who promptly admitted his guilt and repented, served only four months in jail and has become a celebrated figure in the art world. Drewe still professes his innocence, after serving a six-year sentence." Full story here.

ICA Lawsuit

Geoff Edgers reports in The Boston Globe that "the construction company initially charged with building the Institute of Contemporary Art ... has sued the museum for $6.6 million after being bounced off the project months before it was due to open."

"The image of a celebrity is not something the public can use generally"

So says California State Sen. Sheila Kuehl, who's leading the charge to broaden the state's postmortem right of publicity statute to apply to those who died before 1985 (when the current statute was adopted). The Senate Judiciary Committee voted 10-0 last month to recommend Kuehl's bill to the full Senate. Full story in today's Los Angeles Times here. Kuehl is a former TV star herself.

Kissing Bandit

From The New York Times this morning:

"... Sam Rindy, 30, a Cambodian-born French artist, will have to appear in court to face charges of criminal damage, Agence France-Presse reported. Ms. Rindy left the imprint of her lipstick on the otherwise immaculate white canvas that is an untitled work by the American artist Cy Twombly at 'Blooming,' an exhibition of his works ... at the Collection Lambert in Avignon, France. Ms. Rindy said she was so overcome by the 9-by-6-foot work that she had to kiss it."

Archives for Sale

Robin Pogrebin has a story in tomorrow's New York Times about "a small but influential number of celebrity architects who are considering selling their archives — which can include tens of thousands of objects, from multiple large-scale models and reams of drawings to correspondence and other records — even as they continue to practice." Frank Gehry is apparently looking for a sale in the "multimillion dollar" range; Peter Eisenman has already sold his "for an undisclosed amount" to the Canadian Center for Architecture in Montreal and is currently "negotiating with the Beinecke Library at Yale University over some of his collected books and magazines." In 2005 the Getty acquired the archive of Modernist architect Pierre Koenig -- consisting of more than 3,000 objects, including drawings, models, photographs, slides, and documents -- from his widow, also "for an undisclosed amount."

The story points out that archives are donated more often than sold, "because the institutions that covet them do not have large acquisition budgets and the priority for donors is usually simply to see that their material finds a suitable home." Robert A.M. Stern has donated his archives to Yale, as have Kevin Roche and Cesar Pelli.

Latest Last Gasp

Saturday's New York Times had a report on the "latest attempt" to keep the Barnes Foundation from moving:

"[Lower Merion] has passed a zoning ordinance that would more than double the visitors allowed each year .... The Lower Merion Township Board of Commissioners passed the zoning change on Wednesday, but the Barnes’s executive director, Derek Gillman, said that the new rules, while helpful, were not enough to keep the collection from moving. 'It will not come close to providing the additional revenue sources that are essential to the financial health of this and all not-for-profit educational institutions,' Mr. Gillman said in a statement."

The Times also reminds us of the previous latest attempt:

"Last month, Montgomery County proposed buying the foundation’s buildings and land for $50 million or more, using money that would be raised through bonds, but the Barnes rejected the offer."

I'll let you know then the next latest attempt gets rejected.

Relatedly, Randy Kennedy had a nice profile in today's Times of "one of the last living links to the eccentric origins of the Barnes," 90-year old painter Harry Sefarbi, who's been there for 54 years. Sefarbi testified in court against the move, "arguing that it would be a 'complete betrayal' of the institution and of Barnes."

Berry-Hill Update

It's been about a year since we had any news about the Berry-Hill Galleries bankruptcy proceeding. Carol Vogel's Inside Art column Friday had an update. For one thing, the gallery building is still on the market, now priced at $28 million. She also reports that "all but a handful of unresolved claims have been paid" and "the rest are expected to be paid by the end of the summer." The gallery says it does not plan to close up shop: "We have a lot of interesting plans."

Update on the California Marilyn Monroe Bill

Photo District News has an update on the status of the California post-mortem publicity rights bill:

"The ... bill has not passed and almost certainly won't in the near future. The California legislature is scrambling to hammer out a budget with just two days left in the legislative session, which typically gets extended only for the purpose of passing a budget. A source in the office of California Sen. Sheila Kuehl, the lawmaker who introduced the bill, confirmed that the Senate was unlikely to vote on this bill before a budget is passed, and that the legislature will likely adjourn when that happens. The bill would need to pass both legislative houses and be signed by Gov. Arnold Schwarzenegger before becoming law."

The War on Graffiti

USA Today has an update on the criminal case against Alain Mariduena (AKA KET), mentioned earlier here, and says:

"The case is part of a new war on American graffiti, that long-controversial hybrid of art and vandalism. But fans and critics agree on this much: Never has so much been done to fight graffiti, and never has there been so much of it."

Comment Period Extended

The New York Times reports that New York City has extended the comment period on proposed photography rules (mentioned earlier here) that would require a permit and proof of $1 million in insurance for any group of (a) two or more people filming in one location for 30 minutes or (b) five or more people using a tripod camera for more than 10 minutes. The original deadline was June 27, but it's been extended to Aug. 3.

Glenn Reynolds and Ann Althouse got their comments in on time.

Scene From a Mall

The Seattle Times reports on a theft of two Picasso etchings from a gallery in the Bellevue Square shopping mall last week:

"The ... art heist took just minutes. The woman distracted the salesperson with a question on the merits of a piece conveniently located at the far end of the gallery. The two men, meanwhile, lifted the Picasso etchings from the wall and strolled out into the airy mall. One of the men reportedly was on his cellphone the entire time. The gallery employee didn't immediately notice the theft. By the time the police were notified, the trio had long since blended into the sea of shoppers ..."

Derek Fincham comments:

"The most likely scenario is that a subsequent purchaser who didn't know about the works' tainted past will end up in a dispute with the gallery or the insurance company if the gallery was able to insure the works. The Seattle piece says 'unscrupulous art collectors have few qualms about purchasing stolen pieces for their private collections.' I think that may be over-stating the case a bit. In most situations the ultimate litigant is a buyer who was unaware a work had been stolen. This is why buyers should always consult organizations like the Art Loss Register before every significant purchase, and provenance should be thoroughly researched."

Update on the Artist Deduction Bill

Americans for the Arts has an update on the status of the Artist-Museum Partnership Act, discusssed earlier here:

"The Artist-Museum Partnership Act (commonly known as the 'Artist Deduction bill') has been gaining co-sponsors since it was re-introduced earlier this year. The House bill H.R. 1524 introduced by Reps. John Lewis (D-GA) and Jim Ramstad (R-MN) now has 50 co-sponsors. Additionally, the Senate bill S. 548 introduced by Sens. Patrick Leahy (D-VT) and Robert Bennett (R-UT) has 23 co-sponsors. The legislation supports individual artists by allowing them to take a fair-market value tax deduction for tangible works they donate to nonprofit collecting and educational organizations, and it benefits the public by giving them access to more art. Many of the cosponsors are legislators who sit on the tax-writing committees, which would demonstrate a real interest in approving this legislation."

Cellphones and stolen art (UPDATED)

David Nishimura notes this Discovery News story on the development of cellphone technology that could help identify stolen art (mentioned earlier here):

"A cell phone picture could be worth a million dollars — particularly if it's a snapshot of a piece of stolen art.

"A new software tool plays detective by automatically comparing cell phone photos with images in a database of stolen art. The technology could help restore stolen goods to their rightful owners and solve the hundreds of art theft cases opened each year in the United States alone.

...

"For now, the system works on paintings, carpets and coins, but the researchers already have plans to go beyond those.

"'Extensions are on the way to make the system suitable for thee-dimensional objects. These extensions will cover sculptures as well as three-dimensional objects in general,' said Bertram Nickolay, head of the department Security Technology at the Fraunhofer Institute in Berlin, Germany."

Nishimura's take:

"Sounds like a pretty simple and practicable idea, patching together well-established technologies. Take a database of images of stolen artworks, and search it using other images and a pattern-matching application. You'll end up with some false positives, of course, but as long as the matching algorithm is reasonably sophisticated, you should still have a useful tool for flagging possible problem paintings for further investigation."

UPDATE: Derek Fincham also likes the idea, but says "the problem of course is which database to check. At present there are a number of different theft databases. The largest and most successful is the Art Loss Register. However that site is not accessible to the public at large. You have to pay for and request the ALR to conduct its own search of its data. ... [A]s I've argued before, the first company which figures out how to make a simple, universal and easy-to-use database will really stand out, and will also really help to legitimize the art and antiquities trade generally. Until such a database exists though, we will continue to see good faith purchasers buying stolen or illicitly excavated works leading to the classic art law dispute between an original owner and a good faith purchaser."

Fisk Trial Delayed

The Fisk-O'Keeffe trial, which was supposed to begin next week, has been postponed until Sept. 18. Jonathan Marx summarizes the current state of play in The Nashville Tennessean:

"[The Court] has already ruled that Fisk cannot sell Georgia O'Keeffe's Radiator Building — Night, New York or Marsden Hartley's Painting No. 3, both of which were donated to the school by painter O'Keeffe in 1949 as part of the Stieglitz Collection. ...

"The trial will address the claim of the O'Keeffe Museum ... that Fisk University has violated the conditions of O'Keeffe's gift to the school — and therefore the entire Stieglitz Collection should go back to the museum.

"'As a matter of general law, when a gift with conditions is breached, one of the remedies is that the gift gets returned to the giver,' said Saul Cohen, president of the board of the O'Keeffe Museum. 'That's a standard remedy: reversion. Another possibility is damages.'"

My most recent post on this matter is here.

Hedge Funds Expanding Into Art

The New York Times had a story yesterday on how hedge funds are expanding into investments beyond stocks and bonds ... including art. As I've discussed in previous posts (e.g., here), the jury is still out on art investment funds, but the article suggests that investors might be willing to absorb some extra risk "in exchange for some fun and a lively dinner party conversation. In June, Mr. Hoffman [of London's Fine Art Fund] invited investors in one of his art funds to Geneva to admire and discuss some Picasso and Ed Ruscha paintings over lunch. ... [I]nvestors in WMG’s photography fund will get the first right to buy any prints in the fund." One investment manager is quoted as saying, "It’s really as much a lifestyle thing as an investment."

The Red Elvis Case

Still catching up on things that happened when I was away, I should note that the Connecticut Supreme Court upheld a lower court ruling that Peter Brant is the rightful owner of Warhol's "Red Elvis," which he paid $2.9 million for in 2000 but, according to this New York Daily News story, is now worth "as much as $25 million."

The work was owned by Kerstin Lindholm, who bought it in 1987 for $300,000 from a Swedish dealer named Anders Malmberg, with whom she'd had a longstanding business relationship. In 2000, claiming to have bought the work from Lindholm, Malmberg sold it to Brant. In 2001, Lindholm learned of the unauthorized sale and demanded that Brant return the work to her. He refused, and the lawsuit ensued.

In response to the decision, a friend emailed: "Can you explain why we're not seeing the obvious ruling, i.e. Brant is required to give this painting back to Lindholm and Malmberg is required to give Brant his money back? This case has never made sense to me."

Well, for one thing, according to the Daily News, "no one can find where [Malmberg] hid or spent the nearly $3 million." If that's true, requiring Brant to give the painting back to Lindholm would mean that he's out $3 million.

Leaving that aside, the explanation for the result lies in the concept of entrustment. The basic rule is of course that you can't get good title from a thief. Malmberg was in essence a thief here (the decision mentions in a footnote that "in March 2003, the Swedish court convicted Malmberg of gross fraud embezzlement," and the Daily News story says he "went to jail"), so it's tempting to wonder how Brant could have acquired good title from him. The answer is that when one party entrusts goods to another party (as Lindholm did to Malmberg here), the entrustee can (under certain circumstances) transfer good title, regardless of any conditions expressed between the parties and even if the entrustee's actions are criminal.

What are the circumstances under which good title can be conveyed? First, that the entrustee is a "merchant" who deals in goods of the relevant kind (which Malmberg clearly was here). And second, that the sale is to a "buyer in the ordinary course of business" -- i.e., someone who buys "in good faith" and without knowledge that the sale violates anyone's rights (which Brant was found to be here; the basic idea was that, under the circumstances, it was reasonable for Brant to believe that Malmberg really was the owner of the work).

The basic rationale for this rule is that where the entruster and the buyer are both "innocent," the loss should fall on the former, since she's in a better position to avoid the loss (by not putting the work in the hands of the dishonest middleman).

An AP story on the decision is here. The U.C.C. entrustment provision, § 2-403(2), is here. The Connecticut Supreme Court decision is here.

Rarefied AIR

This week's New York magazine has a piece suggesting that New York City "appears to be" stepping up enforcement of Soho's artist-in-residence laws:

"In 1977, Soho, and Noho, were zoned for 'joint living-working' spaces, meaning properties there are for so-called artists-in-residence (AIR) only. ... It’s a little-known fact that to live in a loft in most Soho buildings, at least one loft resident has to be certified by the city as an artist. In typical New York fashion, the vetting process is byzantine, requiring individuals to be engaged in the 'fine arts'; to demonstrate a 'serious, consistent commitment' to their art; and need a large space."

According to the article, "brokers say that until recently, there was no real reason to worry," but "as more co-ops bring their properties up to code or convert to condominiums, enforcement appears to be stepping up" and "apparently, there are more than a few co-ops under Department of Buildings scrutiny for AIR-related violations." (A DOB spokesperson says, “The law has not changed, nor has our enforcement of the law. We continue to enforce the AIR regulations as we always have.")

No do-overs

This AP story on Montgomery County's last-ditch effort to keep the Barnes from moving to Philadelphia includes the following from Harvard lawprof Bruce Mann:

"The commissioners don't have standing to sue, and too much time has elapsed, he said. 'There's no part of the judicial system that permits do-overs years after an issue has been adjudicated just because someone steps up and says, "Hey, I have an idea,"' said Mann, who has followed the Barnes case. 'The fact the county is weighing in so long after the fact is just bizarre.'"

Tom Infield has much more in today's Philadelphia Inquirer (including a fresh quote from Mann, who now hedges his bets, if ever so slightly: ""I would think it is low probability, but it has been such a crazy case for years that it can't be ruled out").

Both stories also mention the latest plan by Congressman Jim Gerlach to block the move: "Meanwhile, Rep. Jim Gerlach, R-Pa., said Monday he has asked the Interior Department whether it is possible to designate the Barnes Foundation's Lower Merion campus a national historical landmark, even without the consent of the board. Such a designation would block the foundation from moving, he said." This is Gerlach's Plan B; Plan A was discussed here.

"City May Seek Permit and Insurance for Many Kinds of Public Photography"

Another story from over the break: New York City is considering new rules that "would require any group of two or more people who want to use a camera in a single public location for more than a half hour to get a city permit and [$1 million in] insurance. The same requirements would apply to any group of five or more people who plan to use a tripod in a public location for more than 10 minutes, including the time it takes to set up the equipment."

Glenn Reynolds pronounces it the "dumb idea of the week." Ann Althouse says it's "idiotic."

Gee's Bend News

The latest news in the Gee's Bend lawsuits is that the federal court judge in the third of the three lawsuits is trying to determine the value of the two quilts at issue (which were recently returned to the plaintiff) in order to figure out whether the $75,000 threshold for diversity jurisdiction has been met.

You say "ransom," I say "a more comfortable distribution of resources"

Carol Vogel's latest Inside Art column reported that the Metropolitan Museum was the buyer -- for $3.18 million, or more than 12 times Sotheby's high estimate -- of one of the antiquities recently deaccessioned by the Albright-Knox.

Lee Rosenbaum finds it "distressing that such a heavy ransom must be exacted from a public institution to rescue what should never have left the public domain in the first place." But why not, instead, see it as the kind of mutually advantageous trade between public institutions that we ought to encourage more of (Fisk-O'Keeffe is another example that comes immediately to mind)? As Adrian Ellis put it in a piece on deaccessioning a couple years ago:

"One approach that respects the intentions underpinning the current position on de-accessioning whilst allowing for a more balanced allocation of resources might be for the museum community to see itself more as just that – a community – and allow for a more comfortable distribution of resources between cash poor asset rich institutions and asset poor cash rich ones, allowing them to trade to mutual advantage."

The piece went on view in the Met’s Ancient Near-Eastern galleries on Friday.

Marilyn Monroe News

In other news from while I was away, the proposed N.Y. legislation to grant post-mortem rights of publicity did not make it through before the summer recess. See here. I suspect we haven't heard the last of it, however.

A similar bill is currently making its way through the California legislature.

More Machu Picchu

Before the break, I mentioned Arthur Lubow's fascinating New York Times Magazine article on the battle between Peru and Yale over certain Machu Picchu artifacts. JL at Modern Kicks wonders what legal arguments "Yale might employ in the face of what seem like compelling Peruvian arguments." Since, as Lubow points out, "if the case winds up in the United States courts, its disposition may be determined by narrowly legalistic interpretations of specific Peruvian laws and proclamations," I'm afraid I can't be of much help there, but I can point you to Derek Fincham, who's the go-to guy on all cultural property matters. He finds the following recent offer by Yale to settle the dispute "a fair compromise which would be a win for both sides":

"Yale offered to send back 'the museum-quality (that is, whole) objects excavated by Bingham at Machu Picchu' for display in a 'state-of-the-art museum exclusively dedicated to Machu Picchu' that would be opened in Cuzco in collaboration with Yale on the centennial anniversary of Bingham's 1911 discovery of the site. To help raise money for the museum, Yale would resurrect its touring exhibition, which ... would end up permanently in Cuzco. This represents a significant concession over Yale's past proposal to divide possession of the approximately 300 display-worthy objects. The research collection, however, would continue to reside in New Haven. ... In other words, Peru's pride will be assuaged if Yale's research needs can be met. Whether Peru will consent to those terms - indeed, whether the ... government is at liberty to do so, legally or politically - is uncertain."

"What the Massachusetts Museum of Contemporary Art has done in response to the Christoph Büchel mess is sad, dumb, and shameful" (UPDATED)

That's the lede from Boston Globe art critic Ken Johnson's piece in today's paper.

It closes:

"Obviously, Mass MoCA's faith in the artist and his process was sorely tested. But does that warrant exacting revenge by turning his project into a show that misrepresents, dishonors, vilifies, and even ridicules him? A show that admits no responsibility for the project's failure on the museum's part and that affirms popular perceptions of our most innovative contemporary artists as frauds and charlatans?

"I don't think so."

UPDATE: Time magazine's Richard Lacayo agrees: "The museum's decision to (sort of) exhibit Buchel's installation in half finished form has always struck me as not so much a reasonable curatorial judgment call as an institutional temper tantrum ...."