"Art is anything you can get away with"

An interesting VARA case out of Illinois, where the Chicago Park District was found liable for destroying Chapman Kelley's "Wildflower Works I" -- a 66,000-square-foot plot of 45 different kinds of flower species. The city apparently argued that the work did not qualify for protection under VARA, but the court rejected that argument. Damages still to be determined. Story in the Chicago Sun-Times here.

The (Art Law) Week

The New York Times "Week in Review" section today is an all art law edition, featuring the Fisk story among others. See here (click on "Arguing Over Art").

Barnes Date

Judge Ott has set an Oct. 19 hearing date on the recent petitions filed by two groups (one, two) opposing the Barnes Foundation's move to Philadelphia.

“He seemed pretty drunk, especially compared to the guy putting him in the cab”

The Aspen Art Museum is being sued under Colorado's "Dram Shop" law for allegedly serving alcohol to a guest who later was arrested for assaulting a local cab driver and making off with his cab. The museum says the claim is meritless because it merely rented out its space to a private group for a party. Full story (including mug shot) in the Aspen Times.

"Liquidity Crisis"

Lindsay Pollock and Philip Boroff have a report at Bloomberg.com on "at least 15" lawsuits that have been filed against Salander-O'Reilly Galleries in the past year. The Maine Antique Digest has been following the story for a while.

He moved them, alright

From this morning's New York Times:

"A mover hired by the city to empty the apartment of a man who died without a will was sentenced in State Supreme Court yesterday to five years’ probation for stealing two sketches by Pablo Picasso. The mover, Nahum Kohen, 39, of Queens, admitted that he took the drawings ... from the home of the man, William Kingsland, after he died in March 2006. Mr. Kohen was hired by the Manhattan public administrator to move Mr. Kingsland’s belongings to a warehouse. ... [A] spokeswoman for the Manhattan district attorney said the Picassos were recovered undamaged."

Previous post on Kingsland/Melvyn Kohn here. I'm still looking forward to the movie.

Dismissed (UPDATED)

From the New York Law Journal:

"Allegations that a prominent Manhattan art dealer appraised a painting by Paul Gauguin at millions of dollars above its value without revealing that the dealer had an 'ownership interest' in the piece have been dismissed."

The decision, by State Supreme Court Justice Emily Jane Goodman, is here. The facts are odd. The plaintiff was informed by an Amir Cohen that the painting was available and, interested in buying, "requested Cohen to procure an appraisal." Cohen recommended Guy Wildenstein, who then provided a written appraisal to Michel Reymondin, "a non-party to this action whose relationship to plaintiff and the transaction at issue in not disclosed in the complaint." Wildenstein appraised the painting at $15-17 million, allegedly without disclosing that his gallery once owned the painting. "The complaint alleges that plaintiff received the Appraisal ..., but does not state how it obtained the Appraisal from Reymondin." Plaintiff paid $11.3 million for the painting, which it then tried to sell at Christie's, but it failed to reach its $12 million reserve. The lawsuit followed, but the claims all failed because there was no relationship between plaintiff and Wildenstein -- the appraisal was obtained by the mystery middle man, Reymondin.

UPDATE: The story gets The New York Post headline treatment: "Art Dealer Easels Out Of Lawsuit."

Now you tell us?

So, as everyone's probably heard by now, MASS MoCA finally decided that maybe it's not such a great idea to exhibit an artist's unfinished work against his wishes after all. You can read all about it in Geoff Edgers's page 1 story in today's Boston Globe.

Let's leave the reckoning of the damage done to artists' rights for another day, and return to our regularly scheduled programming. Like what's in the best interests of the people of the State of Tennessee. Theo Emery has the latest on the Fisk University story in today's New York Times: the school's board of trustees has "agreed in principle" to share ownership of the collection with Alice Walton's Crystal Bridges Museum in exchange for $30 million. The deal is subject to approval by the Chancery Court. More from Callen Bair here. Lee Rosenbaum has a statement from the Tennessee Attorney General, including: "As we have told both institutions, a significant factor in our evaluation will be whether a reasonable alternative emerges that would allow the Stieglitz Collection to remain [in Tennessee] on a full-time basis." I posted some thoughts on the comparative merits of the Crystal Bridges offer here.

"Ponsor rejected that argument, saying an unfinished work didn't qualify for protection under the law"

That's how the Boston Globe described the Court's ruling in Springfield on Friday. (See also Tammy Daniels, iBerkshire.com: "Ponsor ... said an unfinished work doesn't qualify for protection under VARA.")

I'll have (lots) more to say on this angle in the coming days, but for now I just want to note that this is exactly the sort of thing I was referring to in my post, "The Joe Thompson Rules." The fact is that, in pursuing its "victory" over Büchel, MASS MoCA has done serious damage to the cause of artists' rights generally. As Sergio Muñoz-Sarmiento has said, "their claim that their lawsuit against Büchel will not have any negative consequences on legal protection for visual artists and their artworks is ridiculous to say the least. In summation, MASS MoCA has in effect NOT narrowed the legal decision to apply solely to Büchel, but rather guaranteed that all artists are now subject to have their artistic ideas exhibited and shown to the public in any state of completion and at any time by setting the legal and binding precedent that 'VARA does not address the display of unfinished work or the display of materials assembled for use in a work of art.'"

Still Disappointing

More reactions to Friday's ruling in Springfield.

Time Magazine's Richard Lacayo: "As I said in July, the museum's decision to display his work in unifinished state, against his will, 'has always struck me as not so much a reasonable curatorial judgment call as an institutional temper tantrum.' Nothing about Judge Michael A. Ponsor's decision has changed that for me. I find it strange that Ponsor could conclude that showing a half finished work wouldn't harm the artists's reputation. That might be true of Michelangelo's Dying Slave or the fragmentary version of Manet's Execution of the Emperor Maximilian .... But that's because we all have in our minds a pretty full picture of Manet's or Michelangelo's entire output as artists. Buchel is Swiss, and the MoCA installation would have been his first major work in the U.S. Hard as it might have been for MoCA to just suck it up and move on, that's what they should have done."

Portfolio magazine's Callen Bair: "The museum may have the law on its side, but its image has suffered a body blow, and this fiasco is likely to haunt it."

Meanwhile, we filed our Notice of Appeal of Judge Ponsor's decision this afternoon.

Disappointment

Ever since Roberta Smith's piece in last Sunday's New York Times, I've been saying that, if you can't read VARA to prevent the outrage she described, you're not trying hard enough. So needless to say, we were very disappointed by the result of Friday's hearing in Springfield. There wasn't enough time between the end of the hearing and the beginning of the holiday for me to put up a post, but, fortunately, Ed Winkleman pretty much summed up my feelings in the meantime:

"There are two very disappointing decisions behind the ruling by Judge Michael A. Ponsor, who in Federal District Court in Springfield, Mass., concluded that Mass MoCA can exhibit the unfinished work by Christoph Büchel.

"The first was the decision by Mass MoCA to take the issue to court. Fighting for the right to exhibit an unfinished work strikes me as more about the institution or its leadership's bruised egos than any higher ideal, like, say, Mass MoCA's mission. Seriously, what's the core message here? Money invested trumps artistic vision?

"As I've noted before, I'm not without sympathy for any institution that an artist targets as a patsy in a stunt or fails to live up to his/her side of an agreement with (and I'm not saying that's what Büchel did here...I'm just saying there are instances where an institution is right to fight back against an artist), but such fighting has to stop short of saying it's the institution's decision whether or not an unfinished work should bear that artist's name in the public's eye. If Mass MoCA wants to exhibit the work as a creation of their own but 'after Büchel' that's another matter (über-lame, but another matter), but to open the doors to a public, many of whom might not have followed the controversy or understand even the most prominent of wall texts explaining the context, is to willingly misrepresent the work of the artist. And yet, that's exactly what Mass MoCA went to court to claim was their right to do.

"The other disappointing decision, of course, was the legal one. I am not a lawyer, and the decision as reported seemed to be limited to the judge's interpretation of the Visual Artists Rights Act of 1990 and nothing more, but it's a hair-splitting technocratic decision that ignores the spirit of the law, in my opinion. ... How Ponsor failed to interpret the finalization of the piece before the doors can open ... as a 'modification' of the work is beyond me, quite frankly.

"Mass MoCA seems to be trying to move on now that they've won this decision ... but I'm afraid that long-lasting damage has already been done here."

Sergio Muñoz Sarmiento adds:

"This is a death-blow to contemporary artists, national and international alike. On its face, it gives a granting and/or commissioning institution the power to exhibit an artist’s art work without her/his permission unless there is a written agreement to the contrary. Theoretically, the judge’s decision eviscerates an artist’s power to dictate when the artist’s project is in a state where the artist feels comfortable and willing to put it out for public exposure. ... What MASS MoCA and its director, Joe Thompson, should realize, is that although they have been granted the legal right to show Büchel's artwork, this doesn't necessarily mean that they should. Even if they come to their senses and not continue to exhibit Büchel's work, the damage has been done. Unless appealed, the ruling now gives visual artists much less protection under the Visual Artists Rights Act, making this federal law much more useless than before."

And this from the Intellectual Property & Technology Forum & Journal at Boston College Law School: "Although they can now display Büchel’s work, with a notice that it is unfinished, Mass MoCA gains little from the win beyond a reputation for not respecting the artists it chooses to display."

We're still considering our options for appeal, so I'll leave off for now with the Roberta Smith piece I mentioned at the top. She was right that the dispute, for all its sound and fury, really came down to a simple principle:

"If an artist who conceived a work says that it is unfinished and should not be exhibited, it isn’t — and shouldn’t be. End of story."

It's a shame -- for all artists -- that the Court did not agree.

"A Small College, Painted Into a Corner"

Long story in the Washington Post today on the Randolph College deaccessioning controversy. The usual battle lines are drawn. On the one hand, "'If the arts aren't sacred at a liberal arts college, where are they sacred?' asks Laura Katzman, who resigned her tenured position in the art department in April, also in protest over the school's proposal to translate art into finance." And, on the other, "'I don't want to sell the art,' says [a member of the Board of Trustees], 'but if we don't do something, we're not going to have the college, and we won't have any art at all.'" The article does a good job of describing in some detail both the history of the collection and the financial problems the school is facing. (It mostly skips over the legal aspects of the dispute, saying only that "the school filed a circuit court motion recently asking a judge for permission to amend Smith's will to allow it to sell some of the artwork that her estate had donated to the college" -- and even that isn't strictly speaking true in that (a) Smith didn't donate "artwork" to the college, but instead funded a trust to buy artwork and (b) the school's petition asks the court to declare that the terms of the trust (not her will) already permit it to sell or, in the alternative, that they be modified to provide such authority. See here.)

There are some interesting details about the trust. The donor was Louise Jordan Smith, "an accomplished painter" who taught at the school. When she died in 1928, she left "almost everything" (about $28,000) to the school in the form of a trust to be used to "form a permanent collection of art." The college's art staff used those funds to buy 35 paintings -- now reportedly worth more than $40 million, and, in the view of a consultant hired by the school to help sort out its financial difficulties, an asset that can be "leveraged" to inject cash into the school's endowment.

Art Law AG

Lee Rosenbaum points out that attorney general nominee Michael Mukasey has an art law connection. More here from the (newly liberated) New York Times archives.

"What artist will want to work with a museum with a reputation for open hostility towards those it commissions?"

Portfolio magazine's Callen Bair weighs in on MASS MoCA's lawsuit against Christoph Büchel.

"If an artist who conceived a work says that it is unfinished and should not be exhibited, it isn’t — and shouldn’t be. End of story."

So says Roberta Smith in a piece on the front page of the Arts section of Sunday's New York Times. It begins: "When a museum behaves badly, it’s never pretty. But few examples top the depressing spectacle at the Massachusetts Museum of Contemporary Art."

Other highlights:

• "By opening this show without [Büchel's] assent, the museum has broken faith with the artist, the public and art itself."
• "Although museums still focus most of their energy on finished works ..., they now routinely function as patrons, using their budgets to help artists create works from scratch. ... [But] there are dangers, including the possibility that in controlling the purse strings, a museum starts thinking of itself as a co-author who knows what the artist wants better than he or she does."
• "Initially I felt some sympathy for Mass MoCA. ... But when the museum became set on opening the unfinished piece over Mr. Büchel’s objections, my sympathy evaporated. And when I visited Mass MoCA, my sentiments curdled."
• "[B]y opening this strange quasi display, MassMoCA does even more damage to itself and to its reputation as a steward of art and as a conduit between living artists and the public."
• "My first thought while walking among the tarps is that no one working at the museum had ever seen a finished Büchel, which would be pretty astonishing, especially since a very large Büchel installation was on view in London while things were unraveling in North Adams."
• "[T]he museum has removed the bar that was part of the Büchel piece to make way for 'Made at Mass MoCA,' a self-serving, slapped-together display of photographs of previous installations. ... Beyond that and up a flight of stairs, things get stranger still. ... On [one] wall newspaper articles and editorials about the controversy are pinned to the wall, although a scathing indictment of Mass MoCA by The Boston Globe’s art critic is absent. The museum deserves to be scathed."
• "In the end it doesn’t matter how many people toil on a work of art, or how much money is spent on it. The artist’s freedom includes the right to say, 'This is not a work of art unless I say so.'"

Do Tax Breaks for Charitable Donations Make Sense?

There's an interesting debate going on in the blogosphere sparked by this New York Times article by Stephanie Strom last week questioning whether allowing tax deductions for charitable giving is good policy. Lee Rosenbaum took issue with Strom, who responded in a comment to this Chronicle of Philanthropy post. Tyler Cowen, while conceding the system is "inegalitarian" in the sense that it "'impos[es]' the desires of the rich on social priorities and wealth redistribution," lists six reasons why he's still a fan, including:

• "The arts receive about five percent of U.S. charitable donations. I am more than willing to stomach this degree of anti-egalitarianism in the non-profit subsidy, and yes we do get more beauty for it. Furthermore the alternative of more direct government arts funding would not work out well in the relatively Puritan United States, even if you think it has worked well in Europe."
• "The general proliferation of non-profit institutions makes America a much more innovative and diverse place, intellectually and otherwise."
• "Relying so much on private philanthropy chips away at the dangerous attitude that there are clearly defined social priorities to which everyone must pay the same heed."

"Instead of flatly banning the export of antiquities, why not ban their sale but allow them to be rented?"

"Undercover Economist" Tim Harford discusses an interesting proposal for eliminating the black market in stolen antiquities.

Next Up on the Deaccession Docket

While the Fisk-O'Keeffe lawsuit has come to a close, another deaccessioning lawsuit continues apace: "A group of 11 people associated with Randolph College's Maier Museum of Art filed legal action in Lynchburg Circuit Court on Tuesday to prevent the sale or sharing of the museum's artwork." The motion to intervene was filed in response to the college's request last month for a declaration that it has the authority to sell or share ownership of works purchased with funds from a trust set up under a 1928 bequest (or, if it doesn't, that the terms of the trust be modified to give it the authority). Portfolio magazine's Callen Bair sums up their claims:

"They argue that [the donor] meant for the pieces bought with money from her trust to remain at Randolph in perpetuity; that the college is considering a sale of the art 'to try to correct its poor decision making and past financial mismanagement'; and that it can solve its financial problems by better handling its resources and pursuing other fundraising options."

More on the lawsuit from Lee Rosenbaum here. Time magazine's Richard Lacayo had some thoughts recently on the Maier situation generally.

The Other Barnes Lawsuit

Montgomery County has now filed its Orphans' Court petition to block the Barnes's move to Philadelphia. The Philadelphia Bulletin has the story. It sounds like a much narrower suit than the one filed by the Friends of the Barnes group a couple of weeks ago: "The county contends that while there may have been a legitimate worry about the collection's inability to afford to stay put, circumstances have changed for the better. Thus Barnes' wish, specified in an official trust, to leave the Barnes in its current location should be honored, the petition said. 'It is axiomatic that if conditions dictate diverting from the language of a trust or the intent of the grantor when financial circumstances will no longer allow the carrying out of a charitable trust, when circumstances again change in such manner to allow the grantor's intent to be carried out, the language of the trust should be followed and the trustee has the obligation to follow a course in accord with the grantor's wishes,' the county argued."

The Fisk Decision

I've now had a chance to read Chancellor Lyle's decision rejecting the proposed Fisk-O'Keeffe settlement, which in turn led the O'Keeffe Museum to drop its lawsuit (as well as to "a little joy in Fiskville"), clearing the way, or so the consensus goes, for the university to accept an 11th hour offer that had come in from Alice Walton's Crystal Bridges Museum. The court saw the matter as turning on a single question: was the proposed settlement "in the best interest of the people of the State of Tennessee?" And it thought the answer was "no," for the simple reason that there was a better offer on the table from Crystal Bridges. The court listed "several reasons" for this conclusion:

1. The "obvious reason" that Crystal Bridges "offers more money": "$30 million is four times the $7.5 million offered by the Museum. ... While $7.5 million might tide Fisk over, $30 million would put the University on much firmer financial footing." As I've mentioned before, the museum's offer -- because it would also have allowed the university to sell a valuable Marsden Hartley painting on the open market (albeit subject to certain restrictions that would have depressed its price at least to some extent) -- would probably have yielded the university somewhere closer to $25-$30 million. So then the question becomes would you rather sell half the entire collection for $30 million or, for (roughly) the same price, sell the two best works in the collection and retain 100% ownership of the other 99 (lesser) works (plus the right to exhibit the single best painting for four months out of every four years, or just over 8% of the time). I'm not sure how you would even go about answering that question.

2. The Crystal Bridges offer gives the people of Tennessee "more access to ... the important artwork Radiator Building." That's undeniably true, but it gives them less access to all the other works in the collection (other than the Hartley). Instead of having access to those works all the time, under the Crystal Bridges offer they would have access to them 50% of the time. Again: how do you weigh those alternatives against each other?

3. The third and final reason is, in Chancellor Lyle's words, "integrity. The law respects and honors the intent of donor's [sic] who give charitable gifts." By which I suppose she means that the people of the State of Tennessee have an independent interest in seeing people's donative intent respected, separate and apart from whether or not, from a purely consequentialist perspective, honoring that intent would benefit the people of the State (as, for example, if the intent was that the works never be sold, in any form). And here the court interpreted the donor's intent to be (a) that the collection be "preserved as a whole and remain intact"; (b) that it be "titled and known as the 'Alfred Stieglitz Collection'"; (c) that it "convey [Stieglitz's] unitized view of modern art"; and (d) that Radiator Building "is essential to and the heart of" the collection. On that interpretation of O'Keeffe's intent, it's hard to argue that the Crystal Bridges offer isn't superior to the proposed settlement.

As I mentioned above, the consensus seems to be that the door is now wide open for Crystal Bridges, though the chairman of the board of the O'Keeffe Museum said this week that "it’s by no means a done deal" and Attorney General Cooper "reiterated a point he made in a letter to Walton last week: 'I would still prefer to see a local proposal that allows the Collection to remain in Nashville on a full-time basis.'" Isn't it obviously in the best interests of the people of the State of Tennessee to open it up to other bids? Maybe another museum somewhere is willing to offer more than $30 million for a 50% interest.

But what if an institution (or even an individual) in Tennessee steps forward with an offer of less than $30 million but which satisfies Cooper's wish that the collection stays in Tennessee?

Then what?

Alice Walton, call your office! (UPDATED)

Whoa. Things just took a very interesting turn in the Fisk-O'Keeffe case. The AP is reporting that the O'Keeffe Museum has dropped its lawsuit: "The New Mexico museum moved to dismiss its lawsuit one day after a judge denied a settlement agreement that would have sent a prominent O'Keeffe painting to the museum for $7.5 million. ... The dismissal opens the door to a $30 million offer from the Crystal Bridges Museum in Bentonville, Ark., to share a 50 percent stake in the collection and to display it half the time."

UPDATE: Jonathan Marx has more in The Nashville Tennessean this morning. Fisk President Hazel O'Leary says "our law firm has been in touch with the Crystal Bridges Museum, and I would expect to hear from them formally in the next day or two." More here from The New York Times, where O'Leary says "we’re about to have a little joy in Fiskville tonight."

BREAKING: Fisk-O'Keeffe Settlement Rejected

Lee Rosenbaum breaks the news that the Chancery Court has rejected the proposed settlement between Fisk University and the Georgia O'Keeffe Museum. Lee says "even though she wasn't a party to these proceedings, this sure sounds like a judgment in favor of Alice Walton."

More later.

"There's no good reason for Ott to reconsider his decision. It's time to press on" (UPDATED 2X)

The Philadelphia Inquirer had an editorial on the Barnes on Friday. In today's paper, Inga Saffron reports on some on-pressing: Tod Williams and Billie Tsien have been chosen to design the new museum. Saffron likes the choice: Williams and Tsien are a "good fit for the Barnes, which is obliged by the courts to replicate its idiosyncratic 1920s galleries that now house the collection."

UPDATE: More from Robin Pogrebin in today's New York Times: "In 2004 a judge in Montgomery County, Pa., cleared the way for the move by ruling that it was the only way to save the cash-strapped Barnes from bankruptcy. (Three Philadelphia-area foundations have pledged to finance the relocation.) But even while allowing the foundation to violate the wishes of its founder, Albert C. Barnes — who mandated that no picture could ever be moved on the walls — the judge said that a transplanted Barnes should strive to be a re-creation of the original. ... Thus Ms. Tsien and Mr. Williams must work within those parameters even as they create something new ...."

UPDATE 2: Tyler Green is not impressed with the Inquirer's editorial. In particular, he takes issue with the board's assertion that "[Judge] Ott decided that businessman Albert C. Barnes' collection could be moved in order to expose it to a wider audience." I think Tyler's right that that was by no means the rationale for the decision, but, near the end of his opinion, Judge Ott did say the following: "By many interested observers, permitting the gallery to move to Philadelphia will be viewed as an outrageous violation of the donor's trust. However, some of the archival materials introduced at the hearings led us to think otherwise. Contained therein were signals that Dr. Barnes expected the collection to have much greater public exposure after his death."

The LA Times's Christopher Knight also thinks Judge Ott should reopen the proceedings. He cites to "two disquieting facts that emerged after his 2004 ruling" which "imply" that he was "duped." The two facts, which keep coming up in this conversation and so are worth looking at a little more closely, are:

1. In 2002, "the state appropriated $100 million for downtown construction. But that huge budget allocation was never publicly announced. It remained undisclosed for four years -- until long after the judge's ruling."

2. Also in 2002, the The Pew Charitable Trusts, one of the three charitable foundations leading the charge to move the Barnes to Philadelphia, filed an IRS application to change its status from a private foundation to a public charity. According to Knight: "Pew's application held out its management of Barnes fundraising as 'a prime example of the valuable role that [Pew] will play.' But that's not the story Pew Charitable Trusts President Rebecca W. Rimel later told Ott's court, according to the [Friends of the Barnes recent] petition. By the time she took the stand to testify in the Barnes hearing, the successful change in her foundation's status had been announced. Yet the change, she said, was 'not based on anything that may or may not happen with the Barnes. . . . It has no implications whatsoever.'"

I'm not sure I see why these are supposed to be grounds for reopening (let along reversing) the earlier decision, which expressly turned on the answers to three questions:

(1) Could the Barnes raise enough money through the sale of its non-gallery assets to keep the collection in Merion and achieve fiscal stability?

(2) Can the Philadelphia facility be constructed on the $100 million budget that was being proposed?

(3) Is the Foundation's so-called three-campus model -- the new Philadelphia museum, administrative offices in Merion, and a Chester County farmhouse operating as a "living museum" -- feasible?

Looking at those three questions, and turning back to Knight's first point -- the $100 million that had been allocated for downtown construction -- doesn't that actually help support the Judge's decision? If anything, it would have given him additional comfort on the second of the three questions (is this thing really going to get built in Philadelphia?), without, so far as I can see, affecting the answers to the other two questions in any way. Similarly, the second point Knight raises seems not to have anything at all to do with the three questions the Judge was considering. Sure, Rebecca Rimel may have been less than fully candid in answering that question (and I'm not sure I see even that: wasn't she just saying that the change in status was going forward no matter what happened with the Barnes, which for all we know was entirely true?) -- but, if so, what does that testimony have to do with whether enough money could be raised through the sale of non-gallery assets to keep the collection in Merion, or whether the Philadelphia facility could be constructed on the proposed budget, or whether the three-campus model worked?

I had reservations of my own about the decision, but these particular issues have never struck me as especially serious.

Latest on the Pollock-Matter Matter (UPDATED)

I've been meaning to update on the "Pollock Matters" show, which opened at Boston College's McMullen Museum of Art last weekend. The Boston Globe's Geoff Edgers was there:

"The Matter pictures were only a part of the exhibition, which features more than 170 works over two floors. 'Pollock Matters' explores the relationship between the two couples, Herbert Matter and his artist wife, Mercedes, and Pollock and abstract painter Lee Krasner. To that end, the galleries feature photographs and paintings by the Matters, Krasner's canvases, copies of journals, letters, and a handful of undisputed Pollocks, including the MFA's 'Number 10.' Downstairs, the Matter pictures were displayed in a separate room and not credited to a particular artist. The room was a prime destination."

Globe art critic Ken Johnson reviews the show here: "If the two dozen small paintings discovered by Alex Matter five years ago in his deceased parents' storage locker are not by Jackson Pollock, then I'd like to congratulate whoever did make them. Now on view for the first time in a fascinating, much anticipated exhibition called 'Pollock Matters' at Boston College's McMullen Museum of Art, they are beautiful little pictures."

Then, on Tuesday, as if there wasn't enough controversy surrounding the exhibition, Edgers reported at his blog that, having been denied permission to reproduce any real Pollocks in the show's catalog, the museum went ahead and included certain images anyway, on fair use grounds. The school issued the following statement:

"Following the Pollock Krasner Foundation's decision to withhold permission to reproduce works of Lee Krasner and Jackson Pollock in the PollockMatters catalogue, Boston College worked closely with copyright counsel to produce a catalogue incorporating those images needed to publish our contributors' scholarship in conformity with fair use principles."

More here on this "latest wrinkle" from Cleveland Plain Dealer art critic Steven Litt.

"Fair use" cases are notoriously difficult to call, and I haven't seen exactly how the images are used in the catalog, but as a general matter this kind of scholarship/research use should at least have a fighting chance. The fact that the museum first asked for permission should not be dispositive either: recall the recent Grateful Dead decision, finding fair use in a case where the publisher's request for a license had previously been rejected.

UPDATE: Sergio Muñoz-Sarmiento thinks "Boston College seems to have a valid and solid reason for dismissing the Pollock Estate’s denial."

In the Governator's Hands Now

California's Marilyn Monroe bill has moved one step closer to becoming law:

"Distant heirs of celebrities who died before 1985 could control their publicity rights under a bill the Senate sent to celebrity Gov. Arnold Schwarzenegger Friday. The bill by Sen. Sheila Kuehl, D-Santa Monica, was in response to recent court rulings that said California's celebrity rights law doesn't apply to those who died before the law was adopted. ... The Senate agreed to Assembly amendments on a 32-0 vote."

The Fisk Hearing

Jonathan Marx reports in The Nashville Tennessean that "Davidson County Chancellor Ellen Hobbs Lyle is expected to rule in the next few days whether to approve a settlement between Fisk University and the Georgia O’Keeffe Museum." There was a hearing on the settlement today. Reports Marx:

"Speaking from the bench, Lyle noted that in a case regarding a disagreement over a charitable gift, the law doesn’t require a perfect solution, but rather a solution that comes as close as possible to honoring the wishes of the donor. ... If Lyle chooses not to approve the settlement, all parties will proceed to a Sept. 18 trial date, at which the museum will argue that it should get the entire Stieglitz Collection because Fisk has breached the conditions of O’Keeffe’s donation."

One Step Closer

From the Associated Press:

"Mayor John F. Street signed legislation that authorizes the city to enter into a long-term lease with the Barnes for a site occupied by a juvenile detention facility. That building will be torn down to make way for the Barnes' new home as soon as its population can be relocated, officials said."

Philadelphia Inquirer architecture critic Inga Saffron says this is "just the first of the Barnes' headline grabbing efforts":

"The museum, which announced a short-list of six architects this spring, and seems undeterred by the latest lawsuits aimed at stopping the move, is expected to name a designer for the project by next week. One unofficial, but informed, source predicts there is a good chance it's either going to be Rafael Moneo, author of Los Angeles' Catholic Cathedral, or Tod Williams and Billie Tsien, creators of Philadelphia's best recent building, Skirkanich Hall. The Barnes is probably the most important architectural commission of the decade, so whoever wins should be one happy designer."

Can museums compete?

Lee Rosenbaum had an op-ed in yesterday's Los Angeles Times arguing that "driven by the scarcity of great old works and an expanding class of wealthy buyers, the recent stratospheric rise of art prices has utterly outstripped most [museum] acquisitions budgets." Greg Allen and Tyler Green (1 and 2) take issue with her thesis. Lee responds here.

I'll stay out of the underlying debate, but I did want to mention two things that caught my eye in the back-and-forth. First, Lee's piece mentions the changes in the law governing fractional gifts to museums, a subject covered extensively here a year ago:

"Last year, tax deductions for 'fractional' donations were sharply restricted. Collectors used to be able to promise a work to a museum and take the tax benefit over time, sometimes over decades. Museums displayed the works occasionally, donors had them the rest of the time and the deductions appreciated as the work appreciated. The new restrictions 'effectively ended donations of fractional gifts to museums,' wrote Gail Andrews, president of the Assn. of Art Museum Directors, in a recent letter to Rep. John Lewis (D-Ga.), chairman of the House Ways and Means Oversight Subcommittee. Andrews, director of the Birmingham Museum of Art, urgently requested changes in the law and described the plight of five unidentified institutions across the country that had lost donations. Jeremy Strick, director of Los Angeles' Museum of Contemporary Art, acknowledged that MOCA was one of those institutions, and that a donor had withdrawn 40 promised works. Strick told me that about 30% of art donated to his museum had previously come as fractional gifts. The tax-law changes, he said, derailed negotiations with 'five to 10' potential donors."

Second, Greg makes an interesting point against the radical anti-deaccessionists (like Lee). Speaking of MoMA's acquisition of Pollock's iconic One: Number 31, 1950, he says:

"Ironically, even at that point, Rubin had to raise the money to buy One ... by selling two paintings by Mondrian .... I say ironic because the other of Rosenbaum's laments is that museums are 'selling to buy,' deaccessioning works in order to buy other works. Or to put it another way, had the Modern followed Rosenbaum's ideal policy in 1967, it wouldn't have made its landmark purchase of "One: Number 31, 1950" (1950) by Jackson Pollock. But hey, at least it'd have 45 Mondrians instead of the measly 43 it has now."

The Joe Thompson Rules

Sergio Muñoz-Sarmiento has some thoughts on the summary judgment briefs we filed at the end of last week in the lawsuit MASS MoCA brought against Christoph Büchel. He says "this type of gross deviance from an artist’s instructions or wishes should shock the conscience of any contemporary artist."

I’ll have more to say about the filings over the next few days, but one thing I want to call attention to at the outset. MASS MoCA’s brief includes the following section headings, among others:

• "VARA Does Not Bar Display of Unfinished Work"
• "Work by MASS MoCA Personnel to Carry Out Büchel's Plans ... Does Not Constitute 'Distortion, Mutilation, or Modification' Under VARA"

They also continue to push the completely offensive argument that the logistical support they provided somehow made them Büchel’s "co-author" on the project (see pp. 5-6 of the museum’s brief).

The point I want to emphasize for now is that, if the museum succeeds in its lawsuit, the loser will not be Christoph Büchel but all artists.

If they win the case, it will not be because of something specific to the relationship between this artist and this museum. It will be because they have convinced the Court that "VARA does not bar the display of unfinished work." Not Christoph Büchel’s unfinished work, but every artist’s unfinished work. It will be because they have established that, as long as you can claim you were "carrying out the artist’s plans" (even if, as a matter of objective fact, you carried them out incorrectly), you are immunized from VARA liability.

If MASS MOCA wins its lawsuit, artists in this country will wake up the next morning with far fewer rights than they had the day before.

I’m not sure if people appreciate that the legal case does not turn on who was at fault as between Büchel and the museum. Instead, it turns on how VARA is properly interpreted. So that it can win its case – so that it can win the right to show what it insists on calling mere "materials"–MASS MoCA is pushing for an extremely narrow reading of the statute (it doesn’t prevent the display of unfinished work, etc.). If the museum does get the right to show those mere "materials," then, it will have done so at great cost to artists’ rights generally.

So what Joe Thompson did on his summer vacation – in addition to being "sad, dumb, and shameful," in addition to wasting his premier gallery space during the museum’s peak visiting season – was to work towards a general narrowing of artists’ rights in this country.

If he succeeds, we can call the new legal principles that result "The Joe Thompson Rules."

"Unfortunately, he didn’t just keep quiet"

The chairman of the board of the O'Keeffe Museum reacts to the Tennessee Attorney General's filing in opposition to the museum's proposed settlement with Fisk University: "Normally, when two parties are in litigation and they agree to settle, that’s the end of it." More here from the Santa Fe New Mexican.

Against It

Tennessee Attorney General Robert Cooper Jr. answers Lee Rosenbaum's prayers and files a brief expressing opposition to the proposed settlement between Fisk University and the Georgia O'Keeffe Museum. It isn't clear to me whether Cooper has the power to stop the deal or not (if he does, one wonders why he would bother expressing opposition to it to the court, rather than just going ahead and stopping it on his own). The court will take up the proposal at a hearing this Thursday.