Copyrights and wrongs

I've been mostly laying off the internets this week, but just when I thought I was out, they pull me back in: Lee Rosenbaum asks about the copyright status of the Statue of Liberty, and, relatedly, George Wallace wonders about Egypt's plans to copyright the pyramids and other famous landmarks.

Lee's hunch about the Statue of Liberty seems correct: having been registered for copyright in 1876, I don't see how it could fail to be in the public domain now. As for the news out of Egypt, it's not entirely clear what the scope of the new legislation will be -- the New York Times says "the proposed law would apply to full-scale precise copies of museum objects and 'commercial use' of ancient monuments" -- but, in any event, the real issue is going to be enforcement: it's hard to imagine other countries (including the US) enforcing the law for acts that occur outside of Egypt.

In all likelihood, things will remain quiet around here through the end of the year. Happy New Year to all!

"My name is Frank Gehry and my buildings don’t leak"

That's Pike Magazine's choice for quote of the year. (Gehry does have a knack for defusing criticism.)

Gehry also made Fortune's list of the year's 101 Dumbest Moments in Business: "MIT sues architect Frank Gehry, alleging that flaws in his design of the school's $300 million Stata Center - which Gehry himself once described as looking 'like a party of drunken robots got together to celebrate' - resulted in problems including cracks, leaks, and mold."

"Lyle also declined to rule out that the entire art collection could revert back to the New Mexico museum"

The Nashville Tennessean has the latest development in the Fisk proceedings. Judge Lyle has denied Fisk's motion to dismiss the O'Keeffe Museum from the proceedings seeking approval of its deal with the Crystal Bridges Museum. This comes three months after Judge Lyle rejected a settlement of the O'Keeffe Museum's lawsuit in large part because the Crystal Bridges offer was "obviously" better. I'm still mystified.

Loan On

I haven't been keeping up with the story of the threatened cancellation of a loan of a group of important works from Russia to a U.K. museum, since the news seemed to change every five minutes. But now it seems that the loan is definitely back on. The New York Times reports this morning:

"One day after announcing that it was canceling plans to lend paintings from its museums to a major exhibition in London, Russia reversed itself after the British government moved up the date on which legislation protecting art from seizure in lawsuits would become effective .... The exhibition, 'From Russia: French and Russian Master Paintings 1870-1925,' was scheduled to open at the Royal Academy on Jan. 26. But Moscow refused to lend major French and Russian paintings out of concern that they might be held. ... Among the paintings to be shown were prominent Impressionist and Post-Impressionist works, which descendants of some Russian collectors claim were taken by the new government after the Bolshevik Revolution in 1917. James Purnell, head of the British Culture Department, said on Thursday that Britain would move up, to early January from late February, the effective date of a provision in legislation that bars the seizure of art lent on a government-to-government basis."

Barnes Delay

As a result of a change in counsel, the deadline for the Friends of the Barnes Foundation's brief has been extended from Dec. 31 to Feb. 29. More here.

"It was a professional job; it was something they studied because the paintings were in different rooms"

Major art theft in Brazil this morning:

"Armed with nothing more than a crow bar and a car jack, it took thieves just three minutes to steal paintings by Pablo Picasso and Candido Portinari, worth millions of dollars, from Brazil's premier modern art museum. Authorities said they hit the Sao Paulo Museum of Art just before dawn Thursday — a time when the city's busiest avenue is deserted and the guards inside were going through their shift change."

Donation Deductions (UPDATED)

In The Christian Science Monitor, Daniel Grant looks at the question whether the government should allow tax deductions for charitable giving at all. He argues that "they don't necessarily encourage giving, and they don't always help the poor."

Previous post on this issue here.

UPDATE: Since charitable deductions are allowed, if you're looking for suggestions about where to give, Tyler Cowen has some pointers.

Public Photography Rules Update

In the Village Voice, Anthony Kaufman reports on the "final and sparsely attended" public hearing on New York City's proposed street photography rules.

"One can't help wondering whether there are any more such subprime objects in the blue-chip collections of the world" (UPDATED)

Bloomberg critic Martin Gayford on the AIC's fake Gauguin.

UPDATE: "The best forgeries are those that haven't been discovered yet."

A Different Kind of "Factory"

The Atlantic's James Fallows visits the Dafen "art factory village" in southern China where "in one sprawling area are many hundreds of individual art factories, in which teams of artists crank out hand-painted replicas of any sort of picture you can imagine. European old masters. Andy Warhol. Gustav Klimt. Classic Chinese landscapes. Manet. Audubon. Botero. .... Thomas Kinkade, the 'Painter of Light.' ... This and more is on sale, priced more or less by the square meter."

Dealer Tax Fraud

The New York Sun reports that Michael Weisbrod, of the Weisbrod Chinese Art gallery in New York, has pleaded guilty to charges of, among other things, failing to collect sales tax on sales from the gallery. He will have to make up the tax payments and pay $600,000 in fines, and "will likely be sentenced to conditional discharge in April."

Fractional gift news

The New York Times reported last week on a major "fractional and promised" gift to the Los Angeles County Museum of Art. As originally published, the article erroneously described an aspect of the current law governing fractional gifts, which led to the following correction being appended to the story:

"Because of an editing error, an article...about a promised gift of 130 artworks from Janice and Henri Lazarof to the Los Angeles County Museum of Art included an outdated reference to tax law governing partial donations....Under the current law, the tax deduction for partial gifts does not rise from year to year if works appreciate in value. Thus donors no longer benefit from bigger deductions for such appreciation."

Lee Rosenbaum wonders "how was it that the Lazarofs were willing to make such a major fractional and partial gift in the current unfavorable tax climate for this type of donation, which museum officials claim has essentially frozen this form of largesse?" The answer, it seems, is that technical corrections have at last been introduced in Congress that will fix the problematic estate and gift tax consequences that were created by the enactment of the new law last year. I'm told by a lobbyist close to the negotiations that the corrections have bipartisan support and have already been vetted by the Treasury, so it's assumed by all concerned that they will eventually be enacted, and with an effective date retroactive to the date the original legislation took effect, thus covering the Lazarofs' gift to LACMA.

"Friends of the Barnes' Legal Case in Disarray"

Lee Rosenbaum reports. More here from Jim McCaffrey in the Philadelphia Bulletin.

Gardner Grand Jury Hearings

The Boston Globe reports that a federal grand jury is scheduled to hear evidence this week regarding the infamous 1990 robbery at the Isabella Stewart Gardner Museum. "Over the years, the crime achieved notoriety as the largest unsolved art theft in world history with the value of the stolen works estimated between $300 million and $500 million."

Derek Fincham: "Whether a resolution will emerge remains to be seen, but right now there are more questions than answers, most notably: where are the paintings?"

"They were just happy having a drink of cider in front of telly"

Newsweek takes a look at "the Greenhalgh family—47-year-old Shaun and his octogenarian parents, Olive and George—[who] lived quietly together in a housing project in the heart of Britain's postindustrial north," where they managed to pull off a string of highly successful art forgeries, including the fake Gauguin recently discovered at the Art Institute of Chicago.

The fake Gauguin continued: Is an international registry the answer? (UPDATED)

At his invaluable Illicit Cultural Property Blog, Derek Fincham weighs in on the Art Institute of Chicago's fake Gauguin. He thinks it "reveals at least two troubling matters":

"First, how many more forgeries are out there? How easy is it to trick authenticators? The best in the world looked at this sculpture and were duped. ...

"Second, I think it reveals the continuing need for more provenance information in art and antiquities sales. The answer may be for an international registry which tracks buyers and sellers when objects are bought and sold. Until such a system emerges, the market continues to leave itself open to this kind of embarrassment."

I'm interested in the second idea. The notion of a registry of artworks keeps coming up whenever something goes wrong in the art market, but I'm not sure I see how it's supposed to work. How would it have helped in this case, for example? Presumably there would be some mechanism for listing older works (like this one) with the registry -- wouldn't there be every bit as much opportunity for fraud at that stage as there was in getting the work accepted for sale at Sotheby's? After all, by all accounts the fraudulent work here came with a convincing provenance. Says The Art Newspaper:

"According to the Sotheby’s 1997 catalogue entry, The Faun had belonged to the artist Roderick O’Conor, a friend of Gauguin in the 1890s. However, although O’Conor was given some works by Gauguin, this one is said to have [been] bought from Nunès and Fiquet in 1917, and then to have passed down his family. ... [The con-artist consignor] had supplied Sotheby’s with a copy of what appeared to be a Nunès and Fiquet bill, selling The Faun to O’Conor."

Couldn't the same scheme have fooled whoever was in charge of the international registry?

Perhaps Derek can sketch out in a little more detail how he envisions the registry working.

UPDATE: Derek responds here.

Martin Responds

James Martin has a letter to the editor of The East Hampton Star, responding to comments by Alex Matter's lawyer, Jeremy Epstein, in a story that ran last week. He writes: "Given the statements attributed to Mr. Epstein, it is no mystery why very few experts are willing to speak publicly on matters related to the authenticity of fine art and other cultural property."

The Fractional Gifts Legislation

Daniel Grant has a story in the Maine Antique Digest about the fractional gifts legislation that was introduced in Congress in October (about which see here). No news about its progress.

Grant offers the following summary:

"The new legislation, titled the 'Promotion of Artistic Giving Act of 2007,' would restore the open-end length of the gift, only requiring that the donation be completed within nine months of the death of the donor. It would again allow escalating value deductions during the term of the gift, as long as the Internal Revenue Service's art advisory panel reviews the higher appraisals. Additionally, the bill would repeal the requirement stated in the Pension Protection Act that requires museums have 'substantial physical possession of the property' during the donation process."

The first two sentences are largely correct, but I don't think the last sentence is right. The "substantial physical possession" rule would still apply (except that, since, as Grant points out, gifts would no longer have to be completed within a 10-year period, presumably the museum would have to take possesson at some point prior to the new nine-months-of-death deadline).

More on the Fake Gauguin (UPDATED)

Lots more on the fake Gauguin at the Art Institute of Chicago, mentioned here yesterday. The Chicago Sun-Times says the piece "is one of hundreds of art forgeries by Shaun Greenhalgh of Bolton, England, who was sentenced to more than four years in a British prison last month." The Art Newspaper reports that it was sold for £20,700 in 1994 at Sotheby's in London to a pair of London dealers, who then sold it to the Art Institute a few years later for "around $125,000." Derek Fincham wrote about the Greenhalgh family of art forgers last month. Megan McArdle is baffled by the whole thing.

The Sun-Times says "museum officials are in discussions with the dealer and Sotheby's about being compensated," and The Art Newspaper says "Sotheby’s is now expected to reimburse the Art Institute of Chicago." I don't know what the law is in the U.K., but in the U.S. the auction houses typically guarantee the authenticity of works only for five years from the date of sale.

UPDATE: Thursday's New York Times has this story by Carol Vogel.

"If there's anybody out there that wants a hole drilled in their head and a pineal extender grafted to their pineal gland, let me know"

That's a message from bioartist Adam Zaretzky (no relation), in this NPR piece on a group of artists whose work involves "engineering living tissue and even living beings." One couple has "grown a replica of an ear with living human skin cells, miniature wings with the flesh of a pig and mouse cells in the shape of a tiny leather jacket." Stanford Law Professor Hank Greely says: "The legal situation is murky in several directions, and I think it's highly likely that not all artists are carefully advised about it."

Warning Lifted

Christa Desrets reports in this morning's Lynchburg News & Advance that Randolph College has had its warning status lifted by its accrediting organization. The Southern Association of Colleges and Schools had placed the school on warning last December after determining that it was spending its endowment at an unsustainable rate.

But opponents of the (temporarily enjoined) sale of paintings from the school's Maier Museum shouldn't get their hopes up: a Randolph spokeswoman says, "We still have plans to sell the unrestricted artwork in the future. That decision hasn't changed."

Lee Rosenbaum has more.

"Heroes" Suit Dismissed

Southern District Judge Denise Cote has dismissed a copyright infringement claim involving the NBC TV series "Heroes," mentioned earlier here. The decision is here. The plaintiffs -- "divination artists" known professionally as "The Twins" -- claimed the series infringed their copyrights in a 777-page handwritten novel The Twins: Journey of the Soul, a short film based on the novel entitled The Letter, and their painting series Envious of America. According to Judge Cote, the claim "focus[ed] particularly" on the similarities between a character named Idai from the novel and the character Issac Mendez in the TV series, noting that "both (1) are 'minorities' ..., (2) have the ability to 'paint the future'; (3) often paint in oil in large canvasses; (3) [sic] create depictions of 'two landmark New York City buildings being destroyed' (Idai the Twin Towers, Issac the Empire State and Chrysler Buildings); (4) create paintings of a bus being destroyed in the future, which prediction is then validated in a newspaper article; and (5) attempt to stop the destruction of those buildings."

The case was decided on idea vs. expression grounds. On summary judgment (the case was before her on a motion to dismiss, which she converted to a motion for summary judgment), Judge Cote held that, "having reviewed these works in some detail, it is readily apparent that these claims are wholly without merit, as nearly every instance of alleged similarity between Heroes and the plaintiffs' work relates to unprotectable ideas rather than protectable expression." She said that "a 'minority artist' who has the ability to paint the future is an 'idea' that is not protected under the copyright laws." After reviewing a number of other alleged similarities between the works, she concluded that "while the line between mere 'ideas' and protected 'expression' is famously difficult to fix precisely, these alleged 'similarities' are textbook examples of the former. ... [I]t must be concluded that whatever similarities may be said to exist between Heroes and plaintiffs' works are not due to protected aesthetic expressions original to the allegedly infringed work, but rather related to ideas in the original that are free for the taking."

Next up: NBC's request for attorney's fees.

They do say the works look fishy

Another odd little twist regarding the "Matter Pollocks": apparently Matter donated one of the works to the Mystic Aquarium! Full story here. "Plans are to sell it and use the proceeds to help fund the next stage of the aquarium's development. [A senior vice president at the aquarium] estimated it could be worth anywhere between $1 million and $10 million." Given recent developments, that sounds a little optimistic; I hope they have other funds in place to fund the next stage of the aquarium's development.

If the work does have value (perhaps as a "lottery ticket" giving the holder a chance at a real Pollock if the consensus regarding their authenticity can somehow be turned around), the "related use" rule (which requires that the donated work be related to the exempt purpose of the donee charity) would probably prevent Matter from taking any tax deduction for the donation in any event.

Fake Gauguin

Tyler Green reports that the Art Institute of Chicago has determined that a Gauguin sculpture in its collection is a fake. He says the museum purchased the work from a private dealer who had bought it at auction from Sotheby's.

Dram Shop Suit Dismissed

The Aspen Art Museum has been voluntarily dismissed from a lawsuit (mentioned earlier here) brought by a cab driver who claims he was assaulted by an intoxicated passenger after he left a party at the museum. Story here. Apparently "the party’s organizer, Tony DiLucia, filed an affidavit testifying that the alleged attacker ... was not served alcohol during the party." "I have no reason not to believe Mr. DiLucia, so I agreed to dismiss," says the cab driver's lawyer.

Kiss This

From Callen Bair comes word that the French gallery that was showing the Cy Twombly painting that was kissed/defaced by Rindy Sam this summer has "mounted a response," an exhibition titled "I Don't Kiss":

"The exhibition is made up of works intended to express outrage at the kiss and includes Bertrand Lavier's interpretation of Salvador Dali's red lips-shaped couch (Lavier has placed the lips on top of a freezer), Douglas Gordon's human skull marked with the impression of his own lips, painted in the exact shade as were Twombly's aggressor, and, alas, the restored [Twombly] triptych."

Callen also notes that the other paintings that were on view with the triptych this summer are now up at Gagosian Gallery in Chelsea ("where they are watched over by suited security guards").

Wisecracks (UPDATED)

In this morning's New York Times, Sarah Lyall has some fun with Doris Salcedo's "Shibboleth," "the giant crack in the floor at the Tate Modern" which, as I noted here, has led to a reported 15 (minor) injuries since it opened in October:

"'How dim would you have to be?' Mark Knight, a 41-year-old nurse from Ipswich, asked rhetorically the other day. '"Oh, no, I wasn’t expecting the crack to be there,"' Mr. Knight whined, imagining the inner monologue of an injured party. 'There’s a crack there, but hey, when I put my foot in there, I didn’t expect to trip in it.'"

Lyall writes that, when she was there, "visitors seemed filled with wonder, not only at the artwork’s grand gesture but also at the mildness of the hazard it represents":

"The first thing you see when you enter the [gallery] are signs saying, 'Warning: Danger of Falling,' illustrated with a picture of a stick figure who has tripped on something and is about to fall down. Also, the crack is hard to miss, there on its own in the middle of the floor, surrounded by people taking pictures of it, peering down into it, stepping across it and walking alongside it. 'The exhibit is all about the crack,' said Peter Girard, 38, an American tourist. 'It’s a really big crack. What are you looking at if you’re not looking at the crack?' ... Two visitors from the Netherlands, Manon Straatman and her husband, Victor, were equally mystified by the perils of 'Shibboleth.' 'Maybe someone walks into the museum and isn’t interested in what’s in the museum,' Mrs. Straatman mused. Mr. Straatman said the crack was modest in its width and depth, hardly the sort of gaping abyss into which you might plummet to your doom."

But wouldn't you know it . . . as they are talking, someone nearly plummets to her doom:

"'Oh look, there’s someone falling now,' [Mr. Straatman] said suddenly. Indeed there was: A woman nearby had caught her foot in the crack and pitched awkwardly forward, ending up sprawled on the floor. The woman, who later identified herself as Anne McNicholas, a 51-year-old medical researcher from New Zealand, said she had arranged to meet some friends in the gallery and had not been looking where she was going. 'I just didn’t see it,' she said. She was not impressed by the exhibit, particularly in light of her injuries: a nasty scrape-cum-bruise on her right knee and an even nastier one on her left shin. 'I don’t think it should be there at all.' she said. 'It’s not America,' she added pointedly, 'so I won’t sue.'"

The last word is given to Uros Vasiljevic, a 29-year-old businessman visiting from Serbia: "Art is dangerous sometimes."

UPDATE: Richard Lacayo gets to thinking about some really dangerous art.

Counterfeit Suit

Josh Baer reports:

"Ronald Perelman and his associated companies have filed suit in New York against Galerie Jacques de Vos for $20 million alleging 'a pattern of racketeering using US mail wires to sell counterfeit goods.'"

"Is Alex Matter prepared to concede the paintings are not authentic? No. We don’t regard Mr. Martin’s conclusions as reliable." (UPDATED)

Long story in the East Hampton Star on the latest developments (see here) regarding the "Matter Pollocks." Helen Harrison, director of the Pollock-Krasner House and Study Center, notes that "there is a general reluctance to speak for attribution on any matter regarding Pollock and authenticity. 'Nobody wants to be in that position even with indemnification,' she said. A Pollock authentication committee disbanded several years ago. 'They wound up business after their third lawsuit.'"

There are also a number of quotes from Matter's lawyer, Jeremy Epstein of Shearman and Sterling, regarding forensic scientist James Martin, who reportedly held back on releasing the results of his research for fear that Matter would sue him if he did:

"'After the draft report was received we called him up and said we wanted to discuss it with him ...,' Mr. Epstein said of Mr. Martin. 'He refused to meet with me. . . . I’ve been a lawyer for 30 years and he’s the only hired expert I know of that declined to meet with the person who hired him.' Without such a meeting, Mr. Epstein said, they considered the report unfinished and had not authorized Mr. Martin to release it. 'We asked to see the underlying scientific documentation. He said it was destroyed, but he would recreate it if paid a lot more money. We refused.' Mr. Epstein added that he had not threatened litigation, as some news accounts have reported. 'I’ve said all along no one is threatening to sue anybody. It’s a figment of Mr. Martin’s imagination.'"

Although there was a general sense that Martin's IFAR presentation was the final nail in the Matter Pollock coffin, Matter, I guess we should not be surprised to learn, is not giving up. Epstein says additional research is being conducted in Europe, and it's "expected to take some time .... 'It’s going to be a while before all the facts are set forth.'"

UPDATE: Martin responds.

"It is now the intention of the foundation to completely clarify any ownership over the title once and for all" (UPDATED)

I missed this last week, but the Andrew Lloyd Webber Art Foundation, after winning dismissal of a New York action seeking to reclaim a Picasso painting it had been trying to auction off, has started proceedings in the British courts to confirm its ownership of the work.

UPDATE: Related story from Carol Vogel in The New York Times Saturday:

"In a legal strategy that is spreading in the art world, the Museum of Modern Art and the Solomon R. Guggenheim Foundation jointly asked a federal court yesterday to declare them the owners of two Picasso paintings that a claimant says were sold under duress in Nazi Germany. A request for declaratory judgment, filed in Federal District Court in Manhattan, involves 'Boy Leading a Horse' (1906), donated to MoMA in 1964 by William S. Paley, the founder of CBS, and 'Le Moulin de la Galette' (1900), given to the Guggenheim in 1963 by the art dealer Justin K. Thannhauser. The museums asked the court to declare that the paintings had never been part of a forced sale and rightfully belong to them."

Another Photographer Lawsuit

From this morning's New York Sun:

"A Columbia University student who was handcuffed and detained for taking pictures in the subway while working on an art project is suing the New York City Police Department."

The suit is being brought by the New York Civil Liberties Union. A similar case is ongoing in Washington (see here, with an update here).

"Oh, Richard Prince has a photograph just like that!"

Randy Kennedy in today's New York Times:

"Since the late 1970s, when Richard Prince became known as a pioneer of appropriation art — photographing other photographs, usually from magazine ads, then enlarging and exhibiting them in galleries — the question has always hovered just outside the frames: What do the photographers who took the original pictures think of these pictures of their pictures, apotheosized into art but without their names anywhere in sight?"

To find out, he talks to one of them, "a successful commercial photographer from Chicago named Jim Krantz," whose work Prince used as part of his well-known Marlboro Man series. Krantz says he just wants some credit and has "no intention of seeking money from or suing" Prince, and the story largely skims over the legal issues, saying only that Prince's "borrowings" "seem to be protected by fair use exceptions to copyright law." The situation is actually much more complicated than that. You could organize a whole symposium about the legal issues raised by appropriation art -- in fact, someone has, and I wrote about it here. As I said then:

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

More on today's story from Sergio Muñoz Sarmiento here. Prince's retrospective at the Guggenheim continues through Jan. 9.

The Best Interests of the People of the State of Tennessee

Hazel O'Leary, Fisk University's President, says it could be "several years" before the school sees any money from its proposed deal with the Crystal Bridges Museum. A trial to determine whether the sale can go forward is scheduled for February, and O'Leary says she "expects that even if the school wins its case, an appeal could take up to another three years."

ICA Settlement

Boston's Institute of Contemporary Art has agreed to pay $2.2 million to settle a lawsuit brought by the construction company initially hired to build its new space. Geoff Edgers reports in the Boston Globe. Earlier post here.

Bridging the Gap

Bill Patry weighs in on the dismissal of Santiago Calatrava's lawsuit over modifications to his bridge in Bilbao, mentioned earlier here. He's heartened to see that "European courts can be every bit as pragmatic as their crass U.S. counterparts when the facts are right: yes there is this thing copyright, yes it was violated, but hey there are other factors which can trump it, namely the public interest."

Randolph News

Opponents of the Randolph College art sale have raised half the million dollars needed to secure the temporary injunction blocking the sale and have been given an extension of time until February 15 to raise the other half. Lee Rosenbaum calls it "another court victory" for the plaintiffs, but I'm not sure it's "another" victory so much as a continuation of the initial victory: the sale is on hold until the court can resolve the case on its merits, and, if the sale is ultimately approved and the delay ends up costing the school money (because of changed market conditions, for example), there will now be a million dollars available to make it whole. As Richard Lacayo notes, "this prolonged drama has many more chapters to come."

1 in 10

That's how many paintings on the market aren't what they're claimed to be, according to Melbourne University art conservation expert Robyn Sloggett. Story here.

"The defamation problem, coupled with the 'right of publicity,' are legal issues that could give legitimate artists like Kauper headaches"

Writing in the Boston Phoenix, Harvey Silverglate says Kurt Kauper's (imagined) nude paintings of Boston Bruin hockey heroes (mentioned earlier here) reminded him "of the convoluted mish-mash that First Amendment law has become." He argues that the legal picture "isn't as simple" as Geoff Edgers's Boston Globe article made it seem, for several reasons. First, he thinks the subject of this sort of work could have a defamation claim to the extent the painting suggests he actually consented to, and sat for, the painting (I guess the defamatory statement expressed would be: "Bobby Orr is the kind of person who would pose naked for a painting"). Next, he wonders what would happen "if the painting were featured in a museum exhibition, and the athlete's nude image were on the cover of the show's catalogue, which was then reproduced thousands of times and even sold commercially, as some museum show catalogues are?" (It's worth noting in this regard that the image at issue in Nussenzweig v. DiCorcia, discussed recently here, and mentioned by Silverglate in the article, was included in the catalogue for the exhibition it was a part of.) And last, he notes that, while the use may well be protected under New York, or Massachusetts, law, "some states provide more onerous restrictions on artists than others, usually under the guise of protecting the subjects who are claiming a property right in their own image or likeness" (i.e., so-called "rights of publicity").

The end result, he argues, is that "the occasional conflict between First Amendment rights, copyright interests, and an individual's private property right to his or her own image has caused many a judge to scratch his head, and many a lawyer to offer advice hedged with qualifications."

With qualifications, I think that conclusion's about right. Sort of. As a general matter.

Again with the Santa's Butt

A beer distributor is suing the Maine Bureau of Liquor Enforcement for "barring it from selling a beer with a label depicting Santa Claus enjoying a pint of brew." A complaint was filed in federal court last week by the Maine Civil Liberties Union.

Same thing happened last year, with a different, but thematically similar, label. "'Last year it was elves. This year it's Santa. Maybe next year it'll be reindeer,' said Daniel Shelton, owner of the [distributor]."

Strategery

Interesting move in the Randolph College chess game yesterday. According this report from Christa Desrets in the Lynchburg News & Advance, the school withdrew (without prejudice) its petition having to do with the Louise Jordan Smith trust, narrowing the focus of the legal fight to the four specific paintings it has been trying to sell (which were not purchased by the trust). Those four paintings had been scheduled for sale this month at Christie’s, until the Virginia courts granted opponents of the sale a six month injunction, subject to their posting a $1 million bond by this coming Monday. As Desrets notes:

"In September, opponents to the sale ... filed a motion to intervene in response to the college’s litigation regarding the Smith trust. They asked the court to declare that the entirety of the collection is interconnected and should be protected from sale or sharing. Because the college has withdrawn its suit on the matter, [a Randolph spokeswoman] said, that response litigation becomes a 'moot point.'"

"The saga of the 'Matter Pollocks' ... appears to have reached a quiet conclusion on Wednesday night"

That's Kate Taylor's take in the New York Sun on the IFAR-event I mentioned yesterday. She describes the evening as "alternately suspenseful, comic, and just plain odd." An example: "Mr. Martin delivered his lecture in the low, foreboding tone of someone describing a criminal investigation. At one point, he observed that the presence of one of the anachronistic pigments in the bottom layers of two paintings — beneath the application of the letters 'JP' on one painting and another apparent signature on the back side of another — 'may raise questions of intentional misattribution or fraud.'"

She also relates the following exchange from the Q & A:

"Addressing himself to [NYU's Pepe] Karmel, [Harvard curator Theodore] Stebbins asked: 'Since most people agree that, with a very few exceptions, they don't look like Pollocks, why are we here? Why did this [story] have legs?' 'Fear,' Mr. Karmel responded, noting that experts who offer opinions about authenticity risk being sued by disgruntled owners. ... 'Those of us who are scholars don't want to get involved.'"

Cleveland Plain Dealer art critic Steven Litt has been following this story as well, and his report on the event is here.

Icing

Geoff Edgers has a story in today's Boston Globe on Kurt Kauper's show of paintings at Deitch Projects called "Everybody Knew That Canadians Were The Best Hockey Players" and featuring nude portraits of Boston Bruin legends Bobby Orr and Derek Sanderson. You can see images of the works here. The story correctly notes that the paintings are protected by the First Amendment, though Kauper probably couldn't market the players' images on T-shirts or postcards.

Matter Pollocks Update

Forensic scientist James Martin spoke about his research regarding the "Matter Pollocks" at an IFAR-sponsored event last night. Randy Kennedy reports in today's New York Times that Martin said many of the works contain "paints and materials that were not available until after the artist’s death in 1956" and "at least one was painted on a board that was not produced earlier than the late 1970s or early ’80s." Kennedy says "the findings add to a growing body of evidence that the paintings — 32 in all, including some ephemera and works on paper — were made by someone other than Pollock or at least that many were substantially altered after the artist’s death." He also explains why it took so long for Martin's research to see the light of day:

"Mr. Martin was commissioned to examine the paintings in 2005 by their owner, Alex Matter.... Mr. Matter has said he found the paintings ... in 2002 or 2003 in a Long Island storage container that had belonged to his father. Although Mr. Martin ... completed the analysis last fall, he has said he did not release it earlier because Mr. Matter’s lawyer told him he would face a lawsuit if he did so. It is unclear why he chose to go public now. Mr. Matter’s lawyer ... has denied threatening Mr. Martin, but he has said that he did tell Mr. Martin he was not authorized to release the report because Mr. Matter ... did not feel it was complete."

"The greatest gallery in New York has shut its doors, probably forever"

Lance Esplund has an elegy for Salander-O'Reilly Galleries in this morning's New York Sun.

Tang v. Putruss

Rebecca Tushnet discusses a recent photography case from the Eastern District of Michigan involving issues of (1) joint authorship and (2) computation of statutory damages.

A bridge too far

Santiago Calatrava's lawsuit against the city of Bilbao over modifications to the bridge he designed there has been dismissed. Apparently the court ruled that, since "the walkway is essential for fluid pedestrian movement, the public interest must prevail over the private." (As I mentioned in an earlier post on the case, bridges are denied moral rights protection under U.S. law for largely the same reason.)

Calatrava says he will appeal.

More on the Astor Charges

From the AP:

"Prosecutors say [Marshall] falsely told Astor she was running out of money to persuade her to sell a Childe Hassam painting, 'Up the Avenue from 34th Street,' for $10 million; he allegedly took $2 million as a sales commission. He also is accused of taking two works of art, worth about $500,000 each, from Astor's house while she still lived there."

Step on a crack (UPDATED 2X)

Fifteen visitors to the Tate Modern have been injured since the opening of Doris Salcedo's Shibboleth, a large crack in the floor which, according to ARTINFO.com, "widens as it runs the length of the museum's 548-feet-long Turbine Hall" and is "intended to symbolize racial hatred and division." The museum "has positioned staff to monitor visitors around the hall, posted warning signs in the gallery, and distributed leaflets warning of potential injury, but four of the 15 accidents, some of which resulted in minor injuries, have nevertheless been reported to government authorities."

Art News Blog offers an explanation.

UPDATE: Ed Winkleman "can't imagine a museum taking such a risk" in "the highly more litigious U.S."

UPDATE 2: Insurance lawyer George Wallace: "Brings a [w]hole new meaning to the phrase 'Fall Art Season,' eh?"

"This is not a true restoration—it’s a reproduction"

The Chicago Reader has more on Israeli artist Yaacov Agam's battle to prevent the reinstallation of his sculpture Communication X9 in a downtown office tower, mentioned earlier here. He continues to maintain that the restoration has resulted in the creation of an unauthorized derivative work:

"The idea that the work is now a copy has more than casual significance. Although this is the kind of mess the Visual Artists Rights Act of 1990 was devised to address, that legislation—which allowed Chapman Kelley to score a recent court victory over the Chicago Park District for destroying his Grant Park wildflower garden—won’t help Agam. Communication X9 went up in ’83, and the law isn’t retroactive. Before VARA, artists had to rely on protections like copyright, and attorney Scott Hodes, who’s representing Agam, says that area of the law would be applicable here. Hodes says Agam retains the copyright and so his permission would be needed for any derivative work."

"As a businessperson, I would be very concerned at the deal Fisk has cut with the museum in Arkansas"

Tennessee Governor Phil Bredesen isn't impressed with Fisk University's proposed deal with the Crystal Bridges Museum. He says "estimates from art experts and insurers indicate the collection could easily be worth $150 million. 'And $30 million for half of it is not a very good deal,' he said." He adds:

"Ultimately the court and Fisk have got to decide, are you going to sell this thing or not? And if not, fine. Put it aside and get on with other ways of solving the Fisk problem. If you're going to sell it, I'd rather they go out and sell it properly and take the money and put it in the bank and secure Fisk's long-term future."

I'm not surprised people are becoming frustrated with the way this is being handled.

Criminal Charges in Astor Case

The New York Times reports today that Brooke Astor’s son, Anthony Marshall, and one of her former lawyers have been indicted on criminal charges "stemming from the stewardship of her financial affairs and the handling of her will":

"Prosecutors were believed to be investigating millions of dollars in cash, property and stocks that Mr. Marshall obtained over the years in his role as steward of his mother’s finances. That included the sale of one of Mrs. Astor’s favorite paintings, 'Flags, Fifth Avenue,' also known as 'Up the Avenue from Thirty-Fourth Street, May 1917,' by Childe Hassam, for $10 million. Mr. Marshall collected a $2 million fee from his mother for handling the transaction."

Earlier post here.

One Man's Trash ...

The Rufino Tamayo painting rescued from the trash on a New York City sidewalk sold for more than $1 million at Sotheby's this week.

"I would say this is a very close call"

Sewell Chan of The New York Times reports:

"The New York City Landmarks Preservation Commission decided yesterday that the Guggenheim should maintain the same light-gray paint shade it has had since 1992, when a major expansion of the museum ... was completed, rather than the original light yellow."

Museum CFO Charged

The Seattle Times reports that the former chief financial officer of the Bellevue Arts Museum has been charged with 38 counts of felony theft for embezzling $300,000 from the museum. "Prosecutors say [she] stole most of the money by writing checks to herself and then covering them up with fake entries in the museum's financial ledger."

"The very legitimacy of Randolph College is at issue"

The Charlottesville Daily Progress has an editorial on the temporarily-stalled Randolph College art sale today:

"[T]wo pieces of artwork proposed for sale were donated without restrictions. Two more weren’t donated at all - they were purchased.

"Critics of the sale say that doesn’t matter.

"Oh, yes, it does matter.

"At least, as owner, the school ought to be able to sell the paintings it bought.

"As for the two paintings donated without restrictions, sale critics say the donors would have restricted their gifts if they had guessed the paintings would ever be up for sale.

"But business decisions like this cannot rely on would have/might have/could have. Decisions cannot fairly be based on guesses - in this case not just on donor intent, but guesses about donor intent.

"Donors can rightly restrict the use of gifts, through contractual arrangements."

It goes on to point out that "the museum is not a stand-alone entity. It is part of the college. And the college is fighting for its life. Museum supporters say its educational mission would be compromised by the sale; college leaders say that without the sale, the entire college is at risk of going under. Which is more important?"

Still, despite all that, the paper thinks the Virginia Supreme Court was right to enjoin the sale. Why?

"Other lawsuits are pending against Randolph for having switched from an all-female school to a co-ed institution. ... While those lawsuits are pending, the very legitimacy of Randolph College is at issue.

"If the school had no right to remake itself, then its current incarnation is illegitimate - and it therefore has no authority to dispose of the school’s assets.

"It would seem that the courts must first answer the question of whether the new co-ed version of the college may even be permitted to exist. Then the question of the art sale can be settled.

"Of course, by then the question may be moot. Randolph College may cease to exist because it has run out of money."

"Possibly the only way such pieces will ever again be shown"

Portfolio magazine presents The Gallery of Stolen Art. "The fate of the art pictured in our slide show ... remains a puzzle to law-enforcement officials. Here's a rare opportunity to see these works."

No Standing

Last month Callen Bair wondered about certain "art world dramas that play out in the public eye before everyone loses interest," mentioning as an example: "What about Andrew Lloyd Webber's Picasso?" Today we have an answer: "A New York state court Monday dismissed a lawsuit filed by the alleged owner of a Pablo Picasso painting who claimed his great-uncle was forced by the Nazis to sell the artwork." The case was decided on narrow standing grounds -- "Notwithstanding the very significant issues raised by this litigation, this Court is constrained to dismiss it because plaintiff does not have standing to bring this action without being appointed a personal representative of the estate" -- and may not be the end of the story: "to pursue this matter, plaintiff will have to convince the Surrogate's Court that he qualifies to be appointed the personal representative of Paul von Mendelssohn-Barthody's United States estate consisting of the painting."

The decision is here. As I mentioned at the time the suit was filed, even if he gets past the standing hurdle, the plaintiff still has an uphill climb.

Do I amuse you?

Add Robert De Niro to the list of those suing Larry Salander and his gallery. The New York Post reports that 12 paintings by De Niro's late father were allegedly among the 50 pieces that Salander-O'Reilly delivered to an Italian gallery this spring to pay off some debt (or, as the Post puts it, "in an effort to stem severe financial hemorrhaging"). I recently mentioned a different approach some of the other owners were taking to try to get those works back.

"What happens after that, nobody knows" (UPDATED)

The Washington Post had an article today on the Randolph College injunction. It points out that the Virginia Supreme Court's order did not provide the reasoning behind the ruling (you can read the order here), includes some more elation on the part of the group opposing the sales, and quotes a Randolph spokeswoman as saying that, after the six-month injunction period, "we will take another look at whether we will continue an auction of the paintings."

UPDATE: Christa Desrets has a lengthy story in Sunday's Lynchburg News & Advance reminding us why the school is trying to sell the paintings in the first place:

"In about three weeks, ... the Southern Association of Colleges and Schools, Randolph’s accrediting institution, will decide whether to remove the college from warning, keep it on warning, place it on probation, or remove accreditation. In recent months, the former Randolph-Macon Woman’s College has transformed from single-sex to coeducational, reduced staff and faculty, announced closings of departments, lowered its tuition discount rate, placed salary freezes, reduced pension contributions, tightened expenses, and made the decision to sell four paintings from the Maier Museum of Art - all to strengthen the college’s finances and ensure its future, according to school officials. Last year, ... SACS placed the college on warning after discovering the school was spending its endowment at an unsustainable rate."

"So forget about deterrence"

Lawprof Ann Althouse thinks the Twombly kiss verdict will be encouraging news for art vandals everywhere:

"In the France that this judge believes in, if you're willing to fork over a couple thousand dollars, you can put your mark on a highly valuable work of art and get famous doing it. Of course, Sam is herself an artist, and now you know her name."

Sergio Muñoz-Sarmiento discovers a loophole in French law.

"You can't say that with $4,000 a month in food expenses"

Rough day in bankruptcy court for Larry Salander.

Nussenzweig v. DiCorcia: Affirmed

Via Sergio Muñoz-Sarmiento, I see that the New York State Court of Appeals has affirmed the dismissal of Erno Nussenzweig's privacy suit against Philip-Lorca diCorcia, discussed earlier here. The decision, which was limited to statute of limitations grounds, is here. Sergio doesn't seem to like the decision, but, while I agree that the statute of limitations ruling is pretty harsh, the substantive decision below -- that the use of Nussenzweig's image was protected by the First Amendment and was not for trade or advertising purposes -- seems correct to me.

You can see the photograph at issue here. The case has its own Wikipedia entry. Sewell Chan of the New York Times has more on today's decision here.

Kiss Conviction

The woman who left a lipstick smudge on a Cy Twombly painting as "an act of love" has been convicted by a French court of "voluntarily damaging a work of art" and sentenced to 100 hours of community service. Story here.

BREAKING: Randolph Injunction Back On (UPDATED)

The Virginia Supreme Court has spoken. Brief story here.

UPDATE: Christie's has pulled the paintings from auction. Callen Bair recaps here. Richard Lacayo notes that "for now the opponents are elated. But this cliff hanger isn't over yet." Here they are, being elated. Here too.

ACLU Sues on Behalf of Art Prof

From the AP:

"The American Civil Liberties Union of Washington has filed a lawsuit on behalf of a University of Washington professor it says was detained by city of Snohomish police for taking photographs of power lines as part of an art project. The professor is 54-year-old Shirley Scheier, an associate professor of fine art at the UW. The ACLU describes Scheier as an artist who uses photos and public land and public structures in her artistic prints. The ACLU says the suit was filed today in Snohomish County Superior Court in Everett and seeks compensation for her wrongful detention. ... The suit says Scheier was detained by Snohomish police in October 2005 near a federal Bonneville Power Administration substation. It says police frisked and handcuffed Scheier, and placed her in the back of a police car for almost 30 minutes."

Randolph Bond Deadline Passes

From the Lynchburg News & Advance: "An injunction that could have halted the auction of four Randolph College paintings will not go into effect because a required $10 million bond was not posted by a 4:30 p.m. deadline today."

Sotheby's Stock Up 10%

After a record-setting contemporary art sale last night. Story here.

Randolph Clock Ticking

It doesn't look like the Randolph College plaintiffs are going to be able to post the $10 million bond required to stop the sale of four paintings at auction this month. The deadline is 4:30 p.m. tomorrow. More here from the Lynchburg News & Advance.

In an earlier statement, a spokesperson for the group fighting the sales said a lower bond amount was justified because "if the Plaintiffs lose, the College will still have possession of the paintings and can simply sell them at a later date when the art market may be in a more favorable position and when the taint of the College's actions in this matter may have left buyers' memory" -- but of course the bond is required precisely in case the opposite happens (the art market comes to be in a less favorable position).

As Lee Rosenbaum notes, the group's lawyer is playing hardball: "Injunction or no, if we prevail on the merits of the case next year ... then further litigation focusing on the return of the art will commence with those that purchase these paintings."

Defective

Christopher Geary of the Construction Litigation Law Blog offer some thoughts on the MIT-Gehry dispute:

"It is disconcerting to see that a superstar architect, a global construction company and a world-class institute of higher learning, with $300 Million to spend, cannot seem to create a water-tight building. Mr. Gehry seems to think that construction defects are par for the course. In that context, it comes as no surprise that we find problems with much simpler, mass-produced homes and condominiums."

Museum Photography Revisited

Cory Doctorow has a piece in the U.K. Guardian Unlimited on a "delicious irony" he finds in a pop art exhibition currently up at London's National Portrait Gallery:

"Apparently [the artists whose work is featured in the exhibition] cut up magazines, copied comic books, drew trademarked cartoon characters like Minnie Mouse, reproduced covers from Time magazine, made ironic use of a cartoon Charles Atlas, painted over iconic photos of James Dean and Elvis Presley - and that's just in the first of seven rooms. ... Celebrated pop artists including Larry Poons, Robert Rauschenberg and Andy Warhol created these images by nicking the work of others, without permission, and transforming it to make statements and evoke emotions never countenanced by the original creators. Despite this, the programme does not say a word about copyright. ... Reading the programme, you can only assume that the curators' message about copyright is that where free expression is concerned, the rights of the creators of the original source material must take a back seat to those of the pop artists. There is, however, another message about copyright in the National Portrait Gallery: it is implicit in the 'No Photography' signs prominently displayed throughout its rooms .... These signs are not intended to protect the works from the depredations of camera flashes (otherwise they would read 'No Flash Photography'). No, the ban on pictures is meant to safeguard the copyright of the works hung on the walls - a fact that every member of staff I asked instantly confirmed. ... I wasn't even allowed to photograph the 'No Photographs' sign. A member of staff explained that the typography and layout of the signs was itself copyrighted."

Some New York museums follow this practice of not allowing any photography. Others, however, including MoMA and the Met, do allow it, with certain restrictions (for example, no flash). See here.

Not so fast . . . (UPDATED)

Turns out that the Randolph College paintings may not be blocked from sale after all. Seems the judge ordered the plaintiffs to post a $10 million bond in order for the injunction to take effect (typically, to get an injunction you have to post a bond, and if the injunction is later reversed the enjoined party is entitled to recover its damages, at least up to the limit of the bond, caused by the wrongful injunction). According to Christa Desrets in the Lynchburg News & Advance, the Randolph plaintiffs are trying to get the bond reduced or eliminated and, at the same time, trying to figure out how to pay it if those efforts fail. The first of the four paintings is scheduled to be sold Nov. 19.

UPDATE (Nov. 13): Lee Rosenbaum has the latest from Anne Yastremski of "Preserve Educational Choice," the group leading the charge to prevent the sales. Yastremski says "it is possible" the judge will hear argument on their motion to reduce or eliminate the bond this afternoon.

The MIT-Gehry Complaint ...

... is available here, courtesy of The Tech, the MIT student newspaper. The claims are breach of contract and negligence.

Sotheby's Stock Tumbles

After a disappointing sale last night. Bloomberg has the story here.

BREAKING: Randolph Injunction

A Lynchburg judge has granted a preliminary injunction blocking Randolph College from selling four paintings at Christie's later this month. Christa Desrets breaks the news in the Lynchburg News & Advance. The judge apparently held that "the harm if the art is sold is greater than the harm if the art is not sold," which I suppose is true: if a fuller consideration shows that the school has the right to sell the works, they can always be sold later; but if the sale were to go forward and the court later finds it was improper, there would be no way to correct the error. Randolph plans an immediate appeal.

Today's Salander News

ARTINFO's Andrew Goldstein reports that the New York state court today stayed all claims against Larry Salander because of the bankruptcy petition he's filed. The next hearing in the bankruptcy case is scheduled for the end of next week.

And in today's New York Times, James Barron took a closer look at one of the many Salander-related claims, this one brought in federal court by two artists and two artists' estates, not against Salander or his gallery but, instead, against a gallery in Rome. They claim that, without their permission, Salander-O'Reilly purported to transfer ownership of more than 50 of their works to settle a $5 million debt to the Italian gallery.

Assumption of risk?

At the Wall Street Journal Law Blog today, Peter Lattman discusses MIT's lawsuit against Frank Gehry: "What’s perhaps most interesting about this lawsuit is the following: Because of their unconventional design — e.g., colliding roofs, seemingly impossible angles — do Gehry patrons assume a certain risk when they commission him to design a building? Robert Campbell, an architect critic for the [Boston] Globe, touched on the issue. 'Because he’s so daring, you figure you’ve got to be daring, too, if you’re a client . . . You know if you hire Frank Gehry there are going to be new kinds of problems.' He added that clients accept the risks because 'they’ll get a building like no other building.'"

Or, as NPR's Tom Regan puts it: "should someone who commissions a striking design like this expect to sacrifice some functionality?

Brandeis Deaccessioning (UPDATED)

Geoff Edgers reports in today's Boston Globe that Brandeis University's Rose Art Museum is selling Childe Hassam's "Sunset at Sea" at Christie's on Nov. 29. It's estimated at $2-3 million.

Go get 'em, Lee.

UPDATE: Seems Lee mentioned this last week. But where's the passion?

"There's enough here for a dissertation about the relationship between copyright, authorship, and authenticity"

Georgetown Law's Rebecca Tushnet takes a crack at unraveling the Renoir-Guino saga. I gave it a try here and here, before admitting defeat here.

Randolph Dates

Christa Desrets reports in the Lynchburg News & Advance today that a hearing has been set for Thursday afternoon in the lawsuit involving four paintings owned by Randolph College that are scheduled for auction this month.

In the other Randolph suit, this one involving the trust created under the will of former Randolph art professor Louise Jordan Smith, a hearing has been scheduled for Nov. 15 (before the same judge).

MIT v. Gehry (UPDATED)

The Boston Globe reports that MIT is suing Frank Gehry in Massachusetts state court, claiming that his design for the school's Stata Center "caused leaks to spring, masonry to crack, mold to grow, and drainage to back up."

Insurance lawyer George Wallace says: "Not surprisingly, the architects blame the engineers who blame the contractors who blame the subcontractors and so on down the line. And we can safely assume that everyone is busily tendering the suit to their respective insurers."

Ann Althouse asks: "Do you want a wild and crazy building dreamed up by an artist? Stop and think whether all the less strange buildings look the way they do for a reason."

UPDATED: The New York Times will have this story in tomorrow's paper. Gehry says "the issues are fairly minor. M.I.T. is after our insurance." He also claims "'value engineering' — the process by which elements of a project are eliminated to cut costs — was largely responsible for the problems. 'There are things that were left out of the design,' he said. 'The client chose not to put certain devices on the roofs, to save money.'"

No Surprise (UPDATED 2X)

Larry Salander filed for personal bankruptcy protection today.

UPDATE: More from James Barron in this morning's New York Times. (Apparently the filing was Friday, not, as I indicated above, yesterday.)

UPDATE 2: The New York Sun had a page one story today headed "Salander Case May Change the Art Market," though it's short on details on how it might change things. The only specific idea that's mentioned is a title registry (similar to the ones in place for cars and real estate), but, while that makes some sense in theory, the practical problems seem to me pretty insurmountable (what to do, for example, about the many many works already out there in circulation?). Some interesting ideas were batted around over at Artworld Salon a couple weeks ago (including in the comments).

“I think what Crystal Bridges is doing is actually raising the profile of American art in this country"

More on the "Walton Effect," this time from the (hometown) Benton County Daily Record.

Randolph News

Christa Desrets had an update on the Randolph College deaccessioning in yesterday's Lynchburg News & Advance. She says one of the four paintings up for sale -- George Bellows’s "Men of the Docks," which will be sold at Christie's on Nov. 29 -- "is expected to set a new record for the most expensive piece of American art sold at auction." According to Christie's, "the current world auction record for an American painting was also set by a Bellows painting, 'Polo Crowd,' when it sold for $27.7 million in 1999." She also reports that a hearing date has not yet been set in the recently-filed lawsuit seeking to block the sale. A Christie's spokeswoman is quoted as saying, "Randolph College is the owner of the pictures, and it is our understanding and belief that the Board of Trustees has the legal authority to consign them for sale." The News & Advance also has the descriptions of the four works as they appear in the Christie's catalogue.

Meanwhile, the AP reported last week that Randolph is eliminating five academic departments, including nine full-time faculty positions. This follows a staff reduction in June, when the college announced it was cutting 30 jobs. I think one thing the anti-deaccessionists often don't sufficiently acknowledge is that there are always going to be trade-offs involved. It's very easy to sit back and say work should never be sold, but there are real costs that follow from that position.

Section 1031 News

The folks at Strategic Property Exchanges are reporting that the "Senate Finance Committee is currently considering the elimination of Section 1031 treatment for the sale of collectibles," which of course includes works of art.

As I recently noted, I have my doubts about Section 1031's application to sales of art under current law, so this may be less a potential change in the law than a clarification of existing law.

"The art trade seems convinced that secrecy is vital to making deals" (UPDATED)

Daniel Grant had a story in yesterday's Wall Street Journal on "Secrets of the Auction Houses." He mentions at the very end that "a bill requiring auction houses to reveal their reserve prices is awaiting action in the [New York] State Legislature," but he doesn't discuss the (admittedly fairly toothless) auction house regulations that are already on the books in New York City. For one thing, if an auction house "has any interest, direct or indirect, in an article, including a guaranteed minimum, ... the fact such interest exists must be disclosed" in the auction catalogue or other printed material relating to the sale. (New York City Auction Regulations § 2-122(d).) The regulations do not, however, mandate disclosure of the precise nature or extent of the interest, including the amount of any guarantee.

The regulations also require that, if an auction house makes loans or advances to consignors, "this fact must be conspicuously disclosed in the auctioneer's catalogue or printed material." But this disclosure needn't be made on a lot-by-lot basis; it's enough for the auction house to include a general statement in the catalogue that it offers loans and/or advances to consignors. § 2-122(h). Similarly, section 2-122(f)(1) requires the auction house to disclose the fact that a sale is subject to a reserve -- but here again, this obligation can be satisfied by a general statement to that effect in the auction catalogue. The regulations also expressly permit the auctioneer to place so-called "chandelier" (or, as Grant calls them, "phantom") bids on behalf of the consignor up to the amount of the reserve (though this practice too must be disclosed in the auction catalogue). § 2-123(b). Once the bidding reaches the reserve, however, the auctioneer is prohibited from bidding any longer for itself or the consignor.

If you're interested, you should be able to find the regulations at this link. In the lefthand column, click on "Rules of the City of New York," then "Title 6 -- Department of Consumer Affairs," then "Chapter 2 -- Licenses," and finally "Subchapter M -- Auctioneers."

UPDATE: Felix Salmon finds the story "peculiar."

Hula Settlement (UPDATED)

The Honolulu Adverstiser reports on a settlement in the stained-glass hula case I posted about last year. Though the defendants had successfully fought off the plaintiff's request for a preliminary injunction, it seems that they no longer had the stomach to continue the fight:

"The [settlement] requires Island Treasures Art Gallery ... and artist Marylee Leialoha Colucci to pay [photographer Kim Taylor] Reece $60,000 for attorney's fees .... The stained-glass work at the center of the suit also cannot be publicly displayed, sold or offered for sale .... And Colucci cannot make other works that copy Reece photographs."

Bernstein and Clarida covered this case in the New York Law Journal earlier this year.

UPDATE: "No one wins in this case."

"Up until recently, these institutions have tended to view the stewardship of their art as a public trust, to be passed on to posterity"

Michael J. Lewis compares and contrasts the Fisk and Randolph College deaccessionings:

"One can sympathize with Fisk, which is in dire financial straits. Ever since it was founded in 1866 as a school for freed slaves, it has teetered on the precipice of bankruptcy. Now, with all of its buildings mortgaged to the hilt, it has turned to this sale as a last resort. This is one case where a sale might do some good to gallery-goers: Fisk has never been able to exhibit its 101-piece collection, a gift from Georgia O’Keeffe, properly. The agreement to share its collection with the new Crystal Bridges Museum in Arkansas means that the public will at last be able to see such extraordinary works as O’Keeffe’s own Radiator Building, along with major works by Pablo Picasso, Marsden Hartley, and John Marin. Although the O’Keeffe estate is contesting the sale, claiming that it violates the terms of the gift, it cannot claim that the college has acted in bad faith.

"Matters are less clear-cut at Randolph .... While the school pleads financial hardship, it is hardly at the point of shutting its doors."

Meanwhile, in The Roanoke Times, John Long, who teaches history at Roanoke College but is also the director of the Salem Museum, argues that while "there is no legal authority to stop Randolph College from selling the four paintings or even tossing them into a bonfire," it's still wrong to view a museum's collection "as glorified yard sale inventory to be sold off to fund operations of the museum -- and still less of a parent organization like a college."

Today's Salander News (UPDATED)

Bloomberg's Philip Boroff reports that First Republic Bank is claiming $40 million in loans to Salander-O'Reilly and a related entity are in default. A bank spokesman is quoted as saying the loans are "adequately collateralized."

Boroff calls the Salander troubles "the biggest U.S. art market mess since the price-fixing scandal at auction houses in the 1990s."

UPDATE: Over at ARTINFO.com, Andrew Goldstein has the definitive summary of what we know so far about Salander's "gradual implosion" over the past three years. The next court hearing is scheduled for Nov. 7.

You thought the proposed NYC photography rules were bad? (UPDATED)

The Department of Interior wants to charge for photographing in National Parks.

UPDATE: Much more from Heather Goss at DCist.

An a-bridge-ment of his rights?

Bill Patry posts about a lawsuit brought by architect Santiago Calatrava against the city of Bilbao over changes to his famous bridge there, including the addition of an extension by Japanese architect Arata Isozaki. He claims that the new link "breaks the symmetry of the bridge, clumsily distorts the design... and damages the integrity of his work" and is "demanding €250,000 compensation and the dismantling of Isozaki's extension, or, if the new link remains, - €3m for 'moral damages.'" Bilbao's mayor responds: "If it's his intellectual property, let him take his intellectual property. We've had enough of the dictatorship of Calatrava saying we can't touch his little bridge. We've had enough of this superstar."

As Patry points out, under U.S. law bridges are not protected by the 1990 Architectural Works Protection Act "based on a concern that they and related transportation structures are too essential to the public to be tied up in copyright disputes. Moreover, even those works of architecture that were included were denied moral rights."

Revised Public Photography Rules (UPDATED)

Remember this summer's controversial proposed regulations concerning public photography in New York (which, among other criticisms, earned a city official a World's Worst Person designation from Keith Olbermann)? Well, the city is set to unveil a new set of proposed rules which should meet with much less resistance:

"Amateur photographers and independent filmmakers ... will not need to obtain permits or insurance under new rules being proposed by the Bloomberg administration. The rules, to be released on Tuesday for public comment, would generally allow people using hand-held equipment, including tripods, to shoot for any length of time on sidewalks and in parks as long as they leave sufficient room for pedestrians. The proposal ... was revised after a passionate outcry over the summer .... Under the first proposal, any group of two or more people using a camera in a public location for more than half an hour, and any group of five or more people using a tripod for more than 10 minutes, would have needed permits and at least $1 million in insurance."

Under the new proposed rules, shoots "that block traffic or leave less than eight feet of open walkway would require permits and a minimum of $1 million in insurance, as would those using vehicles and equipment that is not hand-held. Officials can waive the insurance requirement if an applicant can show that it would create a financial hardship. Filmmakers and photographers who want the comfort of proof that they are entitled to shoot in a public location would be able to get an optional permit, which does not require insurance."

The New York Civil Liberties Union is pleased.

UPDATE: So is Jim Johnson: "This is a resoundingly sensible decision even if the initally proposed regulations ... were stunningly idiotic. ... I guess my view is that the new regulations are a good move but that it would've been much more positive if the process of drafting them had been open rather than taking place behind closed doors in the Mayor's Office."

The proposed rules are now available here. Comments are due Dec. 13.

"The art business used to be one where people would shake hands and pictures would go out for millions of dollars and everybody got paid"

James Barron and Patrick McGeehan have a story in tomorrow's New York Times on "the widening legal and financial crisis that has made [Salander-O’Reilly Galleries] the talk of the art world." They give emphasis to two factors in particular: (1) the $154,000 a month rent for the East 71st gallery space and (2) Salander's recent attempt to "expand beyond his long-established niche" -- i.e., "to show and sell old masters after years of specializing in 20th-century American art." The result is by now well-known:

"Salander is facing a tangle of lawsuits from angry collectors who say he and Salander-O’Reilly defrauded its customers and business partners. The lawsuits accuse him of falling millions of dollars behind on obligations like the rent and the payments he had promised the well-connected people who invested in paintings with him. One lawsuit described the gallery as 'nothing more than a Ponzi scheme.' Some artists’ estates say the gallery sold consigned paintings without their permission for less than the paintings were worth, and never paid them. Some artists’ relatives say they have discovered works entrusted to Salander-O’Reilly in other galleries or museums. The Manhattan district attorney’s office says it has been reviewing complaints about Salander-O’Reilly, and at least one artist’s family has gone to the police."

The article closes by connecting this "tumble" with the recent Berry-Hill Galleries bankrupcty:

"To some dealers, Salander-O’Reilly’s problems bring to mind a scandal that rocked the art world in 2005 and culminated in a bankruptcy filing by another East Side gallery, the Berry-Hill Galleries. ... Ian Peck, the chief executive of a firm that arranges financing for dealers and collectors and that was Berry-Hill’s lead lender, suggested that the Berry-Hill bankruptcy and the Salander-O’Reilly situation point up the pitfalls of the art market, in which it can be hard to figure out who owns a painting, much less what it is really worth."

Lessons in Authentication

From The Daily Show.

"It’s a real New York story"

I forgot to link to this earlier in the week, but Carol Vogel had a great story in The New York Times about a woman who found a million dollar Rufino Tamayo painting in the garbage. Turns out it was stolen in 1987 and it's now been reunited with its rightful owner, who will be selling it at Sotheby's next month. The finder will receive a promised $15,000 reward from the seller, plus an undisclosed (but "smaller") finder’s fee from Sotheby’s.

Costco Counterfeits

The LA Times reports that Costco has settled a lawsuit brought by Cao Yong, "a Chinese immigrant painter of popular romantic cityscapes," alleging that it was selling phony prints of his work and providing fake certificates "signed and numbered by the artist." Terms of the settlement were not disclosed. According to the artist's lawyer, between seven and 15 prints were sold. It seems the suit was brought just a couple of weeks ago.

You can see samples of Cao's work here. Sergio Muñoz Sarmiento is not impressed.

This isn't Costco's first Art Law Blog appearance. See here.

Arrest in Goya Theft

From the AP:

"A truck driver who stole an art masterpiece from an unattended transport truck, then claimed he found it in his basement was charged with theft .... Steven Lee Olson, 49, was charged with stealing 'Children with a Cart,' a 1778 painting by famed Spanish artist Francisco de Goya, federal prosecutors said Wednesday. The painting was insured at a value of about $1 million. ... The painting was being trucked to the Solomon R. Guggenheim Museum in New York City from Ohio's Toledo Museum of Art last November. It was stolen as the transport drivers spent the night at a Pennsylvania motel. They discovered it missing the next morning. Within days, Olson contacted federal authorities through an attorney to say he found the painting in his basement, said U.S Attorney's office spokesman Michael Drewniak. After a lengthy investigation, authorities determined that Olson, a self-employed truck driver, had lifted the piece himself, Drewniak said."

Is it me? (UPDATED)

I'm becoming more and more confused by the Fisk lawsuit.

First, Judge Lyle ruled in July that Fisk cannot sell O'Keeffe's Radiator Building or Hartley's Painting No. 3 (at least that's how Jonathan Marx reported it in The Nashville Tennessean).

So she set a Sept. trial date on the museum's claims that Fisk violated the conditions of O'Keeffe's gift — and therefore that the entire Stieglitz Collection should be turned over to the museum.

When Fisk and the museum tried to settle those claims (in a manner that would have put about $30 million in the school's coffers), she rejected it, in large part because she believed a better offer had emerged from the Crystal Bridges Museum.

But now, when Fisk comes to get her blessing to accept that better offer, she sets another trial date . . . for February of next year. This, despite the fact that the university has said it expects to run out of money some time in December.

I suppose it's possible that the news reports aren't accurately describing the nature of Hobbs's rulings, but, if they are, I'm at a loss to understand what's going on.

UPDATE: It's not just me.