Sunday, September 30, 2007
Saturday, September 29, 2007
Friday, September 28, 2007
"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.
Thursday, September 27, 2007
"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."
Wednesday, September 26, 2007
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.
Tuesday, September 25, 2007
"Ponsor rejected that argument, saying an unfinished work didn't qualify for protection under the law"
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.'"
Monday, September 24, 2007
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.
Saturday, September 22, 2007
"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.
Wednesday, September 19, 2007
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.
Monday, September 17, 2007
"What artist will want to work with a museum with a reputation for open hostility towards those it commissions?"
Saturday, September 15, 2007
"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."
- "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.'"
- "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?"
"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.
Friday, September 14, 2007
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?
Tuesday, September 11, 2007
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."
Monday, September 10, 2007
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.
Sunday, September 09, 2007
"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."
"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."
Friday, September 07, 2007
"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."
Thursday, September 06, 2007
"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."
Wednesday, September 05, 2007
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."
Tuesday, September 04, 2007
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."