Friday, November 30, 2007


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 Because the college has withdrawn its suit on the matter, [a Randolph spokeswoman] said, that response litigation becomes a 'moot point.'"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.

Thursday, November 29, 2007


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.

Wednesday, November 28, 2007

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."

Tuesday, November 27, 2007

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, "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.

Wednesday, November 21, 2007

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."

Tuesday, November 20, 2007

"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.

Monday, November 19, 2007

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.

Saturday, November 17, 2007

"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.

Friday, November 16, 2007

"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.

Thursday, November 15, 2007

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.

Wednesday, November 14, 2007

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."

Tuesday, November 13, 2007


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.

Saturday, November 10, 2007

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.

Friday, November 09, 2007

The MIT-Gehry Complaint ...

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

Thursday, November 08, 2007

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.

Wednesday, November 07, 2007

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.

Tuesday, November 06, 2007

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.'"

Monday, November 05, 2007

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.

Sunday, November 04, 2007

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.

Saturday, November 03, 2007

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.

Thursday, November 01, 2007

"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."