Lost and Found

The Boston Globe reports on the discovery of three paintings (including a Hassam and a Courbet) that were stolen back in 1976. Now the question is, Who owns them -- the heir of the original owner, the insurance company that paid the claim three decades ago ($45,000, though they're worth millions today), or the guy who found them? The US attorney's office in Providence has asked the District Court to decide.

I think we can rule out the finder, as he seems to recognize (he says he would like the heir to get them, though he "would like the court to compensate him, too, covering his expenses and maybe throwing in a little reward"). As between the insurer and the heir, typically an insurance company acquires whatever rights the insured has to the paintings when it pays off a claim, so unless there was something unusual about this particular situation, the insurer would seem to have the pole position.

Sotheby's Suit

Josh Baer reports:

"Frank Boye has sued Sotheby’s alleging 'breach of contract and breach of fiducuary duty regarding two paintings by Paul Fisher and wrongly delivered by the defendant to the wrong person on 2006 after receipt of due notice of ownership.' They seek $ 1 million."

Didn't get the job

The bankruptcy court has denied Larry Salander's request for a job with his bankrupt gallery. Bloomberg's Philip Boroff reports that the judge was none too happy with the motion: "'You should be aware there are repercussions for such conduct,' Judge Cecelia Morris told Salander lawyer Richard Bernard in court yesterday in Poughkeepsie, New York. Morris said she may consider Bernard's 'fatally flawed motion' when he next applies for fees from the court."

"It appears Rauschenberg threw this stuff away. It is not like he's creating phony Rauschenbergs and putting his name on it"

Interesting story from the USA Today: Robert Rauschenberg is suing a Florida man for selling work he apparently fished out of Rauschenberg's trash in 1998. A local gallery is also named as a defendant.

The defendant's lawyer is quoted as saying: "Rauschenberg is an incredible artist. But what happens when that incredible artist discards material? Do the laws of abandonment apply?"

The only similar lawsuit I'm aware of is Frank Stella's 1982 suit against dealer Stephen Mazoh, which involved two damaged paintings he intended to throw away but which disappeared from the landing outside his studio and ultimately found their way to Mazoh's gallery. The case settled, with Stella recovering the works and destroying them.

Another reminder that anti-deaccessionism has its costs

"Amid a deepening financial crisis, Fisk administrators recently announced that they were ending all of the university's NCAA athletic programs after this year."

"Since, at present, there is no legal definition of 'forced sales,' courts are in the process of defining them"

Arabella Yip and Ron Spencer discuss the latest twist in Nazi-looted art litigation.

Act Now

Lee Rosenbaum mentions today that "auction sellers who were issued coupons, now redeemable for cash, in connection with Sotheby's and Christie's 2001 antitrust settlement, had better stop procrastinating. Some $45.4 million in coupons ($22.7 million at each auction house) are still outstanding, and they will become worthless pieces of paper on May 15."

She also has more on the increasing use of guarantees at Sotheby's over the last three years.

Sticky

Jason Kottke points to an initiative to get people to donate their intellectual property "into the public domain" when they die. It's an interesting idea, but I think there are real testamentary effectiveness problems here. Normally we can't dispose of property via a sticker on the back of a driver's license.

"I would like to be employed by my gallery to turn the stuff there -- the art -- into money so I can repay the debts I owe"

Bloomberg's Philip Boroff reports that Larry Salander has asked the bankruptcy court to authorize his gallery to rehire him to help locate artworks and turn them into cash. The creditors don't seem too thrilled with the idea (one creditor's lawyer is quoted as saying: "My impression, based upon my conversations with creditors, is it's a universal view that there are no circumstances in which the fox will be allowed back into the henhouse").

Randolph Update

The momentum seems to be staying with Randolph College in its deaccessioning lawsuit. Christa Desrets reports in the Lynchburg News & Advance that seven of the 19 plaintiffs disputing the sale have withdrawn from the case. A lawyer for the plaintiffs attributes the development to the recent decision by the court "par[ing] the scope of the case to issues related only to the four paintings, and not to any other litigation involving the school becoming coeducational." Randolph did not oppose the withdrawals, but "reserve[d] the right to seek recovery of damages from each of the plaintiffs."

Art Law Op-Eds (UPDATED)

It was art law day on the New York Times op-ed page yesterday. First, former State and Justice Department official Allan Gerson wrote about the "From Russia" exhibition at the Royal Academy of Arts that was nearly canceled until the British Parliament enacted special legislation providing immunity to Russia against any ownership claims with respect to the loaned paintings. He argues that "the sad truth is that the British government and the Royal Academy are now complicit in the theft of private property. If other countries follow Britain’s lead and pass 'immunity from seizure' legislation in the hopes of playing host to 'From Russia' or similar shows, the results will be far more pernicious than anyone can imagine."

Also, Eliane Karp-Toledo, the former first lady of Peru, isn't a fan of the preliminary agreement between Yale and Peru regarding the disposition of the school's Machu Picchu artifacts: "Having finally obtained a copy of the agreement, I can see that Yale continues to deny Peru the right to its cultural patrimony." Karp-Toledo figures prominently in this New York Times Magazine piece about the dispute from last summer. More recently, Paul Needham's been doing a good job covering the controversy for the Yale Daily News (see here and here).

UPDATE: Derek Fincham has some thoughts on the Machu Picchu issue.

Platforms

Kate Taylor's New York Sun story today on art-world fund-raising events for Barack Obama mentions that his "arts platform" includes support for "Senator Patrick Leahy's Artist-Museum Partnership Act, which would amend the Internal Revenue Code to allow artists to take full deductions on works that they donate to a museum or another nonprofit."

Fisk Trial Ends

The Fisk-O'Keeffe trial is over. Judge Lyle promised a ruling within 30 days.

Richard Lacayo notes: "If the O'Keeffe Museum gets its way, it seems to me it will be a Pyrrhic victory in public relations terms. Does the O'Keeffe really want to be known as the museum that seized an entire collection, an important teaching resource, from an historically black university?"

1031 Update

I mentioned a few months ago that legislation was being considered that would have eliminated like-kind exchange treatment under Section 1031 of the Internal Revenue Code for art and other collectibles. William Exeter of Exeter 1031 Exchange Services reports that that provision has been dropped from the pertinent legislation. At Blog1031.com, Steve Wayner of Bayview Financial Exchange Services takes a victory lap.

For more on art and Section 1031, see here.

"Double Threat" Crime?

Saul Levmore, Dean of the University of Chicago Law School, has an interesting theory as to why two of the four recently-stolen Buhrle Collection paintings turned up in an unlocked car just a few hundred yards from the museum.

"Mr Parisot wanted to give a fraudulent provenance to the drawings so that he could increase the prices for her work"

The Art Newspaper reports on fraud charges in Paris against art historian and Modigliani specialist Christian Parisot, who is accused of faking 77 drawings by Jeanne Hébuterne, "the artist’s mistress and mother of his daughter, [who] committed suicide, pregnant and aged just 21, the day after Modigliani died in 1920."

Wal-Mart Suit (UPDATED)

I see from the Iceland Review that Wal-Mart is suing Icelandic artist Lárus List over his registration of the domain name wa1mart.com. Apparently List showed a painting with that title in a gallery in Reykjavík a couple of years ago, and then registered the domain name. "List said the idea behind [the] artwork was to criticize American greed and cultural hegemony and that Wal-Mart’s lawsuit has proven his point."

UPDATE: More here.

More More Moore

I was surprised to learn that the University of Alabama's trademark lawsuit against artist Daniel Moore is still rolling on. Apparently a year and a half of mediation couldn't produce a settlement, and now the case is being assigned to a special master. I wrote about the dispute back in Nov. 2006 here.

Fisk Trial Underway

The Fisk-O'Keeffe trial begins today. "The Georgia O'Keeffe Museum ... hopes to seize the entire Stieglitz Collection based on its argument that Fisk has violated the conditions of O'Keeffe's donation." According to the Nashville Tennessean's Jonathan Marx, the trial is expected to last two days.

BREAKING: Paintings Found? (UPDATED)

Reports are trickling in that some or all of the four paintings stolen from a Zurich museum last week have been found.

UPDATE: Confirmed. Two of the four paintings have been recovered. "Police said they found the two paintings in a white car that was parked on the precinct of a mental hospital which is only a few hundred meters away from the private collection, which is located in an exclusive residential area in Zurich."

Speaking of not-so-sharp grappling hooks ...

There is this story from Spiegel Online.

Kids Today (UPDATED)

The New York Times has news this morning of an edgy young artist whose work was deemed inappropriate for the London Underground.

UPDATE: Decision reversed. Young Cranach is in the clear.

Butt For Cause?

A March 11 trial date has been set in the case of a Virginia high school art teacher who was fired "after a video showing him painting with his posterior and genitals appeared on the Internet." As the AP summarizes the claim, "his lawyer and the Virginia chapter of the American Civil Liberties Union are arguing that the school system violated his constitutional rights, and that what [he] did in his own time was his personal business."

"The mundane reality is that many art thieves are simply not the sharpest grappling hooks in the toolbag" (UPDATED 2X)

In today's New York Times Week in Review, Randy Kennedy discusses the "strange disconnect between the enduring mystique of art theft and the reality of its perpetrators."

Related article from a few days ago at cnn.com: "Everyone wonders, 'Why steal something you can't turn to cash quickly?' Art thieves do a simple risk versus reward evaluation, said Corine Wegener, associate curator of the Minneapolis Institute of Arts. Thieves know that 'even if they receive only a fraction of the work's market value, the cash gained was at low risk of death or injury -- museums can be a relatively soft target,' said Wegener."

UPDATE: Andrew Johnson in the UK Independent covers a lot of the same ground as Kennedy, as does Eric Gibson in the Wall Street Journal (Dr. No makes an appearance in all three pieces). CBC News talks to art theft scholar Noah Charney, who says "this is a classic example of contemporary theft by organized crime syndicates of works of art that will be used most probably for barter or collateral on a closed black market for equivalent value of other illicit goods like drugs or arms." Finally, an article in Slate looks at why it's so easy to steal art in Europe (short answer: "Smaller galleries and no guns").

UPDATE 2: More on Dr. No from Derek Fincham.

More on "To burn or not to burn?" (UPDATED)

A few weeks ago I mentioned the decision Nabokov's son was facing of whether or not to honor his father's request to destroy unpublished work he'd left behind. If a painter requests that her heirs destroy her remaining works, should they do so?

Tom Stoppard has now weighed in on the "burn" side: "It’s perfectly straightforward: Nabokov wanted it burnt, so burn it."

Tyler Cowen goes with "not burn": "Dead people don't count in the social welfare function. ... Nor is there an incentive problem. If we release Nabokov's papers as a book, maybe the next Nabokov will burn the manuscript in the first place. We're no worse off, compared to not releasing such manuscripts. Kafka told Max Brod to burn his works, but we're all glad Brod didn't. Think of the current generation as a player in the multiple selves game of the author (he could have burnt it himself long ago) and then the right answer is obvious." He also adds, in the comments: "A simple question to ask yourself is whether you would respect the wish of a parent to have a million dollar funeral, out of your money. The book manuscript is worth much more than that."

UPDATE: Tyler gets a lot of pushback in the comments, and responds here ("we limit all sorts of destructive transactions for the living, so why not every now and then a limitation upon the wishes of the dead?").

Randolph College News

The temporary injunction blocking the Randolph College deaccessioning has been lifted because opponents of the sale were unable to raise the second half of a $1 million bond required to keep it in place. Christa Desrets has the story in the Lynchburg News & Advance. My guess is, with the trial set to begin in May, the school will hold onto the paintings anyway, but we'll see. Things do seem to be going Randolph's way lately.

Resolved

The Chicago Tribune reports that The Art Institute of Chicago has resolved its claims for restitution for its fake Gauguin. The museum bought the sculpture in 1997 for $290,000 from English art dealer Libby Howie, who had bought it in 1994 at Sotheby's in London for about $30,000. According to the Tribune, "the museum said the 'matter has been resolved' without saying with whom it had reached agreement" (though it did thank Sotheby's for its "assistance in resolving the matter").

Manslaughter Charge (UPDATED)

Artist Maurice Agis, "who created an inflatable sculpture that killed two women when it flipped over in a freak gust of wind" in England in 2006, has been charged with manslaughter. BBC story here.

UPDATE: Ed Winkleman: "In the case of Mr. Agis, who is 76 years old, and whose piece worked perfectly for 10 years before this freak accident, a charge of manslaughter strikes me as political scapegoating. Yes, the victims deserve justice, but will imprisoning this man really bring them such?"

Fisked Messages

A short piece in the Nashville Scene criticizes Fisk University for being in "denial" about its inability to sell the Stieglitz Collection:

"Oh, poor forgetful Fisk University. School officials there have spent the last two years begging the Davidson County Chancery Court to let them sell artwork from the Alfred Stieglitz Collection .... Chancellor Ellen Hobbs Lyle ruled last June that Fisk couldn’t pawn any of the works, explicitly outlining that the art 'was not given to Fisk to use as a source of revenue.' Fisk apparently didn’t get the memo. ... [T]hey asked Lyle yet again for the legal right to sell out—er, sell off the collection—this time to Wal-Mart heiress Alice L. Walton, who was hoping to showcase the art six months a year in her museum in podunk Arkansas. Last Friday, Lyle again told Fisk officials what they should’ve already known by now: They can’t sell the art."

As I mentioned yesterday, however, this overlooks the fact that in her September ruling rejecting a proposed settlement with the O'Keeffe Museum, Lyle practically ordered Fisk to make a deal with Walton's museum.

More on the California Raids

Harvard lawprof Terry Martin e-mails some interesting thoughts on the recent California museum raids:

"These federal raids on the Silk Roads Gallery in Los Angeles and on four California museums raise an interesting set of links between foreign, state and federal law. At issue is the illegal importation of antiquities from Myanmar, Thailand and China. Put aside the fact that since 2003, the U.S. has banned the import of all Burmese products.

"Since 1961, Thailand has made buried, concealed or abandoned antiquities state property. Other antiquities may be exported only with a permit. Permits are never granted. Since 1982, China makes all undiscovered antiquities state property.

"Cal. Penal Code §497 makes it a state crime to bring into the state property stolen or received in another state:

Every person who, in another state or country steals or embezzles the property of another, or receives such property knowing it to have been stolen or embezzled, and brings the same into this state, may be convicted and punished in the same manner as if such larceny, or embezzlement, or receiving, had been committed in this state.

"The Archaeological Resources Protection Act, 16 U.S.C. § 470ee (c) makes trafficking in archaeological resources wrongfully obtained under State or local law a federal infraction:

No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law.

"Does this combination of foreign, state and federal laws make the National Stolen Property Act almost irrelevant in states with laws like California’s?"

Fax Campaign

There's a fax-the-mayor effort underway in support of the evicted artists at 475 Kent.

Fiskier

Lee Rosenbaum has more on the decision rejecting Fisk's proposal to share the Stieglitz Collection with the Crystal Bridges Museum.

Of all the strange aspects of the case, two stand out to me as the strangest.

The first is timing, or chronology. If it's contrary to O'Keeffe's intentions that any part of the Collection be sold, fine -- but then what have we been doing all this time? Why wasn't that finding made right at the beginning of the case? And how to explain the court's September ruling rejecting a proposed deal with the O'Keeffe Museum "in light of the possibility of securing a more advantageous solution with Crystal Bridges"? What was that about?

The other issue has to do with the O'Keeffe Museum's status as the successor to O'Keeffe. If this really is a matter of donor intent, then why couldn't the museum agree to waive this or that condition of the gift? I mean, if O'Keeffe were alive, and she had worked out a deal with Fisk like the one the museum, as her successor, worked out in the fall -- what sense would it make to say that deal was contrary to O'Keeffe's intent? She's the one making the deal. And if that's right, why should it be any different for the O'Keeffe Museum as her successor?

What am I missing?

Bio-art Sentence

The New York Times reports that University of Pittsburgh geneticist Dr. Robert Ferrell has been sentenced to a year of unsupervised release and fined $500 for providing artist Steve Kurtz with bacteria to use in a bio-art work. Kurtz is still facing trial on federal mail and wire-fraud charges.

For background on Kurtz, see here.

"As in all cases involving the theft of well-known artworks, the mystery is what the thieves intended to do with the paintings"

The New York Sun's Kate Taylor has more on this weekend's major art theft from a Zurich museum. The Art Loss Register's Chris Marinello tells her, "If they try to unload these, we will find them."

Ed Winkleman applies Occam's Razor: "Stealing artwork this famous strikes me as evidence of stupidity .... In this instance, I suspect the thieves saw an easy heist and didn't think much past that point. This deficiency will hopefully add to the swiftness with which they are caught."

No bids?

The New York Times reports that the Getty Images auction "appears to be in jeopardy." There apparently haven't been any offers "significantly above its current market value of $1.6 billion."

247WallSt.com's John Ogg says it's a business erosion story: "Getty Images has a business model that is at risk in a wiki world with low-cost of entry for start-ups. In fact, it has seen more competitors launch competing interests over the last 12 to 18 months than it can possibly fend off. ... The value of stock photos just isn't quite what it used to be. You just don't have to pay that much for digital stock photos anymore. Because of the long-standing contracts that Getty has with major sports and entertainment venues, there is still a value to this company. But that value is capped because no one needs to use their photos for news, travel, design, reference and more. Alternatives are readily available for one-tenth of the cost."

"Might have been the largest art theft in Europe"

From The New York Times:

"Armed robbers stole four important paintings by van Gogh, Monet, Degas and Cézanne from a museum in Zurich, the Swiss authorities announced Monday .... Three thieves, wearing dark clothes and ski masks, walked into the Emile Bührle Foundation, a private collection housed a couple of miles outside of Zurich’s city center ..., around 4:30 p.m. on Sunday, a short while before the museum was due to close. ... While one held a pistol and ordered visitors and staff members to lie on the floor in the main room of the museum, the two other men removed the four paintings from the wall: Monet’s 'Poppy Field at Vetheuil,' 'Ludovic Lepic and his Daughter' by Edgar Degas, Van Gogh’s 'Blooming Chestnut Branches,' and Cézanne’s 'Boy in the Red Waistcoat.' Their total worth is estimated at $163 million."

Why would someone steal such well-known works? Derek Fincham can think of four possibilities.

Lee Rosenbaum reminds us of a previous occasion when the Bührle Collection was in the news.

"This building is ... magical. It’s different. You can’t replicate it"

Today's New York Times has an update on the situation at 475 Kent Avenue: "The roughly 200 residents ... have not been able to move back in, leaving 200 lives, and scores of livelihoods, in limbo."

More Fisk Follies

You knew it would come to this: "Fisk University will not be able to sell a 50 percent share in its Alfred Stieglitz Collection of modern art to the Crystal Bridges Museum in Bentonville, Ark., says a Friday court filing. Davidson County Chancellor Ellen Hobbs Lyle's latest ruling in the university's protracted lawsuit would appear to be a decisive blow against Fisk, which has spent more than two years attempting to solve financial difficulties through the sale of its prized Stieglitz collection, donated to the school by painter Georgia O'Keeffe in 1949."

The next step is a trial beginning Feb. 19 to determine whether the entire collection should be turned over to the museum because Fisk has failed to comply with the conditions of O'Keeffe's donation.

So what's happened over the last few months is that Judge Lyle rejected a settlement between Fisk and the museum on the grounds that it was not in "the best interests of the people of the State of Tennessee" since there was a better offer available from Crystal Bridges -- but now she says Fisk isn't permitted to accept that better offer (leaving one to wonder in what sense it was ever "available" in the first place). And, to top it all off, there remains the possibility that the entire collection will be forfeited and end up in New Mexico.

Just bizarre.

I said nearly a year ago that supporters of the university, many of whom cheered the decision to reject the proposed settlement with the museum, "may come to regret the decision to leave twenty million on the table just because it wasn't forty," and that certainly seems more true than ever today: if the museum prevails at trial, Fisk will have gone from a situation where it would have had $20- or $30-million (or more) in cash and 99 of the 101 pieces in the Stieglitz Collection (not to mention the right to exhibit the signature work in the collection about 8% of the time) to a situation where it has . . . nothing.

More Stolen Picassos

The BBC reports:

"Two paintings by Pablo Picasso have been stolen from a Swiss exhibition. The artworks were stolen on Wednesday after closing time at the show of the artist's work in the small town of Pfaeffikon, near Zurich. The oil paintings - Head of Horse and Glass and Pitcher - were on loan from the Sprengel Museum in Germany."

Derek Fincham: "[T]hese works will never be sold on the open market, they are too widely known. I think a more interesting issue is security when these works are loaned out to regional museums like this one, which was the problem with works stolen in Nice last August. I think there are a lot of benefits to loaning works, and sharing collections; however there are trade-offs. Often these smaller regional museums have less-sophisticated security systems given their smaller budgets and collections."

Penn Portraits

An interesting bit of information from Randy Kennedy's story in today's New York Times about the Getty's acquisition of Irving Penn's entire "Small Trades" series, 252 portraits of blue-collar workers — "waiters, bakers, butchers, rag-and-bone men":

"Weston Naef, the Getty’s senior photography curator, said that the museum had been working to acquire the series for more than five years, but the sticking point had been copyright ownership of the images. In many cases, he said, Mr. Penn and Condé Nast ... share the copyrights to Mr. Penn’s images. And the Getty, which had long insisted that it be given copyright power over the trade series, along with the master set of the photographs, decided in the end to abandon the copyright demand."

The sale was negotiated by Pace/MacGill. No word on the price.

No Fisk Delay

Lee Rosenbaum reports that the court has rejected the Attorney General's request (discussed earlier here) to delay the Fisk trial to allow further development of a proposal for sharing its collection with the forthcoming Museum of African American Music, Art and Culture in Nashville. According to Lee, the judge ruled that "the court does not have the authority to force Fisk to do something with the gift, such as lease it to another institution." I'm glad to see things moving forward, but I find that reasoning a little hard to square with the approach the court took when considering whether to approve the deal Fisk wanted to make with the O'Keeffe Museum back in September. Then, the issue seemed simply to be whether a better offer existed or not (because, if it did, then accepting the proposed settlement was not in the best interests of the people of the State of Tennessee).

Bribery Charge

Bloomberg's Philip Boroff reports that "New York Attorney General Andrew Cuomo has accused the former superintendent of the state-owned Manhattan armory where the [Pulse contemporary-art] fair was held last year of extorting money from organizers and soliciting a bribe. In a 31-count indictment filed in New York State Supreme Court, James Jackson was accused of receiving more than $30,000 in cash and goods from Pulse, Marc Jacobs fashion shows and the New York International Carpet Show." The New York Times has a story too, focusing more on the Marc Jacobs angle (apparently 24 of the 31 counts in the indictment relate to Jacobs).

"He invokes the law of the street — finders keepers, losers weepers"

In the news today, a Warhol dollar-sign painting recovered almost a decade after it was stolen from a SoHo gallery. The New York Times story is here.

The story hints that, unlike the typical recovered work scenario (which pits an innocent third-party purchaser against the victim of the theft), here the current owner may not have the cleanest of hands: it notes "some odd coincidences" in the case, including that the current owner, "a man who has admittedly lived a hard-knock life," was "raised on Broome Street a few blocks from the gallery ... where the painting was stolen in 1998. Some public records show he lived there at that time, though Mr. Beltrez said he moved in 1989."

Chris Marinello, general counsel of the Art Loss Register, is quoted as saying a police investigation of the theft was continuing, but no criminal charges had yet been filed.

Salander Protocol

Bloomberg's Philip Boroff (who owns the Salander bankruptcy beat) reports that the gallery’s chief restructuting officer has proposed “a process to enable owners of the 4,000 artworks held at the New York gallery and its warehouses to retrieve their property. Under the so-called protocol, a gallery employee will advertise an inventory of the artworks and interested parties can submit an application to recover any pieces to a review committee.” A hearing on the plan is scheduled for Feb. 14.

As Boroff notes, it's unclear how much would actually be resolved by such a procedure:

"Proceedings may be contentious, lawyers said, with First Republic [which is owed tens of millions of dollars by the gallery and by Salander individually] casting a long shadow. Its loans are secured by a lien [against] all 'property of every kind and nature' of the gallery, according to a Jan. 3 court filing."

Remington Trademark Lawsuit

Forbes reports on a trademark dispute involving the Frederic Remington Art Museum. Apparently an entity called the Frederic Remington Trust 1861 LCC "acquired a federal trademark in 1995 for the use of the name Frederic Remington on a variety of products, including eyeglasses, carbonated apple cider, umbrellas, cologne, clothing and cigarette cases." And in 2006 the company obtained a trademark for the Remington name for bronze sculptures. The museum says the company then "threatened legal action against the museum in an attempt to get it to stop offering what [it] claimed were unauthorized reproductions of Remington's work. Instead, the museum initiated legal action."

Randolph Update

Christa Desrets has the latest on the Randolph College deaccessioning lawsuit in the Lynchburg News & Advance. At a hearing Tuesday the court "agreed to narrowing the scope of the case [to just the four paintings at issue], and said the trial could be delayed for up to six weeks from its original starting date on April 29." Desrets describes this as meeting the parties' "requests in the middle," but it sounds like it may have been a significant victory for the college to me. Remember, an important part of the plaintiffs' strategy has been to link the four paintings in the current suit (which are not subject to any explicit restrictions on sale) to the rest of the collection, much of which is (at least arguably) restricted. Severing that link (if that is in fact the consequence of Tuesday's ruling) would seem to be a serious blow to the plaintiffs' case.

"His articulated artistic justifications for his juxtapositions make the transformative and critical nature of his copying evident"

Rebecca Tushnet writes about the work of painter Russell Connor.

Is a photograph of a sculpture a "derivative work"?

Bill Patry says no:

"Photographs of other objects are not derivative works of those objects. First, a photograph of an object is not 'based on' that object: It is a mere depiction of it. Second, even if one were to find that a photograph of an object is based on that 'preexisting work' within the meaning of the definition of 'derivative work' in Section 101, such a photograph must still 'recast, transform, or adapt' the authorship in the preexisting work to be considered a derivative work. Such recasting, transformation, or adaptation does not occur in a photograph of an object."

Trafficking in tax deductions?

An article in today's New York Times suggests that the Southern California antiquities scandal may really be about the sale of tax deductions:

"Applications for the warrants said under the scheme, that smugglers and art dealers were selling prehistoric artifacts to Americans, who were provided with inflated appraisals. Then the art dealers arranged for the items to be donated to the museums, so the donors could take a tax deduction. ... According to the warrants, many of the artifacts were sold to the donors for around $1,500 each and then appraised at prices just shy of $5,000. (Above that amount the paperwork requirements on a tax return grow stiffer.) For a taxpayer in the maximum tax bracket, the savings would be only about $700 a piece."

$700 seems a tad low, but in the right ballpark. The mention of "stiffer paperwork requirements" is a reference to the fact that it's at $5,000 that the need for a "qualified appraisal" kicks in. See IRS Form 8283.

Fisk Follies

Lee Rosenbaum has been following the latest developments in the Fisk-O'Keeffe saga. Apparently the Tennessee Attorney General has asked for a delay in the proceedings in order to allow time for further exploration of a new plan to keep the university's Stieglitz Collection in Nashville through some sort of partnership with the (not yet existing) Museum of African American Music, Art and Culture.

It's another weird twist in a weird case, and I think to a large extent it's an inevitable consequence of the Chancery Court's decision to frame the analysis as what's in the best intersts of the people of the State of Tennessee, and then tackle that question in a serial way. So the proposed deal between Fisk and the O'Keeffe Museum was rejected because the Crystal Bridges Museum had put a better offer on the table (though, as I've argued, it's not so clear that it is in fact better). And now the Crystal Bridges deal might be rejected because another "better" offer has come along, even if it's on behalf of a museum that doesn't yet exist. What if yet another offer emerges while approval of this latest offer is pending? And who gets to decide which of these in many ways incommensurable offers is the "best"? The Court? Or the Attorney General, as the representative of the people of the State of Tennessee? If the latter, why not remove the process from the courts entirely and let the Attorney General just solicit all bids by a certain date and then make a decision (after all, who cares what Fisk thinks, right?). Don't forget, too, that the O'Keeffe Museum still has a counterclaim that the entire Collection should revert to it as a result of Fisk's violation of the terms of the original bequest. Wouldn't a more rational procedure have been for the Court to decide that counterclaim first and then, if it was denied, either let Fisk exercise its discretion to decide which transaction to pursue (my preferred outcome) or, if a best-interests-of-the-people standard were deemed preferable, charge the Attorney General with coming up with a process to ensure that the standard is met to his satisfaction? Or would that make too much sense?