"I plan to secure pledges from fifty living American artists for one important work from their own collections that they would donate to a museum"

That's ADAA president Roland Augustine's plan for convincing Congress to (finally) enact legislation permitting artists to get an income tax deduction when they donate their (own) artwork to museums. Daniel Grant has the story here. I'm not sure how effective the plan will be: no one doubts that changing the law would result in increased donations from artists. Whatever's been holding things back, it isn't a fear that Congress will go to the trouble of changing the law and then artists will pull a fast one and refuse to donate their works.

eBay and Fakes

Time magazine reports that a Paris court has ordered eBay "to pay $63 million in damages to units of the Paris-based luxury goods mammoth LVMH, after agreeing that the site had facilitated the sale of counterfeit versions of its high-end products, particularly Louis Vuitton luggage." Last month "another Paris court ruled that eBay must pay $30,000 to luxury house Hermès after knock-offs of its chic bags had been sold on the site."

Tyler Cowen asks: "how is eBay to detect possible fakes? Buy and inspect the wares? Shut down trade in any fakeable item?"

"What if all of this effort, time, and money spent over the past three years scaring visual artists into legislative action . . .

. . . was instead spent solving the key problems that the constituency is complaining about?" Public Knowledge's Alex Curtis on the orphan works legislation.

Arrest in Monet Theft

Bloomberg's Philip Boroff reports that "a Frenchman living in Florida was charged with attempting to sell a Clause Monet painting and three other artworks stolen at gunpoint last year from the Museum of Fine Arts in Nice, France."

Explosive Theory

From The Art Newspaper:

"A former curator from the State Russian Museum in St Petersburg ... has developed a new method for dating paintings in collaboration with Russian scientists which, she says, provides 'indisputable' evidence of whether a painting was made before or after 1945. According to the inventors, the new patented technology is based on the idea that man-made nuclear explosions in the 1940s and 1950s released isotopes into the environment that do not occur naturally. The tiniest traces of these isotopes, Caesium-137 and Strontium-90, permeated the planet’s soil and plant life, and eventually ended up in all works of art made in the post-war era because natural oils are used as binding agents for paints. Therefore, they believe that any work of art originally believed to pre-date World War II, but which registers trace amounts of Caesium-137 and Strontium-90, can be 'definitively' declared a post-1945 forgery."

"To paraphrase the eminent metaphysician L.P. Berra, an event has not concluded until all activity associated with that event has ceased."

One thing that remains unchanged after a week away at the beach: the Friends of the Barnes are still battling. Philadelphia Inquirer art critic Edward Sozanski sums up the state of play: "all that the Friends have left in what I expect will be a continuing guerrilla campaign is the moral argument."

Lee Rosenbaum cheers him on, and says: "I admire [the Friends'] fighting spirit. But I think they're going to be flattened by that steamroller."

Breaking

Off to the beach. Back next week.

"We recognized very well that the issue of standing, narrow as they were, did not favor us at all"

The Philadelphia Inquirer has a post-mortem on the latest round of litigation over the Barnes Foundation's move.

More on the new antiquities guidelines

Illicit cultural property go-to guy Derek Fincham weighs in on the new AAMD ethics guidelines for collecting antiquities: "Continued scrutiny of the antiquities trade is needed, despite these new ethical guidelines. I'm not sure much has really changed."

"In cases of armed robbery we can't run the risk of resisting, because there could be unforeseeable consequences for the employees and for the public"

Derek Fincham has more on last week's Picasso theft in Brazil. He notes the "inherent tension between keeping galleries an open space for the public versus protecting against armed robbery. Such robberies seem to be taking place with regularity in Sao Paulo though, which may make displaying art to the public more difficult there."

"Art in a Time of Terror"

Amy Goodman interviews artist Steve Kurtz. For some background on the Kurtz story, start here.

Not Appealing

It's official: the Barnes case is over. Lee Rosenbaum reports that today was the deadline for filing a notice of appeal from Judge Ott's latest ruling, and both Montgomery County and the Friends of the Barnes have decided not to pursue the case any further.

Larry Lessig has signed his first online petition in many years (UPDATED)

Against the proposed Orphan Works Act. The petition is here if you want to join him.

UPDATE: I think it's safe to say Heather Hope will not be signing the petition: "I do not know all the ins-and-outs of the legislation, and maybe what is being proposed is not ideal. But maybe, instead of complaining that artists do not want any type of legislation, what needs to be done is compromise on how to solve the ever-growing problem of OWs, which prevent works from being published, performed, used, and exhibited."

Klimt Case

Josh Baer:

"Maggie Wachter has sued Paul Quatrochi alleging he reneged over the $1.2 million purchase of a Klimt drawing and she has also sued Day & Meyer alleging they will not return the artwork to her."

Another Picasso Theft

"Heavily armed robbers have stolen two engravings by Pablo Picasso from an art museum in downtown Sao Paulo."

Salander Update

Sunday is the deadline for submitting art claims in the Salander-O'Reilly bankruptcy. Bloomberg's Philip Boroff has the details.

"Lawyers for the men have said they did not realize the painting was famous when they took it"

The two guys who stole a Goya painting while it was on its way to the Guggenheim from the Toledo Museum of Art in 2006 were sentenced to federal prison yesterday. The ringleader (who also "had an extensive criminal record") got five years; his accomplice got a year and a day.

"Obviously, they overpaid"

Bloomberg.com reports:

"An auction of European and American furniture and garden decorations from bankrupt Salander-O'Reilly Galleries LLC brought in $1.6 million, as collectors, dealers and interior designers scooped up items for a fraction of what Lawrence Salander paid for them in 2004."

Served

A Harvard Law student has come up with a novel way of "bring[ing] out the flesh-and-blood ... life behind" the law. Via Tom Smith, who applauds the effort.

On Not Getting It (UPDATED)

Carolyn Wright says supporters of the orphan rights legislation like me (I didn't know I was one!) "don't get it" when we point out that registration with the new electronic databases the legislation contemplates would not be required. While she concedes that the proposed legislation "does not make registration with the private registries mandatory," she nevertheless argues that "registration will be required if photographers want the same protection for their works as they have now" and that "the OW Act takes away the statutory damages option unless the photographer registers the work with the private registry/registries."

I think she's just wrong about that. Imagine a work whose author can easily be found with any reasonably diligent search. Now imagine, too, that the author neglects to register the work with the private registries. Under those circumstances, the proposed legislation would not "take away the statutory damages option" because the orphan works provisions only come into play at all where an author cannot be found with a diligent search, which, by assumption, is not the case in our example. An author who can be found with a diligent search doesn't have to do a thing to retain precisely "the same protection for their works as they have now." So it is simply not the case that "the OW Act takes away the statutory damages option unless the photographer registers" with the private database(s).

If the response is, "yes, that may be so, but the problem is with your assumption: in the real world, many, perhaps most, authors will not be so easily found," that doesn't change the equation. If you took the private database provisions out of the proposed legislation, the hard-to-find author would be no better off: all the database does is help him defeat an argument that he couldn't be found with a diligent search. Take the database provisions off the table, and the proposed legislation is even worse for authors.

One other odd feature of Carolyn's argument. Her complaint is that the proposed law "takes away the statutory damages option unless the photographer registers the work" (with the private registry/registries) -- but, of course, to possess the statutory damages option in the first place one of the things a photographer must do is register the work (with the Copyright Office). Leonard D. DuBoff and Christy O. King, authors of Art Law in a Nutshell, make exactly this point:

"It is clear from the pending orphan works legislation that there is no coercion to have copyright owners register their copyrights in and to their works with the Copyright Office since that already exists in the current copyright statute. Under current law, a copyright owner cannot maintain a lawsuit for copyright infringement without first registering the work, and if the copyright is not registered with the Copyright Office before an infringement occurs, the copyright owner of the work being infringed may recover only actual damages and obtain an injunction. In addition, the copyright owner is not entitled to recover statutory damages or attorney fees. ... Thus, the benefits to be derived from early registration with the Copyright Office are already law and not a new attempt by Congress to coerce copyright owners into registering their works."

This is not meant as a defense of the orphan works legislation generally. There are reasonable grounds for opposing the legislation, and I've discussed some of them here before. But it seems pretty clear to me that the creation of a new private registry that would make it easier to find authors who want to be found is simply not one of them.

UPDATE: Carolyn responds: "Mr. Zaretsky is correct: '. . . all the [private] database does is help [the photographer] defeat an argument that he couldn't be found with a diligent search. Take the database provisions off the table, and the proposed legislation is even worse for authors.' No doubt. If we are forced to have OW, we need some way - perhaps with the private databases - to ensure that infringers can't use a work they claim to be orphaned when the owner still has rights. But copyright law as it exists today - without Orphan Works at all - is much better than any of these proposed options."

Art Law, Briefly

Lots of art law in the news the last few days:

• If the guards at LACMA tell you you're too close to an artwork, you'd better step back. Christopher Knight says "it's hard to imagine almost any scenario in which an art museum guard might shoot someone, but that bizarre thought keeps bumping around in your brain at BCAM. Needless to say, it has a less than salutary effect on the art experience." Richard Lacayo is surprised by the news: "I would think that the potential for screw ups would discourage the whole idea." More thoughts from Sergio Muñoz Sarmiento here.
• In other museum-guard-related news, a guard at the Carnegie Museum of Art has been charged with vandalizing a million-dollar painting by Vija Celmins, apparently because he didn't like it. Let's make sure that guy never gets near a gun. The painting was on loan from the Art Institute of Chicago.
• New guidelines for collecting antiquities from the Association of Art Museum Directors. Randy Kennedy reports.
• An arrest in a violent art theft in the U.K. last May.
• Police recovered several paintings that were stolen by masked gunmen from a French museum last August.
• The Virginia Supreme Court affirmed the dismissal of a challenge to Randolph College's decision to go co-ed. I never really understood how this issue was supposed to be connected to the Maier Museum deaccessioning controversy, but, in any event, this last obstacle to further sales has now been removed (much to Lee Rosenbaum's dismay). The first of four paintings on the block was sold last week for $7.2 million. A college spokeswoman told the Washington Post it "plans to sell the three remaining paintings, but could not provide a timetable."

Misconceptions

Rashmi Rangnath, a Staff Attorney at Public Knowledge, addresses one of the "misconceptions" about the orphan work reform proposals:

"Let me be clear. The orphan works bills would not require owners to take any steps not already required by copyright law to be eligible for copyright protection. The bills would merely provide a way, with visual registries, to help owners identify themselves as creators of their works. Owners are free to use these services or not."

"There's nothing in any post-9/11 law that restricts your right to photograph"

Glenn Reynolds on the increase in harassment of people taking pictures.

More on the "Assassination" Piece (UPDATED)

Constitutional scholar Eugene Volokh:

"I appreciate that the Secret Service have an important and difficult job to do, but based on this account -- and I realize that it may be in error or incomplete -- it seems to me they went beyond what is allowed. It makes sense that they would have talked to Arboleda, and tried to figure out what he was doing in the storefront. They could well have decided to watch him for the duration of the exhibition and after. But I don't see that there was probable cause to believe he had committed a crime, which was what it would take to do more than briefly stop him and talk to him .... Nor would there be probable cause to detain him if he had told them that he just wanted to go on setting up his exhibition, and didn't want to talk further to them .... Using the words 'the assassination of Hillary Clinton' isn't a crime. Making threats is a crime, but I see no way how there could be probable cause to see the writing as an actual threat .... Now perhaps the removal and two-hour interview of Arboleda was consensual, in which case no probable cause was required. But from the newspaper report that doesn't seem especially likely. Note that 'Special Agent Eric P. Zahren, a spokesman for the Secret Service in Washington, emphasized in a telephone interview that the agency did not seek to shut down the show. "We did not shut down that exhibit or request that anybody else shut it down," Agent Zahren said. "This was brought to our attention, we went out there and had a conversation with the individual, but we did not shut it down."'"

UPDATE: California prosecutor Patterico cautions that the reporting on this hasn't been as precise as it could be. It's not clear that the exhibition was actually "shut down." It's also not clear the artist was "arrested" or "taken into custody." Still, he agrees with Volokh on the First Amendment question: "You can’t shut down expressions of speech because you think they’re 'inappropriate.' If — I say if — the exhibition was shut down by authorities, they might want to consider whether there were any violations of law on their own part."

Astor Update

Brooke Astor's son has moved to dismiss the criminal case against him. It seems the thrust of his defense is going to be that the prosecution "cherry-picks" through a "clear pattern of well-informed generosity toward her only child" to allege that "other money and items that were transferred to Mr. Marshall at around the same time were obtained by fraud or theft." According to the New York Times:

"The filing, for instance, cites a charge of grand larceny in the 18-count indictment that refers to a $2 million commission Mr. Marshall collected from his mother for selling a Childe Hassam painting of hers. Prosecutors have said that Mr. Marshall made misrepresentations to Mrs. Astor that her finances were dwindling and consequently induced her to sell the work of art, enabling him to collect his large fee. But the [filing] also cites a conversation that a witness heard in which Mrs. Astor responded to Mr. Marshall, telling him to take $1 million and to give another $1 million to his wife."

Background here.

Today in Performance Art Legal News (UPDATE)

Ann Althouse has the rundown:

First:

Performance artist Yazmany Arboleda set up a show called "The Assassination of Hillary Clinton/The Assassination of Barack Obama" in a storefront across the street from the New York Times offices in Midtown. He says: "It’s art. It’s not supposed to be harmful. It’s about character assassination — about how Obama and Hillary have been portrayed by the media. ... It’s about the media." The police and Secret Service promptly shut it down. The Times's Sewell Chan has the story here.

Second:

Steven Kurtz, "cleared of fraud charges after a four-year battle with the government," is planning a new exhibition "based on works and items removed from his home by law enforcement agents." The show opens Saturday and will "not only display Kurtz's art, but trash left at his home by investigators who converged there amid worries the bacteria represented a bioterror threat." Story here.

UPDATE: On the first story, it turns out it may not be accurate to say the exhibition was "shut down." See here.

Anne d’Harnoncourt

William Grimes's New York Times obituary for the Philadelphia Museum of Art's Anne d’Harnoncourt closes with a mention of her crucial role in the Gross Clinic saga:

"One of her recent achievements was a matter of local pride. In the fall of 2006, Thomas Jefferson University, a Philadelphia medical school, said that it would sell 'The Gross Clinic,' an 1875 masterpiece by the Philadelphia artist Thomas Eakins, to the National Gallery of Art in Washington and the Crystal Bridges Museum of American Art in Arkansas. To prevent the sale, the Philadelphia Museum of Art and the Pennsylvania Academy of the Fine Arts had 45 days to match the selling price of $68 million. Ms. d’Harnoncourt went into high gear, saying, 'It’s a painting that really belongs in Philadelphia — his presence still resonates here.' In the end she prevailed, in part by selling an Eakins painting and two oil sketches to the Denver Art Museum and the Anschutz Collection, also in Denver. (The Fine Arts academy had also sold an Eakins painting from its collection.) 'We’re heaving a deep sigh,' Ms. d’Harnoncourt said when the Eakins deal was concluded. 'This is it. Now we can celebrate.'"

"Even in Canada . . ."

". . . art theft is more prevalent than most people imagine."

Salander Rugs

Bloomberg's Philip Boroff reports on Tepper Galleries' auction Friday of "nearly 300 antique and 'semi-antique' carpets" from the bankrupt Salander-O'Reilly. No reserves, minimum bids of just $10. The sale raised about $250,000 in total.