Monday, March 31, 2008

Marilyn Monroe News

The Wall Street Journal Law Blog has the latest in the Marilyn Monroe right of publicity saga: "District Judge Margaret Morrow in Los Angeles sided with the families of photographers, ruling that Monroe was a New Yorker, meaning she has no right of publicity (whereas in California, right of publicity survives a celebrity’s death)."

Background here, here, and here.

Sunday, March 30, 2008

"Seems like it might be more efficient to set prices through a virtual prediction-type market for works displayed on the web"

Lawprof Larry Ribstein spends some time in Chelsea, then posts on "the art world's approach to retail."

Thursday, March 27, 2008

"I'm an artist and do not enjoy the litigation process, but if someone is wrongfully taking from my creations, I must defend my art."

The New York Post reports that pop star Pink has settled the copyright infringement lawsuit brought against her by artist Vladimir Kush, discussed last summer here.

Wednesday, March 26, 2008

Esmerian Sale reports: "The folk art collector Ralph Esmerian will not donate his version of Edward Hicks’s painting The Peaceable Kingdom with the Leopard of Serenity (1848) to the American Folk Art Museum as intended, but will instead sell it at Sotheby’s in a May sale of American paintings, Bloomberg reports. The painting has been on loan to the museum since 2000. Recent reports have claimed that Esmerian, a jewelry dealer, is going through financial difficulties. A lawsuit filed in New York Supreme Court states that he owes Merrill Lynch Mortgage Capital about $185.3 million."

Esmerian tells Bloomberg he got caught up in the sub-prime crisis: "Suddenly in the last year, we've had pressures from the marketplace to clear up a few debts.''

For background, see here.

"The issue is fantastic"

Lawyer Brad Parker on the Rauschenberg-trash lawsuit:

"I'd love to try this case - the issue is fantastic. If Rauschenberg throws away his work product, does the law of abandoned property apply? Does the artist retain the right to declare what work is authentic? Does the artist still own his artistic materials - even if he discards them as unusable or undesirable? And how do those questions apply to long deceased artists? For example, can an auction house sell a Rodin sketch as an authentic Rodin if it was merely discarded work product that he used to create a completed piece of art?"

Tuesday, March 25, 2008


Rebecca Tushnet writes about artist Adam Connelly, who, as she puts it, "paints pictures of pornographic images, pixellated so that it's our minds, not the paint, providing the salacious details." Does he have a good fair use defense to his use of the underlying images? "It's pretty clear that he would, given the change in meaning and the change in quality of reproduction."

"He could be upwards of $100 million in debt"

Another lengthy story on the collapse of Salander-O’Reilly Galleries, this time from New York magazine. (Here is another recent one, from Portfolio magazine.)

Gardner Heist Central

The Boston Herald has launched a special website dedicated to the Gardner Museum heist.

"The case is groundbreaking because there is no real precedent on these facts under the Visual Artists Rights Act"

The Southwest Florida News-Press has more on the Florida lawsuit involving work taken from Robert Rauschenberg's trash and then sold (mentioned earlier here and here).

Barnes Argument

There was a hearing yesterday in the petitions to reopen the Barnes Foundation case. Randy Kennedy had a brief report in today's New York Times. The Philadelphia Inquirer is here. The AP is here.

According to the Inquirer, "Ott asked no questions during oral arguments yesterday, saying only that a decision would be issued 'as expeditiously' as possible."

Lee Rosenbaum "very reluctantly find[s] the foundation's 'too little, too late' argument against reopening the case to be legally (but not ethically) persuasive." Tyler Green sees "cause for mild optimism." I had some thoughts on the Friends of the Barnes's recent papers here.

Friday, March 21, 2008

"Proceed with caution and seek guidance"

Some art-buying advice from U.S. Attorney Patrick Fitzgerald (yes, that Patrick Fitzgerald), who this week announced a number of indictments for "two art-fraud schemes that reaped a combined $5 million." Bloomberg has the story here. Fitzgerald says "literally thousands of people in different countries and on different continents may come to learn that when they thought they bought an original work signed by Picasso or Dalí or Chagall, they in fact bought a fake." Some of the prints at issue were sold on eBay, and others were sold through two art dealers in Northbrook, Illinois.

More on Photographs as Derivative Works

I've mentioned a recent District Court decision that had copyright lawyers scratching their heads: the case had held that photographs of artworks are derivative works of those artworks. Now Bill Patry notes another District Court decision that comes out the other way. As he summarizes it, "a photographer took pictures of a motorcycle on which there was art work and then sued for infringement of them. Among the various defenses asserted by defendant was one that plaintiff’s photograph was an unauthorized derivative work of the artwork on the motorcycle and as such not protectible." The court rejected the argument, noting that the photographer had not "recast, transformed, or adapted" the underlying work.

Patry's reaction: "Praise the Lord."

Wednesday, March 19, 2008

$131 million

Carol Vogel reports that it is a condition of Leonard Lauder's $131 million gift to the Whitney that "the museum not ... sell its Marcel Breuer building on Madison Avenue at 75th Street for an extended period, although he declined to specify how long."

Greg Allen asks: "Is a deal not to sell the building 'for an extended period' substantively different from a plan to sell the building after 'an extended period'?"

Tuesday, March 18, 2008

Barnes Update

The Philadelphia Inquirer's City Hall blog reports that "Philadelphia's lease with the Barnes Foundation calls for the transfer by May of the site currently occupied by the city's juvenile detention facility ... on the Ben Franklin Parkway. But city officials said Monday that the property won't be vacated until late summer." A spokesman for the mayor says "the delay is not likely to inspire the Barnes Foundation to break its 99-year lease -- which it would have the option of doing -- because the new $100 million museum is still in the design phase and not ready for construction."

Dr. No Strikes Again

From the New York Times: "Some 30 paintings by such masters as Monet, Cézanne and Corot and a Rodin sculpture were stolen from the home of an antiques dealer near Paris, police officials said. Five masked gunmen broke into the home in Le Pecq, west of Paris, in the early hours, subdued the dealer and fled with the art, the officials said. A judicial source said that if the artworks’ authenticity was confirmed, their value would be priceless." (I don't see why the value would be "priceless," but I suppose I get the point.)

Monday, March 17, 2008

"If the allegations are true, the collapse of Salander-O’Reilly would be among the most massive art frauds in history"

In the April issue of Portfolio magazine, Suzanna Andrews has a lengthy piece on the unraveling of Salander-O'Reilly gallery.

Kristen (UPDATED)

An interesting intellectual property angle has emerged in connection with the Governor Spitzer story -- the use by news organizations of photos of Ashley Dupre (aka"Kristen") without permission. See story here. As an initial matter, Rebecca Tushnet points out that, since presumably she didn't take the pictures of herself, Dupre may not own the copyright in them, unless "by transfer" from whoever did take them. Putting aside the ownership issues, Bill Patry believes the use of the photos "has an obvious claim to fair use" under Nuñez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000). Tushnet, however, thinks the news organizations here "might have a harder fair use case than in Nuñez": "In Núñez, whether the subject of the photos ought to have posed for them was the focus of the news story; Dupre's photos are not the newsworthy event themselves, but rather are used to show people what Spitzer was buying." Nonetheless, she agrees "their relation to newsworthy events, and the generally limited market for MySpace photos, might well justify a fair use finding."

Tushnet also adds that "Dupre's potential publicity rights, which [her] lawyer's quotes seem to focus on, are stronger in some ways, but much weaker in others. Specifically, news reporting use of her identity will not violate her publicity rights no matter how much her cleavage is used to sell papers."

More here from Photo District News Online.

UPDATE: Sergio Muñoz Sarmiento agrees the fair use case is strong, but, just in case he runs into any trouble for publishing one of the photos, has identified just the right counsel to represent him.

And Kunal Bhatheja has more on the publicity rights angle: "As long as a picture is in the context of something 'newsworthy' it withstands a claim under [the New York publicity rights statute] – even if it is placed or used in a manner designed to sell the publication."

18 years, 18 years

Derek Fincham notes that today is the 18th anniversary of the Gardner Museum heist. (Geoff Edgers mentioned it last week as well.)

Thursday, March 13, 2008

Remington Update

The company "accused of usurping the name of the Frederic Remington Art Museum's Foundation" has failed to respond to the museum's District Court complaint (mentioned here), and next faces a default motion. Story here.

More on the Rauschenberg Suit

The Legal Satyricon has some thoughts (including a link to the complaint) on Robert Rauschenberg's suit (mentioned earlier here) over work someone pulled out of his trash.

Wednesday, March 12, 2008

Strindberg Recovered

A painting by playwright August Strindberg, stolen two years ago from the Strindberg Museum, has been recovered by Swedish police during a drug raid in a Stockholm suburb.

Monday, March 10, 2008

Interest-ing (UPDATED)

Lee Rosenbaum seems mildly surprised that the Georgia O'Keeffe Museum has announced that it will not be appealing Judge Lyle's decision last week which left, at least for the time being, the Stieglitz Collection with Fisk University, but, as the chairman of the museum told Diverse magazine: "You don’t appeal when you have won. ... Our goal was to establish that Fisk was legally bound to follow the conditions (of the gift). And that has been done. As far as we are concerned, it’s a complete victory."

Meanwhile, Tennessean columnist Dwight Lewis is pleased with the Judge's focus on "the public interest." I'm still puzzled by this whole approach. I'm as in favor of the public interest as the next guy, but isn't it also in the public interest that Fisk be able to field NCAA athletic programs? Isn't it in the public interest to improve the chances of Fisk's very survival as an institution? And how exactly are we supposed to measure the effect of various states of affairs on the public interest? If Fisk keeps the entire Stieglitz Collection, but has to cancel its NCAA sports program and make who knows what other sacrifices as a result of its precarious financial condition -- what is that, like a "72" on the public interest scale? But if Fisk gets to keep 99 out of the 101 works in the collection (plus the right to exhibit one of the other two for four months every four years) but also ends up with $25 or 30 million to solve lots of its other problems -- is that a "70"? Or, what if it gets to share ownership of the collection with a new museum in, say, Arkansas, so that it winds up with $30 million in the bank and anyone who wants to see the works just has to time his visit for the right part of the year? What public-interest score does that get? In short, the "public interest" game gets pretty slippery pretty fast. It's easy to wave your magic wand and say "public interest" -- in an ideal world of course it would be best for Fisk to keep all of the works (at least for the people of the state of Tennessee; perhaps not so much for the people in Arkansas) -- but the question is always compared to what? It's not at all obvious to me that the current state of affairs is, on the whole, better than some of the alternatives that emerged during the course of the litigation.

UPDATE: Related thoughts on "the public interest" here.

Mistakes were made

Newsday reports on an interesting lawsuit by a collector of African-American art who claims he was "duped into selling a cache of previously unknown Diane Arbus photographs" for a total of $3,500. The buyer's lawyer calls the suit "frivolous," but if the plaintiff can show that the buyer did in fact know the works were by Arbus, he would seem to have a pretty good claim of "unilateral mistake."

Campus Controversies

At Inside Higher Ed, Scott Jaschik looks at "several recent incidents involving controversial art in the higher education setting," with particular attention given to Iraqi-born artist Wafaa Bilal, whose video work Virtual Jihadi "was shut down Thursday by officials of Rensselaer Polytechnic Institute ... after it had been open less than a day."

"I'll move on. I have many other murals"

The San Mateo County Times reports on the settlement, "in the low four figures," of a threatened VARA claim by a local artist whose mural will now be painted over "to make room for a burger restaurant's logo and signs."

Saturday, March 08, 2008


I've mentioned on several occasions over the last few weeks that things were starting to go Randolph College's way in the lawsuit seeking to block it from selling four paintings. First, the court agreed to narrow the scope of the case to just the four paintings at issue, which seemed to be free and clear of any O'Keeffe-like restrictions on sale. Next, the temporary injunction blocking the sale was lifted when the plaintiffs couldn't raise the second half of the required million dollar bond. Then, two weeks ago, seven of the 19 plaintiffs in the case withdrew. Now, Christa Desrets tells us in today's Lynchburg News & Advance that the case has been dropped in its entirety. The school's decision last November to drop the portion of the case having to do with works bought from the Louise Jordan Trust (which arguably do come with O'Keeffe-like restrictions) turned out to be pretty shrewd.

There's a statement here from the group opposing the sale.

UPDATE: More here from Lee Rosenbaum.

UPDATE 2: Still more from Richard Lacayo.

Friday, March 07, 2008

"Butt artist" settlement

From the AP: "A Virginia man fired from his job as a high school art teacher after a video of his work as a so-called 'butt-printing artist' surfaced on the Internet has reached a $65,000 settlement with his former employer. The agreement comes more than a year after Stephen Murmer was fired by the Chesterfield County School Board from his job at Monacan High School for his private artwork, much of which includes smearing his posterior and genitals with paint and pressing them against canvas."

For background, see here. The case was set for trial next week.

Thursday, March 06, 2008

Fisk "Wins" (UPDATED 2X)

Davidson County Chancellor Ellen Hobbs Lyle has ruled that Fisk University does not have to forfeit the Stieglitz Collection -- at least for the moment. She's given the school until Oct. 6 "to renovate its Carl Van Vechten Gallery and return the collection to public display, or Fisk could risk losing the entire collection." Jonathan Marx has the story in the Nashville Tennessean.

I still don't know why it took more than two years (and who knows how much in legal fees) to get here. Lee Rosenbaum is thrilled. Fisk's NCAA athletic programs were not available for comment.

UPDATE: Richard Lacayo says the decision is a good one: "When the school gets back on its feet, it can restore its sports program. If the art were sold, it would be gone for good .... With a $1 million grant from the Andrew W. Mellon Foundation, and the pledge of $2 million more if the school can raise $4 million by June 30, Fisk may be on the way to recovery. And when it gets there, it will still have a collection that should never have been put in play in the first place."

UPDATE 2: More from Diverse magazine, which calls the ruling "a tough blow to the O’Keeffe Museum, [which] has spent hundreds of thousands of dollars over the past two years" on the lawsuit, and "a win and loss for Fisk. It too has spent hundreds of thousands of dollars trying unsuccessfully to have the court declare Fisk has sole control over the collection so it, Fisk, could sell parts or all of the collection to raise badly needed funds for the school."

Coulda shoulda woulda

The Friends of the Barnes filed their response to the Barnes's preliminary objections last week, and I've had a chance to take a quick look at the papers. The basic argument seems to be that "two significant developments have occurred" since the court's 2004 ruling approving the move -- those developments being the $50 million sale-leaseback offer from Montgomery County and the zoning change that would allow more visitors to come. The problem is it's a little hard to see those as "new facts," rather than things that could have been in place at the time of the initial ruling but, for whatever reasons, weren't. As Harvard law professor Bruce Mann has said, "There's no part of the judicial system that permits do-overs years after an issue has been adjudicated just because someone steps up and says, 'Hey, I have an idea.'"

I'm also not convinced they've solved their standing problem.

The papers do address the mystery of why the "secret" inclusion of $100 million in the 2002 state budget to support the move is supposed to help the Friends' case. (I discussed this issue in the second update to this post.) The idea is supposed to be that "had the existence of this legislation" been brought to the court's attention prior to the 2004 ruling, it "could have ascertained whether" the commitment "was capable of being translated into any level of financial support" for the Barnes in its original location.

The Barnes has 30 days to respond.

Wednesday, March 05, 2008

"We are sad to lose this iconic work"

Antiques and the Arts Online and the Maine Antique Digest have more on folk art collector and American Folk Art Museum trustee emeritus Ralph Esmerian's loan troubles, which apparently include, among other things, the loss by the museum of Edward Hicks's famous painting The Peaceable Kingdom.

"To have to go through this process at this stage of their career is too bad"

The Los Angeles Times reports that the Los Angeles Music Center is suing Claes Oldenburg and Coosje Van Bruggen for more than $6 million in Los Angeles County Superior Court. According to the Times, the Music Center entered into a contract with the artists in May 2003 to deliver a sculpture entitled "Collar and Bow." The contract price was $2.2 million, and the deadline for completion was Aug. 2004. When "technical difficulties arose," the Music Center granted a two-year extension and authorized spending an additional $1.6 million, but the work remains unfinished. The lawsuit was filed in Feb. 2007, and with mediation and settlement negotiations having failed, a jury trial has been scheduled for October of this year. "The suit accuses Oldenburg and Van Bruggen of negligence, breach of contract and unjust enrichment and adds an allegation of fraud against Carlson & Co., the San Fernando art fabrication company .... Other defendants are Englekirk & Sabol, Los Angeles consulting structural engineers, and Santa Ana-based Westerly Marine, a custom boat builder that, according to its website, was hired to help produce" the work.

Adding an especially sad element to the case, "the Times of London reported in September that cancer that Van Bruggen had battled for six years had spread to her bones."

Point of agreement (UPDATED)

Allen Strouse at "Senators Clinton and Obama both support Senator Patrick Leahy’s (D-Vt.) 'Artist-Museum Partnership Act,' which would allow artists to make tax deductions of the fair market value of works they donate to charity—though the bill has died for the seventh time in committee."

UPDATE: More here from The Artist's Magazine blog.


Sergio Muñoz Sarmiento on "the connection between law and visual culture" in the work of artist Carey Young.

Tuesday, March 04, 2008


Bloomberg reports on the theft in Chicago of a $70,000 stainless steel sculpture, probably for its $300 scrap value. Would not be the first time.

Back on View

From The New York Times: "Stolen and damaged in an armed daylight robbery in 2004, the restored Edward Munch masterworks 'The Scream' and 'Madonna' will be returned to public view at the Munch Museum in Oslo in May .... Security at the museum has been tightened since the crime. Three men were convicted, but Bjoern Hoen, regarded as the mastermind, is to be retried."

"It may be that some donors submit inflated appraisals because they know they probably won't get caught"

The Los Angeles Times examines the "unchecked problem with inflated art appraisals that has cost the federal government untold millions." The Senate Finance Committee is said to be "considering legislation that would require additional scrutiny of appraisals."

Monday, March 03, 2008

"A spectacular own-goal"

Randy Kennedy had a story in yesterday's New York Times on a series of work my client Christoph Büchel has been making regarding the lawsuit Mass MoCA brought against him last spring, and the museum's continuing efforts to keep from public view documents relating to the dispute. For the moment, a couple things to note about the article.

First, Mass MoCA's Joe Thompson is quoted as saying the documents are being kept hidden because they "include the names of donors and others who he feels should have the right to privacy." But we have repeatedly invited the museum to redact out any donor or bank-account information they think appropriate. (In my last letter to the museum's lawyers, I wrote: "As I have said before, we are willing to accommodate any legitimate confidentiality concerns the Museum may have through the redaction of bank account details and the like. But the Museum has no right to restrict Christoph's ability to speak about what happened in North Adams simply by applying a 'Confidential' stamp to documents it wishes did not exist. As a nonprofit, Mass MoCA has a duty to the public to be completely open about its finances, operations, and activities.")

Second, and Kennedy mentions this but I think it bears further emphasis: if the museum had had its way, all of the documents it produced would still be confidential. In August, the museum made a motion to have all documents and other discovery kept from public view. The court, quite properly, rejected the request. Sergio Muñoz Sarmiento covered this in depth last summer. As he said then, "it boggles the mind that an art institution--traditionally against censorship and creative restrictions--would try to enforce the silencing of artistic voices through force of law."

One last point. Near the beginning of the piece, Kennedy notes that Mass MoCA "sue[d] Mr. Büchel in federal court, asking for the right to open to the public an immense installation that Mr. Büchel had been assembling for months." I was glad to see that because from time to time I hear it said that what the museum sued for was a mere "declaration of its rights," that it was afraid that, if it canceled the show and took the work down, it would be sued for that and so it had no choice but to go to court to find out what it was permitted to do. Not so. From the beginning, we asked the museum to dismantle the work, and they refused. As we said in one of our briefs to the court, "Büchel has no [objection to taking down the work and putting its components in a landfill] and, in fact, believes that the foregoing is part of the appropriate remedies to which he is entitled. Simply put, MASS MoCA can -- and should -- remove the unfinished 'Training Ground for Democracy' from Building 5 and dispose of it." The museum continued the lawsuit not because it wanted to know "what its rights were," but because it wanted a particular outcome, and that outcome was to show the unfinished work to the public over the artist's objections.

Lawyer Virginia Rutledge also gets this right in her piece on the case in the new Artforum. She notes that "Mass MoCA asked the District Court of Massachusetts to declare that the museum was legally entitled to display Büchel’s unfinished work" (and also points out that this was "the first time a US art institution has ever sought legal sanction to present work against an artist’s will"). She also does a good job highlighting "Mass MoCA’s astonishing and troubling arguments regarding the status of Büchel’s work as art," including its argument that "because of the collaborative nature of the project, Mass MoCA was a 'joint owner of any copyright'" (an "insult," she adds, that "cannot easily be taken back").

Withers Bergman's Daniel McClean also gets it, in his piece on the case here (it starts on p. 7): "Mass MoCA took the highly unusual step of applying to the court for a declaration that Büchel would not be able to prevent it from displaying his disclaimed exhibit." McClean's conclusion is that "Mass MoCA scored a spectacular own-goal": "Aside from the waste of public funds involved, the [case] must be viewed as creating an unfortunate precedent, not least for striking a blow to artists' moral rights in the United States."