Wednesday, April 30, 2008

Twitchell Settlement

Kent Twitchell has settled his lawsuit over the destruction of his "Ed Ruscha Monument" for $1.1 million. Details in the Los Angeles Times.

Bridgeman v. Corel

There was an interesting panel discussion at the New York City Bar Association last night on Bridgeman v. Corel, the now nearly ten-year old Southern District decision holding that photographs of public domain works are not protected by copyright because they lack the requisite "originality." Rebecca Tushnet has a thorough play-by-play, and later adds some related thoughts.

Judge Posner
was originally supposed to be on the panel but couldn't make it (and was ably replaced by Judge Kaplan, the author of the Bridgeman decision), but here's what he might have said, from his The Intellectual Structure of Intellectual Property Law (with William Landes):

"The court [in Bridgeman] likened these transparencies to copies produced by a photocopy machine and held that since photocopying obviously fails the originality requirement of copyright law, ... so did the transparencies. Left out of this account is the fact that ... making high-quality transparencies of artworks is a time-consuming process that requires considerable skill on the part of the photographer ....

"The court's insistence ... that a finding of originality requires a 'distinguishing variation' between the original and the copy ... creates a perverse incentive to produce second-rate or poor-quality copies. ... [But] the incentive to obtain copyright protection by producing a second-rate copy can be curbed by insisting that second-rateness is not a form of originality. ... So the court's decision may be correct after all."

Monday, April 28, 2008

Orphan Works Update

Lots of coverage of the revised orphan works legislation introduced last week in Congress. The Chronicle of Higher Education summarizes:

"Lawmakers who lead committees on intellectual-property issues on Thursday introduced legislation that would exempt scholars and others from facing excessive copyright-infringement penalties for using orphan works. They would need to first diligently try to locate the works’ owners. Should the owners surface after a work has been reused they would receive some compensation, but could not stop the derivative creation from being distributed."

More from Ars Technica and from Daryl Lang in Photo District News.

I wrote about an earlier version of the legislation here and here.


A special section ($) in today's New York Law Journal includes a piece by Lawrence Kaye and Howard Spiegler on the "qualified appraisal" requirements for charitable donations of artwork.

It includes this closing thought: "[T]here are indications that donations of artworks could be subject to greater scrutiny by the IRS in coming years."

"Once people see the padlock, you're finished"

Kelly Devine Thomas walks around the Met with Larry Salander, for "the first interview Salander has given since his gallery was closed by court order last October."

Agam Again

Yaacov Agam's sculpture is back on view in downtown Chicago -- or is it?

The work -- mentioned earlier here and here -- "was originally dedicated in a ceremony with Mayor Harold Washington in 1983, becoming a part of Chicago's famous outdoor art gallery that also features works by Picasso and Marc Chagall." Its paint began to fade and peel, and three years ago was taken down for restoration. Agam is deeply unhappy with the quality of the restoration -- to the point that he takes the position that what is now on view is not a restored version of the original work but, instead, an unauthorized derivative work, in violation of his rights under copyright: "'The public should know that this is not a real Agam,' he said by phone Thursday from Paris. 'It is an unauthorized copy.'" (Because it's a pre-1990 work, VARA does not apply.)

Agam said he plans to travel to Chicago on May 3 to inspect the work and consult with his attorney there about possible legal action.

Two Suits

Josh Baer reports on two new art-related lawsuits.


"Gerard de Geer and Sarastro LTd have filed suit for $10 million against the Authentication Committee for the estate of Jean-Michel Basquiat (and its individual members) and against Carl Flach and Stellan Holm. The suit alleges they refiused to authenticate the painting 'Fuego Flores' that was purchased from Flach in 1987 who bought it from Holm in 1986."

And two:

"Artist Ilana Zadik has sued Agora Gallery and Ariel Kahana for $3.7 million alleging that they lost, damaged, misappropriated or gave away 15 paintings."

"Gross" Thoughts (UPDATED)

Reaction to last week's "Gross Clinic" denouement from Richard Lacayo ("there's one last piece of this puzzle that doesn't make for a happy ending. The Cello Player, the Eakins canvas sold by the Pennsylvania Academy [to help pay for The Gross Clinic], disappeared into a private sale. There's no telling when or if it will ever be on public view again, though the anonymous buyer reportedly agreed to lend it back to the Academy occasionally") and Lee Rosenbaum ("the sale was inappropriate but executed in the most responsible way possible, under the circumstances").

UPDATE: Further thoughts from Lee.

Friday, April 25, 2008

A Randolph Sale

Also in today's New York Times, Carol Vogel reports that Randolph College is selling one of the four paintings involved in its recent deaccessioning lawsuit at Christie's on May 28: "The [Rufino Tamayo] painting had been the cover image of Christie’s Latin American sale catalog in November. But the college was forced to withdraw [it] from the November auctions when a group of alumnae, students and donors obtained an injunction to stop the sale. The group posted half the $1 million bond required by the court but failed to raise the rest. The injunction was lifted in February; papers were filed last month to withdraw the lawsuit." She also reports that "no decision has been made about selling the other works."

Malevich Compromise

Randy Kennedy in this morning's New York Times: "The city of Amsterdam and the heirs of the Russian avant-garde painter Kasimir Malevich have reached an agreement in a long-running battle over the ownership of 14 works that the heirs had said were rightfully theirs. The city announced on Thursday at the Stedelijk Museum in Amsterdam that the heirs would be given title to five important Malevich paintings owned by the city that have been in the Stedelijk’s collection for many years. In return, the heirs have agreed to drop claims to the other works and end a lawsuit filed against the city."

Thursday, April 24, 2008

"This is it. Now we can celebrate."

I hadn't realized that the "Gross Clinic" story wasn't over, but today brings news that, through the sale of another Eakins painting, the Philadelphia Museum had raised the last of the $68 million that was needed to keep the painting from leaving town.

The buyers were the Denver Art Museum and the Anschutz Collection, so it's a real life example of Adrian Ellis's proposed approach to deaccessioning -- mutually advantageous trades between public institutions. Lewis Sharp, director of the Denver Art Museum, reminds us that there is a flip side to Philadelphia's loss: "To bring a painting of this importance into the community, it is a great thrill." Philadelphia Inquirer art critic Edward Sozanski concedes that the museum "found ideal homes for the Eakins works." So who could object?

"Why does the lion want to eat the mouse?"

Martha Lufkin has a report on the Rauschenberg trash lawsuit in The Art Newspaper.

Wednesday, April 23, 2008

Not to Burn

Nabokov's son has decided not to comply with his father's direction to destroy his unfinished last novel. See here for the background.

Russian Art Lawsuit

In today's New York Sun, Kate Taylor has a story on a "porcelain centerpiece that was among the top presale lots in Sotheby’s Russian art sales last week" but is now "at the center of a legal dispute, in which a Great Neck man claims that the dealer who put the piece up for auction stole it from his home and then told him he would be killed by the Russian mafia if he tried to recover it."

The parties had reached an agreement with Sotheby's to allow the sale to go forward (with an estimate of $2-3 million) -- "with the successful purchaser acquiring full title and Sotheby’s holding onto the proceeds until the dispute was settled" -- but it failed to sell. The lawsuit followed.

Tuesday, April 22, 2008

Kurtz Charges Dropped

The AP reports that a federal judge yesterday dismissed the mail and wire fraud indictment against Buffalo professor Steven Kurtz as "insufficient on its face."

Sergio Muñoz Sarmiento says it's about time ("After approximately five years of wasting public monies on a ridiculous charge . . . ").

For background, see here.

"It seems that neither diamonds nor fine art are truly forever"

The International Herald Tribune has a lengthy story on the Ralph Esmerian saga. It's mostly about the $187 million he owes Merrill Lynch for financing his purchase of the Fred Leighton jewelry company, but also touches on his troubles with Christie's and Sotheby's:

"Some of the paintings Esmerian gave to the American Folk Art Museum were outright gifts, and some were merely promised as gifts, with the understanding that they were being used as collateral on a loan from Sotheby's. A few weeks ago the museum was forced to take down one of its greatest prizes from Esmerian's painting collection, a mid-1800's masterpiece from Edward Hicks's 'Peaceable Kingdom' series that had hung at the museum since its West 53rd Street building opened in 2001. The painting was sent to Sotheby's, where it is estimated to fetch up to $8 million, which will be applied to Esmerian's $11.5 million debt. Although a promise is only a promise, the museum was taken by surprise. 'We didn't know about Ralph's problems,' said Susan Flamm, a spokeswoman."

Monday, April 21, 2008

Bill Patry takes a look at a new "open blog for artists to post material they think has been ripped off, preferably by corporations."

That Yale Art Controversy (UPDATED)

Lawprof Eugene Volokh has a good post on the "abortion art" controversy at Yale. (For background, see here.) As he points out, since "Yale is a private university, ... the issue here is properly one of professional principles of academic freedom rather than of the First Amendment as such."

The latest news is that Yale is saying it will not let her show the work unless she admits it was a hoax all along.

UPDATE: Randy Kennedy has more in this morning's New York Times: "Yale University said on Monday that it would not allow a senior to participate in a campus art exhibition unless she made a written statement that her 'performance,' in which she repeatedly inseminated herself and then induced miscarriages, was a fiction that she had concocted."

"Architects are now regularly asked to sign confidentiality agreements that forbid them to talk to the press"

Nicolai Ouroussoff in The New York Times this weekend.

Sunday, April 20, 2008

"What helped make this possible is the existence in the US of tax incentives for gifts of works of art that benefit the donors while they are alive"

Tate Director Nicholas Serota on how to increase giving to British museums:

"In Britain, there are tax benefits when works of art are given to the nation - but the donor has to be dead. This is the acceptance-in-lieu scheme, which gives tax relief on the deceased's estate. ... I would like to see the principles of the acceptance-in-lieu scheme extended to allow living donors to have a similar tax benefit through income tax and capital gains tax relief, during their lifetime. In the last 10 years acceptance-in-lieu has brought over £250 million-worth of works into the cultural sector - I think it is time to make a case for lifetime giving."

Here is more on the acceptance-in-lieu scheme.

"Addressing concerns about the decline of French culture . . ."

" . . . , French Culture Minister Christine Albanel unveiled a series of proposals earlier this month to stimulate spending on art works by French buyers. She wants to change exisiting laws so that the sale and auction of modern art can become as simple in France as it is in booming American and British markets. She has also proposed tax breaks and no-interest loans to induce small businesses and individuals to begin investing and collecting contemporary works that many now feel are beyond their financial range."

Full story here from Time magazine. The proposal still needs parliamentary approval.

Another Pollock Authentication Dispute

From Friday's New York Post (headline: "You Don't Know Jack!"):

"A world-renowned fingerprint analyst says a purported Pollock painting found in a Long Island garage is a worthless knockoff - and an expert who authenticated it based on a fingerprint is a fraud. Peter Paul Biro had declared the recently sold artwork a Pollock after saying fingerprints he found on the frame matched those on a paint can stored at Pollock's studio in East Hampton. But Pat Wertheim, a veteran law-enforcement fingerprint expert, contends that the prints were actually copied from the can and applied to the painting, likely by Biro."

Biro -- who's also involved with the Teri Horton "Pollock" -- "dismissed the allegation as 'libelous' and 'inviting swift legal action.'"

Friday, April 18, 2008

Salander Update (UPDATED)

Bloomberg's Philip Boroff reports that "U.S. Bankruptcy Judge Cecelia Morris [yesterday] approved a motion to convert the Salanders' [personal bankruptcy] case from a Chapter 11 reorganization to Chapter 7 liquidation."

UPDATE: More from The New York Times.

Inside Art (Law)

Lots of art law in Carol Vogel's "Inside Art" column in today's New York Times.

First, she writes about "the tumultuous saga of the jeweler Ralph O. Esmerian — who owes some $187 million to Merrill Lynch, $11.5 million to Sotheby’s and $7.5 million to Christie’s" and is "is scheduled to pay down a chunk of his Sotheby’s debt" when it sells his version of Edward Hicks's "Peaceable Kingdom" at auction next month. For background, see here and here.

She also covers Randolph College's upcoming sale of four paintings, one of which, coincidentally, happens to be another version of Hicks's "Peaceable Kingdom." She mentions the ongoing fight over the $500,000 bond the opponents of the sale posted. Their lawyer claims the school is not entitled to any part of the bond: "There are no damages, because they still have the art." The school counters that the originally scheduled sale "would have provided an estimated $50 million. 'Since we were prevented from selling the art in November, we have been missing the interest on that money every day.'"

Thursday, April 17, 2008

But who's counting?

The Guggenheim Bilbao's financial director confesses to embezzlement: "I have appropriated various amounts for my own benefit for a total of EUR 486,979.38."

Wednesday, April 16, 2008

Machu Picchu Update

Derek Fincham has the latest on the Yale-Peru dispute. Peruvian researchers are now saying more than 40,000 objects were taken -- which is 10 times the original estimate. Derek wonders if Peru is in danger of overplaying its hand: "By increasing the claims that Yale University has mistreated Peruvian heritage, I wonder if perhaps Peru may risk losing the bargaining chips which were gained in the 2007 [memorandum of understanding]."

Tuesday, April 15, 2008

Bond Battle

Randolph College is going after the $500,000 bond that was posted by the plaintiffs in the (since withdrawn) lawsuit challenging the school's right to sell four paintings. "According to the [new] lawsuit, the school estimated it would have received about $50 million for the four paintings .... The interest alone from the sale would have generated thousands of dollars in income daily for the school, the suit states."

Scientifically Proven reports that "the Prado has withheld a widely acclaimed Francisco de Goya work from an upcoming exhibition, citing doubts about the painting's attribution." More here from Tyler Green.

Virginia Heffernan isn't impressed with the "science" behind the decision.


Sergio Muñoz Sarmiento points to a report in Spanish newspaper El Pais to the effect that "The Dali Foundation reported net earnings in 2007 of €1.3 million based on reproduction rights, trademarks and rights of publicity for Salvador Dali and his works." The foundation's director is quoted as saying they are also "collaborating regularly with police and Interpol. Grand forgeries are rare, but fraudulent reproductions based on abuse of the original contracts are quite frequent."

Monday, April 14, 2008

"You don't get yourself into negotiations involving a stolen picture and large sums of money" (UPDATED)

The Los Angeles Times reports today that Jonathan Petropoulos has resigned as director of Claremont McKenna College's Center for the Study of the Holocaust, Genocide and Human Rights in the wake of a controversy relating to attempts to recover a multimillion-dollar Pisarro painting. "The woman Petropoulos says he was trying to help [recover the painting] has accused him and a German associate of trying to extort 18% of the painting's market value as payment for shepherding its return."

Thanks to Terry Martin for the tip.

UPDATE: More from Derek Fincham: "The ultimate issue I suppose is what kind of compensation these kinds of experts can and should claim. The lawyers involved, and the Art Loss Register all take a healthy commission; and Petropolous certainly seems to have been amply compensated for his time at $350/hour."

Tax Change

The New York Times reports that among the changes in the new budget approved by the New York State Legislature last week is a requirement that "nonprofit organizations like museums ... collect sales taxes on T-shirts, mugs and other items."

András Szántó: "The same politicians who walked way from half a billion dollars in annual revenues from a Manhattan traffic congestion charge will combat future deficits with a tithe on postcards and mouse pads."

"When you give away $50 million or $60 million of folk art -- I could've sold that and not had to borrow anything"

Bloomberg's Lindsay Pollock and Philip Boroff have more on Ralph Esmerian's "financial pickle," including the following:

"Even New York's American Folk Art Museum, an institution Esmerian championed for three decades, was forced to relinquish a prized painting because of his woes. ... [O]n May 22, Sotheby's will offer a painting of about 1846 from Edward Hicks's famous 'Peaceable Kingdom' series, plucked from the wall of the Folk Art Museum. A star of its collection since 2000, ... the Hicks is projected to sell for up to $8 million. ... The painting is one of approximately 400 American folk art works that Esmerian promised to give to the museum in 2000. The museum celebrated the gift by publishing a lavish 571-page catalog and mounting a major exhibit of the works. Esmerian said that while about 200 of the artworks were outright gifts, in an unusual arrangement, he pledged the other 200 in 2005 as collateral for an $11 million Sotheby's loan."

Late today, the New York Court of Appeals stayed (at least for the time being) the sale, scheduled for tomorrow night, of "115 Esmerian family heirlooms, " in what Christie's has been calling "the most important antique jewelry auction in history."

Sunday, April 13, 2008

"Lawyers, artists the world over are captivated by case"

Mary Wozniak has a package of stories in today's Southwest Florida News-Press on the Rauschenberg-trash lawsuit. I'm quoted in this one. The point I was trying to make is that even if you accept that Rauschenberg "abandoned" the physical objects at issue, that doesn't necessarily resolve the question of what intellectual property rights he still has in them (e.g., under VARA). The latter question doesn't arise in the case of a couch, but it does when you're talking about works of art.

"After this, Gehry, Rem Koolhaas — boring"

I meant to link to this terrific article last week about the East Hampton house designed by artists Arakawa and Gins. "The house is off-limits to children, and adults are asked to sign a waiver when they enter." (The "main concern" is the flooring, which "rises and falls like the surface of a vast, bumpy chocolate chip cookie.") It's all connected to their theory of "reversible destiny" -- "essentially, they have made it their mission — in treatises, paintings, books and now built projects like this one — to outlaw aging and its consequences." Sign me up!

50 x 50

In Friday's New York Times, Carol Vogel had a story on collectors Herbert and Dorothy Vogel and their "50 Works for 50 States" initiative -- they're going to give blocks of 50 works to each of 50 museums, across the country. The gifts come with two conditions: "The museum must exhibit the works within five years (with exceptions made when expansion or renovation closes a building), and the works may be transferred only if they are given to another institution as a group."

475 Kent Update

The Brooklyn Paper's Caroline Jackson: "Roughly two dozen of the more than 200 artists and residents who were kicked out of [475 Kent Ave.] in January are participating in a group show, '475 Kent Lives,'" at the Queens Museum of Art.

The Brownstoner says there's a chance the residents could be back in next month.

One Moore Judge

The University of Alabama’s lawsuit against artist Daniel Moore is now on its fourth judge. District Court Judge David Proctor, who'd presided over the case since July 2005, recently recused himself "after strong disagreements with Moore over the appointment of a special master to broker a settlement between the two sides."

For background on what is actually a very interesting lawsuit, see here and here.

Thursday, April 10, 2008

June 15

One more item from Josh Baer: "If you have, or think you have, an art claim against the Salander-O'Reilly Galleries you have until June 15th to file a claim with the US Bankruptcy Court."

More on the Arbus lawsuit

From Randy Kennedy in today's New York Times.

Josh Baer says "sources close to the deal report that Phillips (as noted in the catalogue) 'has guaranteed a minimum price to the owner of the sale and has direct financial interest in such lots.' Unlike media reports of the value being in the hundreds of thousands, the estimated value of the sale was approx $1.7-2.4 million, with the guarantee being in that range (we believe)."

"A bill to do something about a discriminatory tax situation that’s been affecting artists for 40 years"

A piece in the Chicago Reader on arts funding in Illinois includes the following:

"As things stand now, anyone who owns a piece of art can donate it to a charity and take a nice fat tax deduction equivalent to its current market value. But if the artist who created the work donates it, only the cost of materials can be deducted. We’re talking canvas and paint. This is a patently screwy arrangement, and local artists, who are often hit up to donate their work for charity auctions, have frequently lamented it. On the upside, all kinds of art qualify under the proposed [Artist-Museum Partnership Act], including 'literary, musical, artistic, or scholarly compositions or similar property,' so long as the work’s value is established. An NEA report ... makes the case for passage, arguing that the change will encourage artists to donate their work and especially aid small and medium-sized institutions."

Wednesday, April 09, 2008

Arbus auction off

Newsday reports: "[Phillips] auction house has canceled a New York sale of Diane Arbus photographs amid a lawsuit accusing their owner of taking advantage of the man who sold them to him."

Previous post on the lawsuit here.

Tuesday, April 08, 2008

"Simply to give with no tax benefit to himself is a remarkable gesture"

The U.K. Times has a story on David Hockney's donation of a major painting to the Tate (reportedly -- at 40' x 15' -- the largest ever given to the museum). He calls on more artists to follow suit: "More artists should donate. They should think about it. You can’t quite trust collectors who say they’ll give to the Tate and often don’t."

I can think of one thing that would help the cause here in the U.S.

Monday, April 07, 2008

"As a lot of people figure out, it's really complicated to run an art museum"

A couple of interesting articles toward the end of last week on the rise of private museums: Lauren Schuker in the Wall Street Journal ("The Firestorm Over Private Museums") and Kate Taylor in the New York Sun ("At Odds Over Art"). Eli Broad's recent announcement that he would not be leaving his art collection to LACMA seems to have prompted a lot of thinking by collectors about how best to dispose of their art collections.


A London appellate court has reversed a decision awarding co-authorship rights to a former member of the 60's rock band Procol Harum over the song "A Whiter Shade of Pale," discussed earlier here. Apparently he waited too long to assert the claim.

"What experts described as the largest private sale of art ever"

In Friday's New York Times, Carol Vogel reported that "the heirs of the legendary dealer Ileana Sonnabend have parted with some $600 million worth of paintings and sculptures in two transactions to cover their estate taxes."

More from Kate Taylor in the New York Sun.

Vogel's story included this interesting tidbit:

"Perhaps the most famous painting she owned — Mr. Rauschenberg’s 1959 'Canyon' — will never leave the collection .... In its center is a stuffed bald eagle that cannot be sold because of a federal prohibition on trafficking in endangered species."

Boetti Bout

Josh Baer:

"In what is turning into a very nasty case there have been lawsuits filed between Sperone Westwater and the Archivio Alighiero Boetti (and some family members) over the authenticity of works exhibited and sold by the gallery in 2002. After being sued in Italy the gallery filed a detailed suit in NYC outlining allegations of reneged authentications over Boetti artworks shown and sold in the US."

Fisk to Appeal (UPDATED)

The AP is reporting that Fisk is going to appeal Judge Lyle's recent ruling in the O'Keeffe case. "The school said in a news release Thursday the order threatens the safekeeping of the collection."

Lee Rosenbaum was tipped off about this several weeks ago.

UPDATE: More from Richard Lacayo.

Friday, April 04, 2008

Intrepid Lawsuit

The AP reports that the Intrepid Museum is facing a lawsuit claiming that it lost several World War II-era photographs that had been loaned to it. The plaintiff says the photos were worth about $175,000.

For its part, the museum is playing the Guilt Card: its president is quoted as saying, "We are surprised and disappointed to hear of the filing of this lawsuit have referred this matter to our insurance representatives." He added that the museum had "limited resources" and "this unfortunate action detracts from our carrying out [our] critically important national mission."

Wednesday, April 02, 2008

In the long run . . .

At Andrew Sullivan's blog, an interesting take on the recent New York magazine article on Larry Salander, which made the case that his fall was caused by his (overly) ambitious project to create a new market for old master work:

"I don't have a lot of sympathy for those who bemoan contemporary art and seek a return to the old-masters. Appreciating formalism is one thing; crusading against contemporary art in order to correct an alleged cultural imbalance is something else entirely. When you buy a piece of art from a living artist you are funding her next project; you are allowing her to continue with her work. What does it matter to Rembrandt how much his painting sells for?"

"Recognizing a descendible postmortem property right has federal estate tax consequences that state legislators appear not to have considered"

In the Yale Law Journal "Pocket Part," Mitchell Gans, Bridget Crawford, and Jonathan Blattmachr look at the estate tax implications of the recently enacted California publicity rights legislation:

"Legislators, proponents of these laws, and legal commentators have overlooked two significant federal estate tax consequences of these new state law property rights. First, a descendible right of publicity likely will be included in a decedent’s gross estate for federal estate tax purposes. Second, the estate tax value of rights of publicity easily could exceed the estate’s liquid assets available to pay taxes. These tax concerns could be eliminated, however, by rewriting the statutes to limit a decedent’s ability to control the disposition of any postmortem rights of publicity."

Similar legislation is still pending in New York.

Tuesday, April 01, 2008

"Without freedom, no art"

From today's New York Law Journal ($): "An unlicensed street vendor, who sold tiles decorated with photographic reproductions, was entitled to First Amendment protection, a Manhattan [criminal court] judge has ruled. The court held that the peddler's 'creations' amounted to 'artwork' within the meaning of a 1997 injunction, in which New York City agreed to permanently refrain from enforcing licensing requirements against vendors who sold 'paintings, photographs, prints and/or sculpture.'"

The decision is here. The 1997 case is here.