Status of the Rose

Brandeis President Jehuda Reinharz sent around a list of "Frequently Asked Questions'' yesterday, and it included the following:

• "The Rose is NOT going to close. The Board of Trustees voted to keep the Rose open as a teaching and exhibition gallery that is even more fully integrated into University life and the academic enterprise. A faculty-student-trustee committee is looking into ways to accomplish this goal. We envision a day when the Rose will host additional events, welcome more visitors from both on and off campus, and exhibit student and faculty art alongside some of the collection's notable works." (Just what Holland Cotter ordered up!)
• "The Board of Trustees voted to authorize Brandeis to sell a limited number of pieces in the collection -- if the need arises in the future. Nothing will be sold into the currently depressed art market."

Fairey Nuff

Some end of the week Fairey-fair use links:

Fairey was on NPR's "Fresh Air" yesterday to talk about the dispute. You can listen here.

He and Larry Lessig also spoke at the New York Public Library last night. The NYT's Jennifer Schuessler was there.

And Marquette's Bruce Boyden has the fourth in his series of posts on the dispute, this time looking at "two intriguing mysteries" in the case: (1) which photograph the work is based on and (2) how the image was created (i.e., "whether Fairey simply photoshopped the Garcia photo, or rather created the poster by hand").

"Nonprofit groups are up in arms over President Obama’s proposal to limit charitable deductions"

Robert Frank: "The plan would allow charitable donors earning more than $250,000 a year to deduct only 28% of value of any donations, down from 33% or 35% currently."

Nabbed

ARTINFO.com: "Police in Las Vegas have arrested a man suspected of stealing about $500,000 worth of art from galleries in Laguna Beach and West Hollywood 10 years ago."

"A captivating portrait of the world's biggest unsolved art theft"

The Wall Street Journal reviews Ulrich Boser's new book on the Gardner heist.

Fish Mural Suit

The ACLU filed a lawsuit against the city of Clearwater, Florida on behalf of a tackle shop owner who was fined for having a mural of game fish painted on his shop. The suit claims that the mural is a work of art and therefore exempt from the city's commercial sign regulations. Story here.

More Museum Cuts

I mentioned the Detroit Insitute of Arts and the Las Vegas Museum of Art earlier this week.

Now, the Philadelphia Museum of Art has announced that it too is "cutting staff, delaying exhibitions, curtailing programs, trimming salaries and — subject to city approval — increasing admission fees." They're eliminating seven percent of the staff.

The High Museum in Atlanta also announced a series of budget cuts, including a similar seven percent reduction of its staff.

And today the Walters Art Museum in Baltimore announced it was laying off five percent of its staff and canceling a planned collaboration with the Musee d'Orsay and the Getty. Also, "earlier this year, Hackerman House, where the Walters' Asian art collection is displayed, was closed weekdays."

As museum consultant Libby Ellis said back in December, "most people have no idea how bad things are out there today."

Agis Update

Artist Maurice Agis was found guilty of breaching health and safety rules, but the jury was unable to come to a verdict on manslaughter charges arising out of a public art tragedy in the summer of 2006. UK prosecutors said they would make a decision on whether to retry him within seven days.

I think I have a new favorite museum director

Hugh Davies, director of the Museum of Contemporary Art San Diego:

"We museum directors can huff and puff about how once we bring these artworks into our collections that they no longer have value because they've been removed from the market, that they become this special trust that is the patrimony of our cities and that they're held in trust for future generations. It's B.S. We go on and sell them and the rule is the proceeds from the sale can only go to replenish the collection."

"We have acted upon the information, but we have been unable to corroborate it"

The Boston Globe reports on a jailhouse tip in the infamous Gardner theft. So far it hasn't panned out. Geoff Edgers isn't holding his breath.

20%

The Detroit Institute of Arts is laying off about 20% of its staff. They've also cut back on some programs, canceled a few traveling exhibitions, and, in December, cut museum hours by four per week. Their operating costs are about $15 million a year.

"Now people are looking to every asset they have to unlock cash"

The New York Times had a front page story today on art-backed lending: "At a time when stock portfolios are plunging and many homes ... have no equity left to borrow against, an increasing number of art owners are realizing that an Old Master or a prime photograph, when used as collateral, can bring in much-needed cash."

Related post, from a couple years back, here.

Yeah, that'll work well with a jury

The lawyer for an art dealer being sued by a congregation of nuns in upstate New York "blasted [the] allegations against his client as 'a pack of lies.'"

Randolph College Update

In another case on the deaccession docket, the Lynchburg News & Advance's Christa Desrets reports that "Lynchburg Circuit Court Judge Leyburn Mosby Jr. ruled that a trial will determine who should get the $500,000 bond that secured the barring of the sale of the art in late 2007." As she reminds us, "after Randolph announced in October 2007 that it would sell four paintings from the Maier Museum of Art, opponents filed an injunction against the sale." Initially, the judge ordered that a $10 million bond be filed to protect the college against any damages caused by the delay. It was later lowered to $1 million, but the plaintiffs were only able to raise half that amount. The injunction was then lifted, and the suit was eventually withdrawn. The judge ordered that the trial take place within the next six months.

Response to Rosenthal

ARTnews's Robin Cembalest responds to Norman Rosenthal's call for an end to any further Nazi restitution claims:

"[T]he fact remains that restitution research is very much a work in process. As ARTnews has chronicled repeatedly over the last two decades, initial efforts to research the history of supposedly 'heirless' art ... were met with stonewalling, obfuscation, and legal obstacles. Only now are closed archives being opened and some European governments showing a willingness to investigate the provenance of works in national collections. The result is a stream of new information about looted art."

Craps

The Las Vegas Art Museum is closing. Brief story in the NYT here. More from the Las Vegas Sun here.

A Rose is a Rose . . . isn't it?

In the New York Times this morning, Holland Cotter has some advice for "university administrators toying with thoughts of closing their campus museums and peddling the art, as Brandeis recently threatened to do":

"Just stop. Period. Bad way to go. If it helps, consider your museum and its collection in purely materialistic terms, as a big chunk of capital, slowly and fortuitously accumulated. Once spent, it is irrecoverable. Your university can never be that rich in that way again. Or view the art in your care as something that doesn’t belong to you. Like any legacy it belongs to the future."

He goes on to say that "university museums are unlike other museums. They are not intended to be powerhouse displays of masterworks .... They are, before all else, teaching instruments intended for hands-on use by students and scholars." They "are, at their best, equal parts classroom, laboratory, entertainment center and spiritual gym where good ideas are worked out and bad ideas are worked off."

Obviously this is meant to be a sharp criticism of the Brandeis move, but I'm not sure how effective it really is. Remember, the university's current plan is not to padlock the doors to the Rose and put all the work on eBay. They've been saying they plan to transform it into a research-and-study-center-slash-gallery ("The Rose museum ... will be turned into an educational center for Brandeis students and faculty, Reinharz told the Globe .... It will include more student and faculty exhibits, and the public will still be allowed to visit. 'We're saying we're turning it into a gallery and a teaching site for the faculty of the fine arts,' Reinharz told the Globe").

In other words, "before all else," it will be a "teaching instrument for hands-on use by students and scholars." At its best, it will be "equal parts classroom, laboratory, entertainment center and spiritual gym where good ideas are worked out and bad ideas are worked off." It may have slightly fewer works available than it does now to serve those various functions, but it should never have been intended as a "powerhouse display of masterworks" anyway.

When you look at it that way, the move doesn't seem so bad, now does it?

"One of history's greatest unsolved mysteries"

Kriston Capps reviews "journalist-turned-gumshoe" Ulrich Boser's new book The Gardner Heist: The True Story of the World's Largest Unsolved Art Theft: "The mystery remains unsolved, but the case is reinvigorated in its retelling by a man who fully appreciates the value of the masterpieces and the magnitude of the criminal conspiracy that carried them away in the night."

Sales Tax Changes

Jo Laird emails a reminder that changes to the New York State sales tax law went into effect January 1 which will require the tax to be paid on certain sales by museums and other tax exempt organizations:

"The provision on sales at auction houses will eliminate an advantage that exempt organizations have had in selling art. If a buyer knows that he won't have to pay sales tax on a picture, he can spend more money on the work itself. That advantage has not only garnered more funds for museums and other exempt institutions; it has also affected donors' decisions in the past as to whether to sell art and donate the proceeds of the sale to a charity or to donate the art itself. Those calculations will now change."

The changes are described here.

"CAA will rep both the artist and his company, which has earned more than $4 billion over the past 15 years"

Variety reports that Painter of Light Thomas Kinkade has signed with Creative Artists Agency "in an effort to seek out TV, film and Internet projects."

Nunsense

From today's New York Post:

"The Daughters of Mary Mother of Our Savior say appraiser Mark Lasalle intentionally defrauded them by convincing them a painting they had was worth $450,000, and then promptly reselling it ... for $2 million."

"Transformative should cut both ways"

Sergio Muñoz Sarmiento takes up the question I posed yesterday:

"I would add that it wouldn't necessarily have to be a 'crass commercial artist,' but could simply be a corporation searching for advertising material, such as Apple did with Marclay's video. It cuts both ways. If artists want carta blanca to do as they wish with others' property, why shouldn't the converse also hold true? ... Transformative should cut both ways. Why should Mannie Garcia be granted less protection, or considered less of an artist, than Fairey?"

(The Apple-Marclay incident is discussed in the article mentioned here.)

GWOAL

Derek Fincham draws some parallels between the "war on drugs" and antiquities-looting policies:

"One of the weaknesses with prohibitionism is it restricts supply, without taking account of the potential demand. This makes the targeted trade ... more profitable, allowing better, more sophisticated tactics to evade law enforcement. There's a good argument I think that some prohibition helps create and incentivize large-scale criminal operations and organized crime networks."

"I think unless you’re modifying it and making it your own, you’re on very tenuous ground"

Jim Johnson, who, when he first heard about Shepard Fairey's copyright dispute with the AP, said "it seems to me that AP ... has a loser on its hands legally," is having some second thoughts:

"I am given some pause though, by this remark from a recent interview with graphics guru Milton Glaser: 'For myself—this is subjective—I find the relationship between Fairey's work and his sources discomforting. Nothing substantial has been added. . . . I think unless you’re modifying it and making it your own, you’re on very tenuous ground.' If AP were to call Glaser to testify as an expert witness, old Shepard might have a tough go defending his claim to have creatively transformed Mannie Garcia's photograph of Obama."

This relates to a question I've been meaning to put to those who believe Fairey's was a fair use because of its "transformative purpose": would the argument work in the other direction? That is, assume a well-known photographer creates an image the purpose of which is to move people, express some idea, touch our souls. Now along comes a crass commercial artist who makes modest changes to the image along the lines of what Fairey did here, and then starts mass producing and selling posters of it. Now we have a totally different purpose -- to make boatloads of money. Fair use? Or is "transformation" a one-way street?

Schjeldahl on Fairey

Peter Schjeldahl's review of the Shepard Fairey retrospective at the Institute of Contemporary Art in Boston includes the following on his legal battle with the AP:

"Fairey has run into a ... predictable legal snarl with the 'Hope' poster, having lifted the image from an Associated Press photograph. ... [W]ith the A.P. seeking compensation for copyright infringement, the artist has sued for a judicial ruling of fair use. This audacious counterattack aside, the general issue is an old story of our litigious republic. Appropriative artists, including David Salle, Jeff Koons, and Richard Prince, have been sued at intervals since Campbell’s soup went after Warhol, in 1962 (but then thought better of it). As an art maven, I’m for granting artists blanket liberty to play with any existing image. I also realize that it is not going to happen, and I’m bored by the kerfuffle’s rote recurrence, with its all but scripted lines for plaintiff and defendant alike."

"I hope the maximum amount of the $50 million finds its way into the pockets of artists and those who support them"

The NYT's Robin Pogrebin tells the tale of how money for the arts ended up making it into the stimulus bill approved by Congress last week.

"My gut tells me everybody is right!"

The Fairey debate comes to The Colbert Report. Watch it here.

"I understand Fairey to have accessed the original event through the Garcia photo rather than to have physically remixed the photo itself"

In an update to the post mentioned here, David Post points to a post by the University of Chicago's Randy Picker that says the real question in the Fairey case is "what was copied from the Garcia work, as opposed to taken from the original event as accessed through the Garcia work. Copyright is all about the former and not the latter. In this framework, ... it will be incumbent upon Garcia to establish precisely what Fairey copied ... other than the underlying event. ... Garcia will find it easier to make that case if Fairey has physically worked from the original image and remixed it. Much harder, I think, if Fairey has merely looked at the Garcia photograph and then created his own image. ... [C]opyright proper doesn’t bar Fairey from accessing that original event through the Garcia photograph."

Also, Bruce Boyden has the second in a series of posts on the case, this one looking at the question who owns the allegedly infringed photo (note that, in the passage quoted above, Picker assumes it's Garcia, the photographer, and not the AP): "If Garcia is correct, there aren’t any signed agreements one way or the other here, so it all comes down to whether he was an 'employee' at the time he took the photo."

Today's Fairey

Add Temple's David Post to the list of those who think the AP's claim against Shepard Fairey is "very weak." He cites two grounds: (1) "It's not an infringement .... [W]hat Obama looks like, and the tilt of his head, are not protected original elements of the photo .... And to my eyes, the things that Fairey copied are precisely those, unprotected elements of the photo. ... What he took was Obama's face, and the tilt of his head -- not infringment, to my eyes." (2) "Even if Fairey copied copyrightable elements of the photograph, he's got a very, very strong fair use defense. One critical part of the fair use inquiry is: did the defendant have a 'transformative purpose' in using the copyrighted original. That ... means 'did the defendant have a purpose significantly different than the purpose for which the original was created.' The AP photo was created for a purpose -- as a news photograph. Fairey's purpose was completely different -- he's making a political statement (duh!), and attempting to get voters to believe in the message of 'hope,' and all the rest. Courts have, in recent years, indicated that this factor is central to the fair use defense, and I think it gives Fairey a very strong case."

Meanwhile, Marquette's Bruce Boyden kicks off a series of posts about the case by looking at why Fairey chose to sue in New York: "In choosing the Second Circuit, Fairey’s lawyers seem to have chosen the devil they know, or at least can predict, over the devil they don’t."

The Baer Law Journal

Josh Baer says he "feel[s] like the NY Law Journal reporting all these suits," but this week alone includes the following:

• "Earl Davis, the son of the painter Stuart Davis, has sued Joseph Carroll for $3 million alleging the 8 Davis paintings Carroll bought from Salander O'Reilly were knowingly bought ... improperly." More from the Courthouse News Service.
  
• "Gerard Basquiat has sued David DeSanctis Contemporary Art Inc for $1.75 million over the sale of Basquiat 'fine art limited editions' they produced together." More on this one from the New York Post.
  
• "Ross Galleries LLC has sued their new parent company AJ Ross Auctions LLC, Applejack Art Partners Inc and Jack Appelman [over] $1.3 million in due payments on promissory notes." Sorry, got nothing on this one.

Anti-trust

Artnet's Paul Jeromack mentions two "recent museum deaccessions" included in Christie's latest Old Master sale -- one sold by the Met at Sotheby’s in 2006 for $632,000 (the buyer just resold it for $722,500), and the other, "a masterpiece of Anglo-American neoclassicism and very much unlike most pictures by West in American collections," sold by the Corcoran for a "bargain" price of $458,500.

We're often told that the reason for the strict rules against deaccessioning (what Felix Salmon has dubbed the "prissy fatwa," and which recently got the National Academy into so much trouble and, apparently, led Brandeis University to close its museum just to get around) is that works of art are held by museums "in trust" for the public (see, among many examples, here and here).

My question is: When did these two works get released from trust? Is there some sort of waiver process? Is there a magic spell that AAMD members can recite over the works to release them from the bonds of in-trust-ness?

Are they held "in trust" or not?

More Difficult Questions

Last night is was "Who Owns Art?" This morning, the Boston Globe asks: "What is crime and what is art?"

Who Owns Art?

I make an appearance in this piece by Nicole Savery (page 11) on some ongoing ownership debates.

Fairey Files (UPDATED 3X)

Shepard Fairey has filed for a declaratory judgment that his Obama image does not infringe The AP's copyrights in the photo on which it is based.

UPDATE: Here is a longer story from Randy Kennedy of the New York Times. He points out that, "further complicating the dispute, [photographer Mannie] Garcia contends that he, not The Associated Press, owns the copyright for the photo, according to his contract with the The A.P. at the time."

The complaint is here. It's nicely done, and about what you'd expect: the central idea is that Fairey used the photo "as a visual reference," which he "altered ... with new meaning, new expression, and new messages." One thing I found interesting is that the photo Fairey used was actually a much less tightly cropped shot that included both Obama and actor George Clooney (you can see it here). That's interesting because it signficantly weakens the argument against fair use that was summed up recently by Columbia's Jane Ginsburg -- "it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable." It turns out that Fairey didn't use the entire image [or did he? -- see Update 2 below], but the fact that so much speculation about the source of the photo turned out to be wrong also serves as a reminder of how thin the relevant copyright is here: the most distinctive element of the image is Obama's face, and the AP has no copyright in that. So Fairey's position is even stronger than (I at least) previously thought. At the same time, I don't think I'd go so far as the title of this post by Jonathan Melber: "The AP Has No Case Against Shepard Fairey." (In fairness to Melber, he's much more cautious in the body of the post, saying that "the AP would very likely lose this case if it ever ended up in court.") As Daniel Solove said the other day, "it's hard to know what's up or down [with] fair use anymore."

UPDATE 2: Interesting forensic analysis via Daryl Lang at PDNPulse.com calling into question the claim that the photo used was the wider shot that included Clooney.

UPDATE 3: Ann Althouse hopes Fairey wins: "To make an Obama poster, an artist has to refer to some image of Obama, and Fairey chose a perfectly generic photograph. How else are you supposed to do an artwork about a famous person? Garcia's image was mainly the raw material Obama provided by having a face."

Ray Dowd of the Copyright Litigation Blog says the complaint "fails to mention Fairey's strongest potential defense: the poster is core political speech made during the course of a political campaign protected by the First Amendment. There is a lot of good case law about political speech, and the fact that the image was used and sold to promote a political viewpoint during a political campaign gives it a great level of deference."

Hold Your Horses

Sergio Muñoz Sarmiento points to a story about a public art controversy in Denver. I thought this was interesting to hear:

"City rules require any public-art installation to remain in place for at least five years, to honor the artist's intent and give the work a chance to grow on the public."

"What makes people — even cops — think photography is a crime?"

Ann Althouse notes a story about a guy who was arrested after he "snapped a photo of a woman's bottom as she sunned herself in Central Park." He sued, and the city paid $8,000 to settle.

"Beginning Feb. 17, the museum no longer will be open on Tuesdays. It already is closed on Mondays"

The Akron Beacon Journal reports that the Akron Art Museum, "facing a roughly 25 percent decline in its endowment, will close on Tuesdays, lay off employees and cut some other workers' hours." The number of exhibitions at the museum next year will also drop to eight or nine, down from 15 this year.

To the Editor

The New York Times runs a bunch of letters to the editor today on the Rose story. A sampling:

"My wife, my two sons, several of my closest friends and I graduated from Brandeis University. We are upset that Brandeis may sell some or all of its wonderful art collection. But we would be a great deal more upset if Brandeis were to lose top faculty, allowed gifted students to drop out, ignored infrastructure problems or closed down. In a meeting with alumni leaders in the fall, Jehuda Reinharz, president of Brandeis, stated that he would not allow a student to drop out because his or her parents could no longer afford tuition. I thought that was a wonderful position, and it made me prouder of my university than any work by Jasper Johns or Andy Warhol ever did. In these difficult times, Mr. Reinharz may not be able to keep his commitment. But I applaud his sentiment, and wish you would not make it more difficult for my university to try to do something wonderful. No one thinks selling art is desirable. But allowing students to have to leave school is not an acceptable alternative."

"[The decision] is a fundamental failure of understanding that a university museum and its art are ... an essential tool for learning ...." (This one is from Steven Henry Madoff, a senior critic at Yale University School of Art.)

"As a Brandeis student and a three-year employee of the Rose Art Museum, I am heartbroken by the decision by Brandeis University to close the museum. But I have yet to hear any other feasible plan for saving Brandeis from fiscal ruin. Brandeis has already planned cuts across all departments, including a 10 percent faculty reduction .... Should we fire half of our professors? Close half our buildings? ... I hope Brandeis can find another way to survive this crisis. I love the art, and I love the museum. But I would rather have Brandeis without the Rose than no Brandeis at all."

"As a Brandeis student, I am saddened by the decision to close the Rose Art Museum. It is an invaluable treasure on this campus. After each discussion I’ve had on the issue, I’ve come to the same conclusion: I’d rather graduate from a university without an art museum than one without an art department."

"Of the university that ignited my intellectual curiosity and helped to instill in me a lifelong love of the arts, I ask: If you do not stand for the arts when it would be easier not to, did you ever really stand for them at all?"

"[A]rt is no less dispensable to the life of the mind than are books and microscopes. As a Brandeis alumnus, I fear that Brandeis will now be known as a second-class institution. Having ripped off their students and alumni by devaluing their degrees, Brandeis administrators and trustees have provided cover for other institutions to do the same."

Legal trouble of a different kind . . .

. . . for artist Shepard Fairey, currently embroiled in a copyright dispute over his famous Obama image:

"[Fairey] was arrested Friday night on his way to the Institute of Contemporary Art for a kickoff event for his first solo exhibition .... Two warrants were issued for Fairey on Jan. 24 after police determined he'd tagged property in two locations with graffiti based on the Andre the Giant street art campaign from his early career, police Officer James Kenneally said Saturday. Fairey, 38, of Los Angeles, is scheduled to be arraigned on the misdemeanor charges Monday in Brighton District Court, said Jake Wark, a spokesman for the Suffolk District Attorney. Wark said Fairey would also be arraigned on a default warrant related to a separate graffiti case in the Roxbury section of Boston."

I guess this makes 15, 16 if you count the brief detention in Japan.

That makes three

According to Charlottesville's The Hook, Christie's filed a lawsuit against collector Halsey Minor "on Monday in Northern California federal court ... for fraud, negligent misrepresentation, and breach of contract over $7 million he bid for three paintings he purchased at an auction in July."

That's in addition to (1) the lawsuit he brought against Christie's in December and (2) the lawsuit Sotheby's brought against him in September.

What's going on with the Rose?

Earlier today, Geoff Edgers posted a letter from Brandeis president Jehuda Reinharz, apologizing for "screw[ing] up," and explaining that his initial statements "gave the misleading impression that we were selling the entire collection immediately, which is not true. .... The Museum will remain open, but in accordance with the Board’s vote, it will be more fully integrated into the University’s central educational mission."

But what does that mean? Edgers's Boston Globe colleague Tracy Jan sheds some additional light on the subject:

"In reality, the Rose museum as it exists today will eventually cease to operate and instead will be turned into an educational center for Brandeis students and faculty, Reinharz told the Globe on Wednesday. It will include more student and faculty exhibits, and the public will still be allowed to visit.

"'We're saying we're turning it into a gallery and a teaching site for the faculty of the fine arts,' Reinharz told the Globe. 'We don't want to be in the public museum business.'

"As for the art, Reinharz clarified that the university does not intend to put all 7,180 works up on the auction block. Only a 'minute number' would be sold 'if and when it is necessary,' he said in Wednesday's interview."

That sounds an awful lot like what I predicted in an email to Felix Salmon on Jan. 30:

"They want to sell a few paintings without getting hassled by the museum groups. I think, at the end of the day, we're going to end up with a research and study center plus art gallery that looks remarkably like the Rose Art Museum, except it's not subject to the museum ethics rules."

Iowa Denial

Iowa legislators are denying reports (mentioned yesterday here) that they have been discussing requiring the University of Iowa to sell its Pollock.

Mars and Venus

I mentioned a piece yesterday by Judith Dobrzynski, which talked about the differing reactions to the Rose story by those inside the art world, on the one hand, and the rest of the world, on the other.

Here's an example from the rest of the world: San Diego law professor Gail Heriot. She begins:

"Like all endowed colleges and universities, [Brandeis has] taken it on the chin of late. But Brandeis has been hit harder than most, since Bernie Madoff has ... uh .... made off with the fortunes of several of its most loyal donors. In the judgment of its president, the best way to deal with the crisis is to sell off the museum's holdings, which are valued at more than $300 million and which include works by Roy Lichtenstein and Andy Warhol. The money from that sale will allow Brandeis to continue its core mission, which is education, not the collection of art. I'm not inclined to second guess him on that."

She then mentions the AAMD guidelines, and says:

"As Wood and Ricketts point out [in this piece], this position is a bit self-serving. 'The "public trust,"' they note, 'seems to coincide almost miraculously with the professional interests of museum curators, and art works can be traded, in effect, only for more art.' It's also a little odd. Is there any other asset of colleges and universities that must be treated this way? If I donate land to a college or university, does it have to be sold for other land?"

As an aside, she notes: "I helped draft an agreement between USD School of Law and one of our donors a few months ago. The agreement is structured to allow USD flexibility in case USD finds itself in a dire financial situation. The donor was perfectly happy with that, and I suspect that Brandeis donors would also prefer that Brandeis attend to its core mission first in times of financial crisis. I do not believe that anyone is claiming in the Brandeis case that the sale of the art contravenes any explicit agreement with any donor."

"That's the trouble with fair use"

I started collecting reactions to the AP's claim of copyright infringement re Shepard Fairey's Obama image. A few more:

Brooklyn Law's Jason Mazzone asks, "Is the use fair? Hard to say. That's the trouble with fair use." He goes on to say that "a more interesting problem" is whether the AP photograph meets "the threshold requirement of originality. . . . Arguably, Fairey has simply reproduced Obama's facial features--as to which the AP owns no copyright."

GW Law's Daniel Solove acknowledges that "copyright law is suffering from a bit of delirium these days, so it's hard to know what's up or down or fair use anymore," but thinks this "might" qualify: "The [Fairey] poster isn't a direct copy of the [AP] image. The background of the photo and other details are different in the poster. The poster is quite different in its use and nature from the photo, and the market for the poster strikes me as significantly distinct from that of the photo."

In the comments to Solove's post, New York Law's James Grimmelmann says it's an "unambiguous fair use" (though he concedes that "perhaps there's only a 70% chance a court will reach the right result"). He adds that "Fairey has a decent case that his poster isn't even substantially similar to the photograph. Once you remove all the uncopyrightable elements of the photograph -- e.g., Obama's facial shape -- and all the elements that Fairey didn't copy -- e.g., the focus -- there's not very much left." (Bob Clarida made a similar point here.)

One Eighty

Felix Salmon offers some answers to the questions I raised in the update to this post yesterday. Libby Ellis emailed some thoughts in response:

"I don't understand Felix's 180 on Iowa. How could he support selling Pollock's Mural precisely because it's one of the greatest American paintings of the 20th century and ought to be in a more prominent museum collection that can presumably promote and protect it better (his argument in August), and then suddenly say that the same piece should never be sold - not even to another museum - because it's 'core' to the collection? That is quite an about-face.

"As for the Rose situation, the parent-child analogy can only be taken so far. Obviously parents don't have the right to sell or maim their children, but, like it or not, parent institutions generally have broad powers over the subsidiary, including the power to sell assets or fold completely. In the case of Iowa, the museum is subsidiary to the university, which, as a public institution, is in turn beholden to the state of Iowa. It's 'too easy,' because the law with regard to ownership rights in these cases is pretty clear cut. Salmon is correct that the case of the Barnes is entirely different. . . .

"As for donors, yes, this episode will in all likelihood make them think twice and read the fine print more carefully before donating their works to a museum with a parent. But donors need to understand - and I am sure most of them do - that there is risk in giving anything to any charity anywhere. There is no iron-clad guarantee that a gift will be stewarded according to the donor's wishes in perpetuity - and yes the Barnes is a great example here. If Brandeis is flagrantly violating the terms of donors' gifts, then the AG will have to sort it out, but I cannot imagine that art donors to the Rose were not made aware of the fact that the university ultimately owns the works and reserves the right to close the museum. ... Philanthropy is always a bit of a gamble, and you do your best to make smart decisions and to support institutions with the most integrity who are best positioned to carry out your wishes for as long as possible. And obviously charities need to take those wishes extremely seriously (which is why I find moving the Barnes, instead of selling one picture to properly endow it, to be a travesty). If you can afford to give away multi-million-dollar paintings, you can and should afford some amount of Buddhist detachment from it all, all the while donating your time and expertise, too, to the charity to help them be good stewards.

"I am not defending Brandeis; it was a bone-headed move and it will bring a host of negative consequences, not to mention bad karma, to the university that it probably didn't anticipate. I think the real tragedy of the Rose - aside from the fact that art history students will in the future be denied a fantastic learning resource - is the chutzpah of it all, the rupture of an implicit, if not explicit, contract between the museum and the university: in exchange for autonomy, the museum is supposed to gain other benefits: facilities, annual funding, indirect marketing/fundraising/administrative support, a built-in visitor base, etc. Living under the wing of an established, historically financially secure, large parent institution is supposed to bring stability and benefits to the museum that compensate for the lack of autonomy. Every museum like the Rose knows that the university has the 'nuclear option' at its disposal, but it's a tacit understanding that it will never be triggered, presumably because the parent recognizes the benefits that the museum brings to its brand and offer. (And, by the way, this is not only the case with university museums; many people may not realize that The Jewish Museum in New York, for example, is a subsidiary of The Jewish Theological Seminary, who also possesses the nuclear option but works to maintain peaceful détente with the museum.) At the end of the day, however, the parent does reserve the option, and, yes, with these governance arrangements the parent's first responsibility is to itself. That being said, one would hope and expect that the parent would not exercise this right, the same way anyone possessing even a rudimentary moral code doesn't kick their indigent grandmother out of their house onto the street: even though you have the legal right to, it's just not done.

"As for the foundation/lending model, I am not sure what that has to do with the Rose situation. I also like the idea in principle, because it's a light, flexible model that, as Salmon says, works to maximize visibility of works and doesn't carry with it the high fixed costs and sclerosis that so many museums develop over time. But as we know many art lending foundations decide eventually to create their own museums (it's irresistible!): The Nasher Sculpture Center, Noguchi Museum, Fisher Landau Center for Art, and, soon, the Broad Museum, among many others. This results, again, in the same parent-subsidiary structure, whereby the foundation retains ownership and can decide to deaccession whatever it wants and close the museum if it chooses. I am not sure how a donor to an art foundation can be guaranteed that the work will never be sold, or that it will be shown more than if it gave it to a stand-alone museum. Surely the amount of visibility depends in large part on the quality of the work, its relationship to the rest of the collection, and demand for the work from other museums. In any case, even if Brandeis is trying to use the 'low visibility' argument as part of its rationale for closure, everyone knows it's bogus - if they cared about visibility, they obviously wouldn't be talking about selling.

"The Nasher Foundation, btw, as Carol Vogel reminded us recently, sold 200 works last May to raise money for its endowment which supports the Center (which it owns). This sale barely raised eyebrows - and certainly didn't trigger the prissy fatwa - because it was done by a foundation and not a museum. So the foundation model, frankly, can be another way to get around the fatwa."

[Note: The Carol Vogel article Libby refers to is here, and includes the following: "In addition the Nasher Foundation, which owns the [Nasher Sculpture Center] ..., sold about 200 paintings and sculptures in auctions at Sotheby’s in May, raising $47.4 million more for the endowment."]

It's On

The AP is coming after artist Shepard Fairey over his iconic Obama image:

"'The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission,' the AP's director of media relations, Paul Colford, said in a statement. 'AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution.'"

Fairey is being represented by the Fair Use Project at Stanford University. Its executive director, Anthony Falzone, says "we believe fair use protects Shepard's right to do what he did here."

The (AP!) article also quotes Columbia lawprof Jane Ginsburg as "questioning" the fair use claim: "What makes me uneasy is that it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable, and it's not just used in a collage. I think that's pretty radical."

Previous post on this issue here.

On Deck (UPDATED)

Looks like a sale of the University of Iowa Museum of Art's Jackson Pollock is once again being discussed. Richard Lacayo and Tyler Green have the latest.

As Lacayo reminds us, there was a "brief uproar" around the painting last August. My posts on that uproar include this one, this one, this one, this one, this one, this one, this one, and, finally, this one.

The interesting twist this time is that one of the arguments that was made against the sale back in August was that the painting belonged to "the people of Iowa" (see. e.g., here). Felix Salmon was never much impressed by that argument (see here). In any event, in this case, at least according to this initial report, it's the people of Iowa, acting through their elected representatives in the state legislature, who seem to be pushing for the sale.

UPDATE: Salmon weighs in on this latest news here. He's changed his mind on the Pollock: he now believes "the museum must be able to hold onto it." If anything is to be sold, "they should be non-core works chosen by the museum to minimize any damage done by the deaccessioning. Anybody setting up an art museum has to let that museum take full control of ... its artworks." They can't "overrule the museum" and sell "key" works.

There are a lot of "musts" in there, but where do they come from? Why must the museum have full control over whether or not a given work is sold? Why can't the university overrule the museum? As important as the Rose is, it is also part of Brandeis University. Don't the people charged with running the school have an obligation to do what they think is best for the university? Where does this principle of autonomy come from, and does it apply only to campus art museums? If a university decides it's in the best interests of the school as a whole to shut down the football program, would we say they can't "overrule the athletic department" and do so? Would we say anybody setting up a football program has to let the coaching staff take full control of the program? Again, I'm not defending the wisdom of Brandeis's decision here. I just think it's strange to say they had no right to make it.

"Can you blame the public for believing that art is an investment, to be cashed in when expedient?"

At Forbes.com, Judith Dobrzynski tries to explain the widely divergent reactions of the art world and the general public to the Rose story.

She lists a bunch of reasons why the public has come to see art "as a tradeable commodity."

One good reason that doesn't make the list is that (whatever else it may be) art is a tradeable commodity. People trade it every day! (Even museums.)

The Art Market Monitor had some similar thoughts a few days ago here ("What seems to amplify the problem is the very success of art in recent years in market terms. Without a market value, the museum would not be a container of assets the university might view as, well, assets.").

Poster Boy

In this morning's New York Times, Randy Kennedy has an interesting story on the arrest of "Poster Boy" -- the street artist who has "made his outlaw presence known all over the city by cutting and pasting the images that are already [in the subway system] in the form of ads."

Poster Boy is also a legal philosopher: "'Socially, I’d like people to understand that there is a difference between what is right and what is just,' he said. 'If there is a law that is outdated, impractical, and/or immoral, people should have the right to challenge it. Remember, slavery was considered legal at one point. I consider the world’s current modus operandi a modern slave system. I intend to challenge it in any way I can.'"

Lawprof Ann Althouse isn't buying it: "Basically, it's collage with other people's property. Obviously, it's criminal to destroy the advertisements businesses have paid for — paid the city, by the way, so the citizens who are entertained should see that they are in fact being forced to pay for the entertainment."

"... has sent a chill down the collective spines of the major auction houses"

Judd Tully has a piece in the February Art+Auction on the Christie's decision I wrote about back in November here.

I'm quoted in the piece as follows:

"The logic of this decision, says Donn Zaretsky of the New York law firm John Silberman Associates, means that 'any subsequent buyer — no matter how remote in time and no matter how many intervening transactions have occurred — could potentially bring a fraud claim against an auction house as market maker.'"

The story notes that Christie’s has filed a motion for reargument, on the ground that New York law "is clear. . . that a stranger to a transaction has no standing to bring a fraud claim, unless the defendant actually intended to defraud that third party [through his reliance] on its misrepresentation."

Brief Rose

I didn't get a chance today to mention this excellent piece by Daniel Grant on the Rose closing. As he was with Grant's story on the Prince-Cariou lawsuit last week, Sergio Muñoz Sarmiento is impressed. The piece covers a lot of ground, but for now I'll just highlight this passage:

"A larger question may be whether selling the contents of a museum to benefit the parent institution is good economics. 'When both the art and stock markets are down, does it make sense to sell art to buy stocks?' said University of Chicago economist David Galenson. He speculated, however, that university trustees may have seen their principal donors tapped out from the last fund-raising campaign and that Brandeis was not in a strong position to borrow funds from banks. 'If other options are closed off, it's not an unreasonable position to say that this is an educational institution in financial trouble and that art is an asset like any other, so why not sell it.'"

Sergio agrees: "We don't know what financial disasters await Brandeis, and we certainly are not in the position to cry over sold artwork when ... a university's mission should be narrowly tailored to academics, professional training, and education. Many will argue that access to art is part of this education, but no one said that a university had to supply what is already present outside a university context."

Diddy Suit

The Boston Globe's Jonathan Saltzman reports that glass artist Tom Patti has sued "hip-hop and fashion mogul" Sean "Diddy" Combs in US District Court in Springfield, Massachusetts, claiming that the packaging for Combs's "Unforgivable" cologne infringes the copyrights on two "tabletop glass sculptures [Patti] created in the early 1980s called 'Compacted Gray With Clear and Ribs' and 'Modulated Solar Airframe.'"

Out of Time

Interesting art-related decision [$] out of the Eastern District of New York recently (Sands v. Bernstein, 07 Civ. 9824). Plaintiffs had a painting rejected by the Warhol authentication board in 1997. That same year, they entered into a letter agreement with the defendant under which, if he was able to get the decision reversed, they would sell the work to him for $65,000. The original letter, dated Feb. 25, 1997, said "if I succeed in having the price authenticated this year . . ." (my emphasis). In Dec. 1997, they amended the letter agreement to say "this year i.e. 1998 or longer if needed . . ." (again my emphasis). In 2007 plaintiffs demanded the return of the work; defendant refused, relying on the "longer if needed" language. On summary judgment, the court ruled for the plaintiffs, holding that "the contract has expired." It noted that "where an agreement does not specify a date or time for performance, New York law implies a reasonable period," and went on to hold that, although the "longer if needed" language is "unclear," it "cannot reasonably read to extend the life of the contract over ten years."

A second claim -- for a 5 percent commission (amounting to $170,000) on the sale of another work -- survived the motion and will go to trial.

Outliers

The New York Observer carries a review of philosopher Denis Dutton's new book The Art Instinct: Beauty, Pleasure, and Human Evolution which includes the following:

"An entertaining chapter on famous frauds tells the story of Eric Hebborn, who forged 'new' works by old masters suffused with such deep understanding of the artists he copied that connoisseurs still find his work ravishing (and maybe you do, too—his fakes are thought to be on display in museums all over the world). From the disinterested point of view of aesthetics, then, shouldn’t we credit Hebborn with the same skill as the great artists whose work he replicates? As Mr. Dutton points out, it just doesn’t feel right to do that. ... He argues that we feel wronged by forgers no matter how talented because style in art evolved as a means of distinguishing the exceptional individual from the crowd of suitors—a principle that applies equally to the Mona Lisa and Duchamp’s ready-mades."

Postmortem Publicity Rights

I've mentioned the debate between SMU law professor Joshua Tate and the team of Mitchell Gans, Bridget Crawford, and Jonathan Blattmachr regarding the taxation and disposition of postmortem publicity rights. Tate now has a new article on the subject available for download here.

Rose Break (UPDATED 2X)

Let's take a look at some other art law stories besides the closing of the Rose. Start with a settlement of the closely-watched lawsuit mentioned in the "update" here. The New York Times's Randy Kennedy reports:

"Two museums announced Monday that they had reached a settlement with heirs of the original owner of two Picasoo paintings . . . who contended that they had been sold under duress in Nazi Germany. The terms of the agreement, reached as a trial was about to begin in federal court in Manhattan, were not disclosed. But [MoMA] and the [Guggenheim] said in a statement that they would continue to own the works. ... In 2007 lawyers for Julius H. Schoeps, a great-nephew of the paintings’ original owner, Paul von Mendelssohn-Bartholdy, told the museums that they believed Mr. Mendelssohn-Bartholdy, a German Jewish banker who died in 1935, had sold the works ... under duress, and demanded their return."

UPDATE: More coverage from Lee Rosenbaum.

UPDATE 2: Good analysis from Richard Lacayo: "As with most settlements the details of this one are sealed, so we may never know whether or how much money changed hands. And by itself the mere fact that the two museums chose to settle doesn't mean they didn't have faith in their own arguments. (Or, for that matter, that the plaintiffs didn't have faith in theirs.) But jury trials are a crapshoot and for the museums at least, the paintings were too important to lose."

Midday Rose (UPDATED 2X)

The Art Market Monitor has some thoughts in response to Roberta Smith's paean to the indispensability of art, which I mentioned last night:

"It’s hard to argue with this position. The destruction of the Rose Museum is a terrible act. What seems to amplify the problem is the very success of art in recent years in market terms. Without a market value, the museum would not be a container of assets the university might view as, well, assets. The question is whether art can have great cultural value without having market value. It’s a question that lies beyond our capacity to answer. But nonetheless remains at the heart of the battle over deaccessioning, the art market and, now, the destruction of the Rose Museum."

Richard Lacayo picks up on a suggestion by Felix Salmon that, under the doctrine of "cy pres," the Massachussets attorney general could "grant a waiver and allow the university to dip into endowment funds," which would otherwise be prohibited by state law. I don't know much about the relevant Massachusetts law, but I'd be surprised if the "cy pres" doctrine could be used to avoid compliance with state law like that. "Cy pres" is a trust law doctrine which says that, if the funds in a charitable trust can no longer be devoted to the purpose for which the trust was created, they can redirected to another, related purpose (so, for example, the March of Dimes Foundation was permitted to switch from fighting polio to fighting other childhood diseases after the polio vaccine was developed). Perhaps I'm mistaken, but I don't think "cy pres" can be used to "grant a waiver" from express statutory requirements.

Lacayo also says the following:

"Meanwhile, what does all this mean for the museum association rules meant to discourage museums from selling art from their collections? Brandeis is presumed to have decided simply to close its museum in order to get around those rules and have a free hand to sell what it pleases. To some people this whole sorry episode suggests that museum association rules are such a hassle they will just encourage schools to trash their museums entirely rather than answer to anybody's code of ethics. But what it still demonstrates to me is how important the rules remain, especially for campus museums, because in times of trouble university trustees and administrators will always be tempted to look at their museums as giant piggy banks, with lots of very valuable, very portable assets. ... If there's no defensive perimeter, no way to penalize museums that sell, in no time they'll all do it. And when they do, more often than not —much more often than not — their public works will fall back into private hands."

(Salmon shows up in the comments to say: "The deaccessioning rules I think were put in place as an obstacle to museums selling off their own art. They're clearly not much use as an obstacle to universities selling off their museums' art without the museum's consent.")

I've had my say on this kind of slippery slope argument (e.g., here and here), but for now I just want to emphasize what this position entails. The slippery slopists are willing to accept the loss of at least one museum (and, if others adopt what Laurie Fendrich is calling the Brandeis Maneuver, perhaps more) to prevent the speculative risk that, if we allowed museums to sell individual artworks in times of crisis, "in no time they'll all [be doing] it." So they would rather see the Rose (and perhaps other museums) fail than take a chance on trusting the people who run our museums to responsibly exercise the discretion to occasionally sell works from their collections (just as we trust them to responsibly exercise the discretion to sell works in order to raise funds to buy more art, which nobody (well, almost nobody) objects to). (I know I will hear in response that the Rose didn't "fail," but that's not the point. The fact is that the strict, no-exceptions-under-any-circumstances policy against deaccessioning led directly to its closure, and the logic of the slippery slope argument is that we'd rather have that happen than live in a world where individual works can be sold for anything other than the purchase of more work.) As for Lacayo's concern with works falling back into private hands, couldn't that be dealt with through the adoption of the Ellis Rule?

UPDATE: On the "cy pres" issues, this post from Jack Siegel of Charity Governance Consulting LLC explains that there are some cy pres-like mechanisms built into the governing Massachusetts statute. UPDATE 2: Still more on this issue from the Brandeis student newspaper: "The current law is based on the Uniform Management of Institutional Funds Act, which Massachusetts adopted in 1975. UMIFA states that the governing board of an institution may not appropriate funds from its endowment exceeding the 'historic dollar value' of the endowment. (Historic dollar value is defined as the total value of all contributions made to an endowment at the time each of the gifts that make up that fund was donated.)"

Weekend Rose

Quick end-of-the-weekend Rose roundup.

Roberta Smith says the move is "an act of breathtaking stealth and presumption":

"In a just and moral society, art is crucial to our understanding of freedom, difference and individual agency. The message out of Brandeis University last week — to its own students and to the world — was that when the going gets tough, none of this matters. Art is dispensable."

It's a "destructive — and self-destructive — move," but she also gets why it's happening:

"What better way to avoid the messy legalities of deaccessioning artworks, with the attendant denunciations from Association of Art Museum Directors and other professional organizations that monitor and weigh in on sales of individual works of art? (The association’s guidelines say that art works can be sold only to finance acquisitions.) If there is no museum, there are no guidelines to violate."

The New York Times editorial board also condemns the move:

"Selling the university’s art collection would help plug its financial gap, but it would create a gaping hole in Brandeis’s mission and its reputation. It would default on one of the great collections of contemporary art in New England .... Surely it would make more sense to share the pain across the university’s budget."

Felix Salmon listens to a presentation Brandeis's president and COO made at an open forum at the school last week, and comes away thinking "it's clear ... that closing the Rose is completely and utterly unnecessary." And he still thinks the reason it's happening is to "get around [the] deaccessioning rules":

"Weirdly, neither [COO] French nor [president] Reinharz felt the need to explain why they were closing the museum: maybe they thought it was obvious. And no one asked them, either. But whenever journalists have asked the question, the answer has been the same: basically, it's really difficult to sell art out of a museum, so if we're going to be selling art, we're going to have to close the museum first. . . .

"Keeping the museum open would surely make selling the art more difficult -- the director would surely object were any important works to be put on the block. . . . I suspect that shuttering the museum is basically a way of minimizing the opposition to any given sale: if everything goes according to the trustees' plan, then once the current firestorm is over, the university might be able to sell off individual works very quietly, without having anybody try to stand up for them and the role they play in the university's cultural life."

(Salmon had more on how the prohibition against deaccessioning led to the closure of the Rose late Friday.)

The Art Market Monitor is connecting more dots.

Lee Rosenbaum asks whether Brandeis president Jehudah Reinharz should be deaccessioned.

Sergio Muñoz Sarmiento is almost convinced "that the deaccessioning police caused the Rose Art Museum's fire-sale."

Thomas Garvey says "between Brandeis and the Rose, I'll take Brandeis - and I don't see why some of the Rose's holdings can't wind up in the collections of other area institutions, where they'll actually be more accessible to the Boston public."