I think they need better talking points

Ford Bell, President of the American Association of Museums, has a letter to the editor of The New York Times, responding to the Floyd Norris piece I mentioned here.

He writes in to say that Norris failed "to consider the essential point of museum collections: once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations."

But, as I keep saying: THEN WHY ARE THEY SELLING THEM?

Just this past Friday, we learned that the Montclair Art Museum was going to (aggressively) sell off a number of objects, including a "classic" Pollock drawing. Was that work, having fallen under the aegis of a museum, not held in the public trust, to be accessible to present and future generations?

Recently the Indianapolis Museum of Art, to much praise, set up a public database of all the objects that, despite their having fallen under its aegis and therefore being held in the public trust to be accessible to present and future generations, it decided to sell off, thereby making them inaccessible to present and future generations.

Again: are the works held in trust to be accessible to present and future generations, or not?

As one honest museum director put it: It's B.S.

In his letter, Bell also argues that "allowing a museum to peddle its collection to cover operating debts would be like allowing a financial fiduciary, such as a bank, to raid assets held in trust to cover a hole in its own balance sheet." I dealt with this argument back in December (I figure if they're just going to keep recyling the same old arguments, I can just recycle mine):

"This is an interesting sounding analogy, but is it right? Do museums have the same relationship to the works in their collections as banks do to the assets they hold for their customers? Museums aren't holding the works in trust for someone else. They own them. I'm not sure it's a useful way of looking at things to say that the works belong to 'the people' and are merely 'held' by the museum. For one thing, what people? The people of a particular city? State? Nation? And even if you do think of it this way, what would be wrong with a sale between two New York museums -- say the National Academy sold to the Met? Wouldn't that just be like the bank moving my money from one of my accounts to another?

"What strikes me as most odd about this whole argument, however, is that nobody, including the AAM, thinks museums should never sell work. It's okay to sell -- just as long as you use the proceeds to buy art, rather than expand or improve your facilities, or increase the hours you're open to the public, or improve your educational programs, etc. So really it's fine for the bank to 'raid the assets' it holds in trust -- as long as they're raided for the right purposes."

"Christie's notified Weiss's representatives and his art agent that all was well"

I took a look at the complaint in the Christie's withdrawn-guarantee lawsuit. Here's the timeline it presents:

• July 23: Christie's top execs meet with Weiss to discuss the work.
• July 28: Christie's memorializes its offer in writing.
• "Late July": Weiss accepts the offer and informs Sotheby's he is "going with Christie's."
• August 7: Christie's takes possession of the work. Here the complaint alleges that, before turning over the work, Weiss "sought reassurance from Christie's that there was an agreed upon deal" and Christie's honorary chairman Christopher Burge "assured Weiss that Christie's standard operating procedure was to come to an agreement on the terms of the deal just as the parties had done, and that 'papering' the parties' agreement was a mere formality."
• August 26: Christie's sends a consignment agreement, including the $40 million guarantee. Weiss's lawyers send back some comments.
• September 11: Christie's sends a revised agreement, in both a black-lined form and "a clean copy that is ready for signature" (the complaint puts that in quotes; I assume it was taken from Christie's cover letter).
• September 16: Weiss signs the agreement and faxes it to Christie's.
• September 18: Christie's requests the original counterparts.
• September 23: The original counterparts are delivered to Christie's.
• September 24: Christie's informs Weiss that it will not honor the guarantee.
• November 12: The work fails to sell at auction.

Astor Trial About to Begin

This morning's New York Times previews the criminal trial of Brooke Astor's son, Anthony Marshall, and his co-defendant, Francis X. Morrissey Jr., a lawyer who was involved in her estate planning. Jury selection begins today, and the Times reminds us that an art-related charge is at the center of the case:

"Both men face charges of conspiracy and scheming to defraud. Mr. Marshall ... also faces a charge of first-degree grand larceny, the most serious count on the indictment, for selling one of his mother’s Childe Hassam paintings for $10 million and pocketing $2 million as commission. If convicted of the top count, he could face up to 25 years in prison. ... The indictment against Mr. Marshall contends that he tricked his mother into thinking it was necessary to sell the Hassam painting, 'Up the Avenue from 34th Street,' by telling her she was running out of money."

Less and less engagement

Geoff Edgers rounds up the latest museum-related bad news. The University of Connecticut museums are restricting their hours, and closing entirely on the weekends. A couple of Pennsylvania museums may close down altogether.

And Tyler Green reports that, due to a budget-related security staff shortage, the Hirsshhorn "has been forced to close substantial sections of the museum."

Gee, it's a shame museums don't have any untapped sources of revenue to help carry them through rough times.

"As I held Kaindl's ad in my hands, the injustice of the outcome rankled"

Regina Hackett on "how the legal system, the press and his nerve failed Dale Chihuly."

"Bernie Madoff is to Larry Salander what AIG's losses are to your personal 401(k)" (UPDATED 2X)

Ed Winkleman: Three Grumpy Thoughts on the Salander Case.

UPDATE: Bruce Watson: "The greatest strength in Salander's scheme lay in its simplicity. Unlike Bernie Madoff, who had to continually find fresh money to replenish his business, Salander merely had to keep investors from discovering each other."

UPDATE 2: Paddy Johnson agrees with Ed that "the comparison of Salander to Madoff is sensationalistic and premature."

"Evidently, Maluk did not overexert himself in satisfying his heroin fix"

A second arrest has been made in the New Haven art thefts I mentioned last week. Mark Durney has some thoughts on earlier Connecticut art thefts. Noah Charney points out that "Yale has provided a petri dish for the study of art crime over the past two months alone."

"A Tug of War Over Robert Motherwell"

Robin Pogrebin reports on a pair of dueling lawsuits.

"Some works will be sold at Christie’s spring auctions"

Carol Vogel's latest "Inside Art" column reports that the Montclair Art Museum has "decided to begin aggressively deaccessioning ... artwork, costumes, rugs and books."

In other words: it's selling objects that, we are solemnly told, it holds "in trust" for the public, in this case the dear citizens of Montclair, New Jersey.

And it is doing so aggressively.

Among the objects previously held in trust but soon to be aggressively deaccessioned is a "classic" 1951 Pollock drawing. (The museum's director wonders if "it really matters if we have a Pollock drip when you can take a bus and be in the city in 20 minutes, where you can see lots of work by Pollock.")

And here's the kicker: although the proceeds will be used to acquire other work, "what the museum hopes to buy in its place has yet to be decided."

So let's review the bidding.

Selling a couple of paintings to keep a 183-year old museum from closing its doors? The Worst Thing In The World. Horrible beyond words. Intolerable.

Aggressively selling off numerous objects -- including a "classic" Pollock -- in order to buy other work that hasn't even been identified? Not a problem. Not a dirty word. Sell away!

Does this really make sense to anybody?

"It is often said that a high-profile art theft ... can actually be a good thing for increasing visitors"

Derek Fincham on the "Munch effect."

Salander Indicted (UPDATED 3X)

The New York Times reports:

"A noted Upper East Side art dealer has been indicted on charges he stole $88 million from investors and collectors who consigned artwork to him and said they were cheated out of the sale proceeds or never saw the pieces again .... The dealer, Lawrence B. Salander, and his business, the Salander-O’Reilly Galleries, were charged by a grand jury with 100 counts including grand larceny, falsifying business records, scheming to defraud, forgery and perjury ...."

UPDATE: Mark Durney comments: "This would appear to be another case of investor anxiety exposing another Ponzi scheme. ... Certainly, the art market is not as far removed from Wall Street as some would like to believe. ... Could this lead to more regulation in the art market? It should not take a recession to expose an $88 million dollar fraud. However, culpability also rests on the shoulders of investors as they should be more careful with their money and look past those resplendent Upper East Side front doors."

UPDATE 2: Judith Dobrzynski: "Everyone who ever visited his new gallery on East 71st Street in New York wondered how Salander did it; we're about to learn more details. In the context of Wall Street scandals, this must look small -- but the art world doesn't need this now."

UPDATE 3: "Art-World Madoff Arraigned in Manhattan Court."

"Top Ten Things Every Artist Should Know"

Heather Bhandari and Jonathan Melber, authors of the just-released Art/Work: Everything You Need to Know (and Do) As You Pursue Your Art Career, which touches on a number of art law issues, will be doing a workshop/book-signing tonight at McNally Jackson bookstore in New York.

"President Obama Stands By Proposed Charitable-Deduction Limits" (UPDATED 3X)

The Chronicle of Philanthropy has the story. And from the NYT's Live Blog of tonight's news conference:

"Mike Allen of the Politico asked Mr. Obama whether he was reconsidering his plans. No, the president said. ... 'I’ll tell you what has a significant impact on charitable giving, is a financial crisis and an economy that’s contracting,' he said. 'And so the most important thing that I can do for charitable giving is to fix the economy, to get banks lending again, to get businesses opening their doors again, to get people back to work again. Then I think charities will do just fine.'"

UPDATE: Harvard economist Martin Feldstein, who's a member of the President's Economic Recovery Advisory Board, disagrees:

"President Obama's proposal to limit the tax deductibility of charitable contributions would effectively transfer more than $7 billion a year from the nation's charitable institutions to the federal government. But the high-income taxpayers affected by the rule change are likely to cut their charitable giving by as much as the increase in their tax bills, which would, ironically, leave their remaining income and personal consumption unchanged. In effect, the change would be a tax on the charities, reducing their receipts by a dollar for every dollar of extra revenue the government collects. It is hard to imagine a rationale for taxing schools, hospitals, medical research budgets and arts organizations in this way."

UPDATE 2: Tom Maguire's with Feldstein: "During his press conference Obama explained, apparently with a straight face, that making it more expensive for people to donate to charity by reducing the value of the charitable tax deduction will not affect the level of charitable donations."

UPDATE 3: From Thursday's Washington Post: "President Obama defends his proposal to cut the tax deductions that wealthy Americans can claim for their charitable donations by arguing that the shift would not have an adverse effect on giving, but two independent analyses concluded that the proposal could result in a drop of as much as $3.87 billion for the already reeling nonprofit sector." Diana Aviv, president of Independent Sector, a national coalition of charities, is quoted as saying any decrease in charitable giving caused by the proposal would be "seen as a stake in the heart. With all other means of income down, the idea that there will be another potential cut to the income of those nonprofit organizations feels catastrophic. It is utterly unacceptable." A former tax counsel to the Senate Finance Committee says: "Of course it's going to affect behavior. The charities recognize that. Everyone does. . . . People just don't have their feet on their ground if they're not recognizing that reality."

"The first meeting largely consisted of discussions revolving around the exact charge, or purpose, of the committee"

The Committee on the Future of the Rose Art Museum had its first meeting.

"No one likes to have anything stolen, but when it’s something that’s absorbed as much time, energy & emotion as a painting, it’s especially bad news"

Police in Connecticut discovered 39 paintings that had been stolen from various New Haven venues, including Yale’s Slifka Center and the public library. The paintings were recovered during a weekend drug raid; the art had apparently been traded for bags of heroin. The New Haven Independent says "police expect to arrest the thief later this week." The Hartford Courant has more. The Yale Daily News talks to Noah Charney, who happens to be teaching a course on art crime there this semester:

"Charney said the fact that these stolen works were not big ticket items is notable because most art thefts are of pieces of relatively little monetary value. 'There are hundreds and thousands of art crimes per year,' Charney said. 'It’s good to highlight the extent of the problem and not focus on the really big headline cases.' He said he was not surprised to learn that the artwork had been traded for drugs because he said it is very difficult to sell art for cash. 'It is too dangerous and difficult to get cash for the art that they’ve stolen,' Charney said. 'The safer solution in terms of minimizing arrests is to use stolen art for barter or as collateral with other criminals.'"

"Here was someone we thought was a supporter of ours, and he pulled the rug out from under us"

Sadly, artists Arakawa and Gins (mentioned earlier here) were among Bernie Madoff's victims, losing their life savings. Wall Street Journal story here.

More on Media Coverage of Art Crime

From Mark Durney. Earlier installment here.

Bonus Post

The Wall Street Journal: "American International Group Inc. (AIG) and Starr International Co. have resolved a long-running dispute over an art collection valued at one point at more than $15 million, in order to focus on a broader fight over control of Starr's ownership stake in the insurer. In a court stipulation filed Friday, AIG stated it has no interest in or right to possess 95 pieces of artwork that had been maintained in its offices. However, the artwork won't necessarily be immediately returned to Starr International, or SICO. The art will be used to satisfy any judgment in AIG's favor in a pending federal case over a block of AIG shares held by SICO.... The federal lawsuit ... is set for trial in June."

Christie's Sued

For $40 million. The New York Times:

"Christie's is being sued by a family trust led by the Connecticut collector George A. Weiss, who says the auction house reneged on a $40 million guarantee when it tried but failed to sell a 1964 painting by Francis Bacon in November. The lawsuit, filed in the United States Southern District Court on Friday, claims that Christie’s ... agreed to give the trust, Weiss Family Art, a guarantee — a sum promised to the seller regardless of the sale’s outcome — of $40 million for the painting. ... An agreement was struck in late July, but by September, after the auction house already had the painting, Christie’s said it would no longer honor the guarantee because of the faltering global economy. Christie’s was not able to sell the painting. Now the trust is suing for the $40 million it says it was promised."

You can guess what Christie's defense will be from this Nov. 2, 2008 article by Carol Vogel (which bore the headline: "No Guarantee For This One"):

"Early last summer a ... collector negotiated a hefty guarantee from Christie's in consigning his 1964 'Study for Self-Portrait' by Francis Bacon for the fall auctions. In the months it took to hammer out details of the contract, economic turmoil grew so worrisome that Christie's got cold feet and withdrew the guarantee. The auction house persuaded the seller to offer the Bacon anyway, and it is one of the highlights of Christie's Nov. 12 sale. Experts say that the full-length portrait ... should sell for around $40 million."

And here's Vogel's report the morning after the sale. Experts were wrong: "What was expected to be the star -- a 1964 self-portrait by Francis Bacon that was estimated at $40 million -- went unsold without so much as a bid."

Singer on Art Philanthropy

From Dwight Garner's recent New York Times review of philosopher Peter Singer's new book on world poverty, "The Life You Can Save":

"Some of Mr. Singer’s contentions are harder to stomach. 'Philanthropy for the arts or for cultural activities is, in a world like this one, morally dubious,' he declares. The Metropolitan Museum of Art bought a painting by Duccio in 2004 for more than $45 million, an amount, Mr. Singer says, that would pay for cataract operations on 900,000 blind or near-blind people in the developing world. He continues: 'If the museum were on fire, would anyone think it right to save the Duccio from the flames, rather than a child?'"

"What do people opposed to the sale of paintings think suddenly poor institutions should do?"

I've mentioned a couple of times how the attitudes towards deaccessioning among those within the art world are so different from those outside the art world. Those inside the art world tend to look at deaccessioning as a Crime Against Humanity (though of course, if the proceeds are used to buy more art, deaccessioning "is not a dirty word").

Those on the outside . . . well, here is New York Times business reporter Floyd Norris (via):

"[O]ne museum that sold artwork is to be punished by not being allowed to borrow art from other museums. There was outrage earlier this year when Brandeis University announced plans to close its art museum and sell the paintings. The university’s endowment was devastated by bad investments. What do people opposed to the sale of paintings think suddenly poor institutions should do? Close? Seek government bailouts? Should Brandeis close down a few academic departments, or cut back on scholarships, to keep its art?"

"We want to get to trial and UA doesn't"

The University of Alabama's lawsuit against sports artist Daniel Moore is still rolling on. Moore has a statement about the case here.

"Overall, we would much prefer the New York legislature keeping its nose out of private sector business" (UPDATED)

Jack Siegel, author of the Desktop Guide for Nonprofit Directors, Officers, and Advisors, is not impressed with the NY anti-deaccessioning bill. He says "we can understand why the New York Legislature would stick its nose into museum business if it is funding grants to those museums, but we don’t like this legislation to the extent it applies to private, self-supporting museums. The state is acting as if the artwork is public property."

He also seems to endorse the Ellis Rule: "we think a better approach would be to permit small museums to sell works to other museums to cover operating expenses. That keeps the art work public and allows small museums the opportunity to better capitalize themselves."

UPDATE: Similar thoughts from Sergio Muñoz Sarmiento: "Wow. It baffles the mind that during these dire economic times state legislators would be more preoccupied with saving one or two Warhols than with drafting and passing bills that would lower crime rates in the state, increase jobs, and updating our faltering subway system."

"Stranger still, the project has never been given a formal unveiling, the idea never credited to any person, and the work never titled"

The San Antonio Current has a story on a very odd copyright lawsuit that's an excellent example of how difficult it can sometimes be to separate idea from expression.

Arbus Suit Settled

The lawsuit over the sale of a group of previously unknown Diane Arbus photographs has settled. The Maine Antique Digest has the story. The parties will apparently share any sales proceeds, though in what proportions was not disclosed.

Brodsky Beat (UPDATED)

Lee Rosenbaum has the scoop on the forthcoming NY State anti-deaccessioning legislation (mentioned earlier here). She's hearing "the bill will most likely be introduced tomorrow."

The New York State Board of Regents already has rules in place to regulate deaccessioning. But, as Lee explains, "the Board of Regents has authority only over New York museums that were chartered after 1889. Older museums, including the National Academy ..., were chartered directly by the state legislature. The proposed legislation, unlike the Regents' regulations, would apply to all museums in the state, regardless of when they were chartered."

In terms of rationale, it's the same old same old: allowing deaccessioning for any purpose other than acquiring new work would "permanently endanger the integrity and existence of museum collections handed to us by earlier generations as a sacred cultural and ethical trust."

A "sacred cultural and ethical trust" -- unless, of course, a museum wants to acquire some shiny new artworks, in which case: hey, knock yourself out! Sacred shmacred. Sell to your heart's content!

It seems to me the strict anti-deaccessionists' position rests on a particular conception of what a museum is for. As Berkeley's Michael O'Hare (mockingly) summarized it, they seem to think "the purpose of art is to be in a museum as soon as possible and to stay in that museum forever, with the important corollary 'in a museum' does not mean 'on display' or 'accessible to the public', and museum practice should be evaluated insofar as it serves that end."

But there are other ways to think about the museum's role. O'Hare again (with my emphasis):

"Museums are to put art before people so there is the most, best, engagement between the public and the art. Of course a museum should have a backstock .... But having stuff, other things being equal, especially having more undisplayed work when you already have a lot, does nothing for [that goal]. And keeping stuff in your basement that has vanishingly small probability of ever being shown in your museum ... is not just ineffective but retrograde.

...

"Mindless hoarding of whatever art it happens to have, by any particular museum, is irresponsible trusteeship of a patrimony whose purpose is to be seen and appreciated, not to be possessed. Elevating this hoarding, and refusal to think about how resources can be used, to a moral/ethical professional principle [and now a legal requirement -- DZ] is worse, not only nuts but hostile to everything that really matters about art."

UPDATE: Robin Pogrebin has more in Wednesday's New York Times. She says the bill was introduced late yesterday afternoon; you can read it here. The story notes one open issue under the proposed law:

"Left unresolved is whether museums should include buildings as part of their collections. The bill directs the Board of Regents to study this question further and to submit its findings to the governor and other state officials. Among the questions to consider is whether money from the sale of artworks can be used to care for museum buildings. Matthew Titone, a Democratic assemblyman who represents Staten Island and was a sponsor of the bill, said he believed a historic building ... should be able to benefit from art sales. 'Like any other historical artifact, it is an artifact,' he said. 'Just because it’s big and you can move around in it doesn’t make it any less important than a rifle from the Revolutionary War.'"

Bill Gusky thinks "New York's assemblymen have more important things to attend to than interfering with museums that are just trying to survive."

"I thought we'd get a new church out of the sale. All we got was the sign."

The Maine Antique Digest has more on the lawsuit by a group of nuns who claim they were swindled by an art dealer in the sale of a long-lost Bouguereau. The Art Market Monitor says "after reading it you’ll know so much more about the affair . . . and so much less about the truth of what happened." Antiques and the Arts Online also has a story about the suit up today.

Trust is fleeting

The Indianapolis Museum of Art has put up a searchable database of all the works it held "in trust" for the public . . . until it decided to sell them. (It's actually just a very partial list of such works -- from 2007 forward.)

I'm reminded again of a comment from MCASD's Hugh Davies: "We museum directors can huff and puff about how once we bring these artworks into our collections ... 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 use the proceeds from sale to replenish the collection]."

Gorman Suit

From the AP:

"The estate of the late Navajo artist R.C. Gorman has filed a lawsuit against two Albuquerque art galleries. The suit filed in U.S. District Court charges the galleries are violating trademark and copyright laws by selling [unauthorized] reproduced images and featuring Gorman's signature and silhouette, which are trademarked."

"There is no word yet on when or if Gagosian will get his gold"

This week's New Yorker has a Talk of the Town piece on Chris Burden's seized gold (mentioned earlier here and here).

"Arguing against a straw man to further the strict constructionist view of deaccessioning ..." (UPDATED)

That's The Art Market Monitor's take on Christopher Knight's LA Times piece over the weekend, which discussed an example of "smart" deaccessioning: "this example ... does nothing to address the real issue of recent months–and likely to re-emerge in years to come–how should institutions in extremis deal with the pressing issue of art as an asset."

And, on the subject of institutions in extremis, here's the latest example: "The Museum of Contemporary Art Denver is eliminating four of its 20 full-time positions and trimming benefits."

UPDATE: More on institutions in extremis from Richard Lacayo.

Posner on Tax Deductions for Foreign Charitable Donations

A while back, I took note of a blogospheric debate on the question of the deductibility of donations to benefit foreign charities (including foreign museums). Judge Posner discusses the issue at his blog this week. He's against deductibility, for primarily two reasons: (a) "[a]lthough charitable donations to foreign recipients will ... diminish if the tax deduction is repealed, there is likely to be some substitution in favor of domestic recipients, which will increase welfare in the United States" and (b) "to the extent that total charitable donations fall, tax revenues will rise, which is also a good thing." It's hard to tell to what extent his position depends on the current economic situation, or is general.

It's not?

LA Times art critic Christopher Knight: "Deaccessioning is not a dirty word."

He says "museum deaccessioning is not all that uncommon, ... and when done with care, it can benefit everyone."

Gardnering (UPDATED)

There's a story on the front page of tomorrow's New York Times Arts & Leisure section on Boston's Isabella Stewart Gardner Museum. Two art law issues figure prominently.

The first is the recent ruling by the Supreme Judicial Court of Massachusetts (mentioned earlier here) that "the museum can depart from the strict parameters of Gardner’s prickly will" and go ahead with a proposed expansion. ("According to the will if the arrangement of any of the museum’s holdings changes, the entire collection, the building and the land beneath it must be turned over to Harvard.")

The other is "the lingering wound" of "the dead-of-night theft on March 18, 1990, of three Rembrandts, a Vermeer, a Manet and other works worth several hundred million dollars by two men disguised as police officers":

"Despite a $5 million reward, a mountain of tips that still grows almost weekly and the hiring in 2005 of a new security director ... another March 18 will almost certainly pass without the stolen art’s return. The theft has roiled many imaginations, including that of Ulrich Boser, whose book, 'The Gardner Heist: The True Story of the World’s Largest Unsolved Art Theft,' was published last month by HarperCollins. It examines a web of theories about the case and more or less concludes that the culprits were David Turner, now serving a 38-year prison term for attempting to rob an armored car, and George Reissfelder, a felon who died in 1991."

UPDATE: Geoff Edgers rounds up the links on the Gardner's "big media Sunday."

"The city may not skirt First Amendment protections by applying a definition of commercial speech that better suits its tastes"

The magistrate has recommended a preliminary injunction in favor of the bait shop owner (and against the city) in the Florida fish mural case. Story here.

"Clearly this is a step in the process of re-engaging the academy as a member in good standing" (UPDATED)

The New York Times's Robin Pogrebin has more on the AAMD-National Academy rapprochement. She also breaks this news:

"New York Assemblyman Richard L. Brodsky, a Westchester County Democrat and Brandeis alumnus, has introduced legislation with the State Board of Regents to set deaccessioning guidelines for New York museums. 'This is going to smack us in the face, as more cultural institutions face the consequences of the fiscal crisis,' Mr. Brodsky said. 'We need a reasoned, responsible set of laws.'"

UPDATE: Lee Rosenbaum says the legislation has not yet been introduced.

Deaccessioning on TV

Lee Rosenbaum notes that on this week's Sunday Morning on CBS there's going to be a report on the National Academy and Rose Art Museum controversies. The segment is apparently entitled "The Art of Survival: Deaccessioning Artworks."

Speaking of which, I meant to highlight this quote from the Adrian Ellis piece in The Art Newspaper that I linked to yesterday:

"The straightforward fiat that is the current international norm—no deaccessioning unless you spend proceeds on more art—will either be finessed or ignored under the pressure of financial realities. "

More Lawsuits

Three mentioned in this week's Baer Faxt:

• "Lawsuit # 1: and why we don’t recommend doing authentications. Giulio Urbinati sued Maurice Tuchman for tortious interference alleging his telling a gallery and auction house that 10 Soutine drawings worth $150,000 were not authentic or fake." (More here from Courthouse News Service.)
• "Lawsuit # 2. Robert Scottland has sued Peter Lik Gallery for $1 million alleging he was fired due to anti-semitism."
• "Lawsuit # 3. AXA Art Insurance has a subrogated action (meaning they paid the claim) on behalf of Galleri Faurschou for $250,000 against Dietl Services for allegedly dropping a [sculpture]."

Boone Suit

From Artnet News: "In a lawsuit filed in New York state supreme court on Feb. 9, 2009, [Mary Boone Gallery] seeks to compel Ohio collector Mary Kidder, a trustee of the Columbus Museum of Art, to complete a purchase of a painting by Will Cotton for $32,000."

The obvious problem of the statute of frauds (which the gallery is certainly familiar with) is mentioned.

Yale-Peru News

The Hartford Courant reports that Yale has moved to dismiss Peru's Machu Picchu suit for improper venue. The case was filed in D.C., but Yale says the proper venue is Connecticut.

Today in Fairey Law

Shepard Fairey is an art law course unto himself. On the one hand, there's his copyright lawsuit against the AP, which raises all sorts of interesting and difficult questions. (Lawprof Bruce Boyden is in the midst on what's now a nine-part series of posts about the case.)

And today, the New York Times had a piece about the latest criminal charges against Fairey, headlined "Boston Vandalism Charges Stir Debate." According to the Times, Fairey has pleaded not guilty to one misdemeanor and 13 felony charges so far, and his lawyer says the police are pursuing 19 more counts. Jill Medvedow, director of the Institute of Contemporary Art in Boston, where Fairey currently has a retrospective, is quoted as saying "he’s raising important issues about consent and who decides what we see in public spaces."

"We are entering a period when all but the most privileged and well-connected of art museums are going to come under very real financial constraints"

In The Art Newspaper, Adrian Ellis (of the Ellis Rule) has some thoughts on museums in a time of recession.

AP Responds to Fairey

The AP filed its response to Shepard Fairey's complaint today. You can read it here. It sometimes has a bit of a kitchen-sink feel to it, but, on the whole, it's very well done. Some highlights (with paragraph numbers in parentheses):

• They say Fairey's work "cop[ies] all the distinctive and unequivocally recognizable elements of the [AP] Obama Photo in their entire detail, retaining the heart and essence of" the photo (54). Fairey's work does not "alter any of the distinctive characteristics that make the Obama Photo so striking .... All the recognizable elements remain completely and unmistakably intact ..., including the angle and slant of President Obama's head, and his gaze and expression; the contrast, focus, and depth of field of the photograph; as well as the shadow lines created by the lighting in the original photo" (59). "The unique composition, angle, center of focus, framing, and depth of field, along with the particular reflection of light, shadow lines and contrast, combined with the particular type of lens that [the photographer, Manny] Garcia used, created a unique image" (96).
• In support of the previous point, they include an interesting quote from Garcia that I hadn't seen before, explaining how he got the photo: "I'm on my knees, I'm down low .... And I'm waiting. I'm looking at the eyes. I mean, sure, there's focus, and I want the background to be a little soft. I wanted a shallow depth of field. I'm looking and waiting. I'm waiting for him to turn his head a little bit. I'm just patiently making a few pictures here and there, and I'm just looking for a moment when I think is right, and I'm taking some images as I'm going along, and then it happened. Boom, I was there. I was ready" (97).
  
• They emphasize that "there is no doubt that [Fairey and his entities] are profiting handsomely from their misappropriation" (55). "As just one of myriad examples of [Fairey's] commercialization of the [image]," they point to a sweatshirt (55) and T-shirts (56) bearing the image. They say that "according to published reports," Fairey's profits from the image as of Sept. 2008 exceeded $400,000 (57).
• Paragraph 58 is, I think, the core of the argument: "Fairey could have selected from any one of countless images of President Obama .... Instead, Fairey was drawn to the unique qualities of this particular photograph." "Rather than simply contacting The AP and obtaining permission and a reasonable license, which would have been both easy and relatively inexpensive to do, Fairey proceeded to take all of the unique characteristics of the Obama Photo" (129, my emphasis).
  
• They go after Fairey for "his aggressive and hypocritical enforcement against others of his own intellectual property rights" (60). Fairey's companies "are quick to hunt down artists who they believe unlawfully use Fairey's intellectual property, without apparent regard to the principles of fair use that Plaintiffs conveniently espouse in this case" (112). They even mention one case where "Fairey's counsel ... warned [the recipient] to refrain from publishing any of Fairey's cease-and-desist letters: "As this letter demonstrates, Fairey is hardly a champion of the First Amendment" (121). (They also mention the case I cited yesterday, where "in the three months before the items were withdrawn, the designer made less than $70 for the sale of 16 items.")
  
• They argue that "the rule of law that Fairey argues here essentially would permit someone to take and commercialize a content owner's property without attribution or reasonable compensation" (62).
• On the question of who owns the copyright in the underlying photo, the AP or Garcia, they note that Garcia was hired as "a full-time salaried staff photographer" on March 29, 2006 and the photo was taken in April 2006 (94), so that would seem to settle that. They also indicate that they hold the copyright registration in the photo (96).
  
• They also go after Fairey for "deliberately misrepresent[ing] the source of the Infringing Works in [the] Complaint" (142) in a "misguided effort to argue that Fairey made more substantial changes to the photograph ... than he actually did" (143). (This has to do with the issue I mentioned in the second update to this post.)

Marquette's Bruce Boyden, who's been all over the case (he's up to part five of his six-part series), has some initial observations. He notes that the AP "is playing hardball," and correctly points out that "like Fairey’s complaint, the AP’s counterclaims go well beyond merely stating a cause of action, and attempt to win the battle for positive publicity as well. ... Both sides in this case have their eye not just on the law, but on the ordinary, nonlegal intuitions of the press, the judge, the jury, scholars, and bloggers."

"In the end, as far as [VARA] is concerned, it does not make any difference who owns the property"

The Reno Gazette Journal reports:

"Two San Francisco artists are suing a Gerlach farm-owner claiming he torched La Contessa, a replica of a 16th century Spanish galleon that often appeared at the annual Burning Man festival. Simon Cheffins, an artist, and Greg Jones, a mechanical engineer who helped build it, said in their suit that Mike Stewart, owner of Orient Farms, considered their creation 'junk' and destroyed it on Dec. 5, 2006."

Here is the AP's story. Here is a long story from around the time of the destruction in the San Francisco Bay Guardian.

"It probably would have been worth ten grand if you or I got our hands on that brick"

From the New York Post: "A top Japanese pop artist in town for a big gallery opening was busted the night before his show when cops spotted him drawing a smiley face on the wall of an East Side subway station."

New York magazine's Lane Brown says "Poster Boy probably doesn't need to worry about this guy."

"This case is more addictive than crack"

The Christian Science Monitor's Marjorie Kehe reviews Ulrich Boser's The Gardner Heist: "One of the more intriguing things about the book is its exploration of what really happens to purloined masterpieces. Rather than landing in the private collections of crazed billionaires, most become currency for criminals, entering a twilight netherworld of terrorism, weapons and currency exchanges, and shadowy, major-league crime bosses."

Data Mining

Mark Durney looks at news coverage of art theft.

Compromising

"Three months after the Association of Art Museum Directors imposed severe sanctions on the National Academy Museum for selling two important Hudson River School paintings to pay bills, the two institutions issued a joint statement on Wednesday signaling that a compromise was taking shape." Robin Pogrebin has the details in the New York Times. Richard Lacayo comments.

Rose-colored glasses (UPDATED)

Christopher Knight acknowledges that the "modest level" of attendance at the Rose Art Museum — reportedly about 13,000 to 15,000 annual visitors — "might suggest to some that losing the Rose and its art collection wouldn't be so dire." But, he argues, that "would be a mistaken impression." "Why," he asks, "should the state of the museum's general popularity have anything to do with ... its fate? ... An average rate of about 50 visitors a day might imply that students with course requirements and area art-junkies are the only ones attending. If so, that's OK. With costs covered, the quality of the experience, not the quantity, is what counts." "In fact," he adds, "a degree of obscurity, relatively speaking, is one of the great charms of the Rose's collection."

He's absolutely right that, to a strict anti-deaccessionist, it doesn't matter whether a museum gets 50 visitors a day or 50 visitors a year. If you look at the reasons they give for their position, none has anything to do with the level of popularity of the museum. If "art is not a commodity to be bought and sold like chairs and trucks," then that is so whether five people come to see it a year or five million. If a museum's collection is "held in trust" for the public, then that likewise does not depend on the number of visitors to the museum. And if your concern is the slippery slope -- that if you allow even the 50-visitor-a-year museum to deaccession, all hell will break loose -- popularity is once again irrelevant.

So the strict anti-deaccessionist is untroubled by the fact that Rose gets fewer than 300 visitors a week. But here's another thought experiment. What if Brandeis sold the entire museum -- the building and the collection -- to another institution and they just airlifted it to a new location in the Boston-area, except now, instead of 50 visitors a day they got 5,000? What would be wrong with that? We're back to the Ellis Rule: as long as the transaction does not result in decreased public access to the work, why should we object?

In any event, as I mentioned earlier this week, it seems that we're no longer facing the prospect of "losing the Rose and its art collection." Lately Brandeis has been talking not about closing the Rose, but converting it into a different kind of institution -- "a teaching and exhibition gallery that is even more fully integrated into University life and the academic enterprise." A committee has been formed to consider the possible shapes it might take, and I should think that one of the things they will look at is the museum's "general popularity" -- how many visitors it gets, who those visitors are, etc. If, for example, it turns out that it is largely used by Brandeis students anyway, then maybe turning it into a teaching space wouldn't be such a tragedy after all.

UPDATE: And this Regina Hackett post is a good example of the phenomenon I mentioned the other day of the outrage level not keeping up with the facts on the ground. Her outrage meter is still turned all the way up: she refers to "the degenerate sons and daughters who now run Brandeis," and says "[i]n a time of terrible losses, while wars grind on and the economy continues to fall apart, the Brandeis board stands out for its ignorance and stunning disrespect." (Really? In a time of grinding wars and a falling-apart economy, this decision -- to convert a university museum into a study center and gallery for students and possibly sell a "limited number" of pieces at some point in the future -- stands out for its ignorance?) In the same post, Hackett herself praises the Rose as "a place where students can go to engage with the art of their time." As I've said, it now seems that that will still be the case after the Rose is reconfigured.

"Anything with 'Obey' on it they can't have"

Those who would charge artist Shepard Fairey with hypocrisy (e.g.) have a little more ammunition.

More on Charitable Deductions

From page 1 of this morning's New York Times:

"What the Democratic barons of Congress liked best about President Obama’s audacious budget was his invitation to fill in the details. They have started by erasing some of his. The apparent first casualty is a big one: a proposal to limit tax deductions for the wealthiest 1.2 percent of taxpayers. ... [T]he chairmen of the House and Senate tax-writing committees, Senator Max Baucus of Montana and Representative Charles B. Rangel of New York, have objected to the proposal, citing a potential drop in tax-deductible gifts to charities."

Later, the story adds:

"[Treasury secretary] Geithner staunchly defended the proposed limit, telling the House Budget Committee it would affect few taxpayers and still let them take deductions at the same level as in the Reagan years: a 28 percent rate, nearly twice what most taxpayers can claim. The White House has sought to broaden that defense, emphasizing that the impact on charitable giving is likely to be small and that the proposal is hardly radical. Mr. Geithner has called it 'fair and reasonable.'"

Previous post on this subject here.

"I would never have been able to allow the institution to close in order to take the position of not selling the paintings"

Judd Tully has a piece in the March Art+Auction on the "daunting array of problems, from budget gaps and staff cuts to shrinking corporate and individual patronage and flagging capital campaigns," museums are currently facing.

Naturally, the question of deaccessioning comes up, but a number of AAMD members are on hand to defend their prissy fatwa. The Detroit Institute's Graham Beal repeats his criticisms of the National Academy: "they're just perpetuating a failed institution." (Presumably he would like them to just get on with failing already, so that they then have to relinquish all of their works, not just two.) Dan Monroe of the Peabody Essex Museum says "donors are not going to give works of art to museums with the notion in mind that next year they may turn around and sell them to pay their directors’ salaries." (Presumably, though, they have no objection to selling them to pay for other work.) And SFMOMA's Neal Benezra says "there have got to be other things that can be done first." (But what happens when you try those things and they don't work? Benezra's comment makes an interesting bookend to Bell's: you can't possibly think about deaccessioning until you've tried everything else, but by that point all you're doing is "perpetuating a failed institution," so you can't deaccession then either. Funny how that works.)

Noortman Recovery (UPDATED)

From this morning's New York Times:

"Dutch police have recovered eight paintings, including works by Pierre-Auguste Renoir and Camille Pissarro, that were stolen from the Noortman gallery in Maastricht in 1987 .... Three suspects ... were arrested .... Their identities have not been released. Prosecutors said police were able to find the paintings ... after a recent attempt was made to sell them back to the insurance company that had paid a substantial settlement after the 1987 theft."

Lee Rosenbaum has some thoughts, and points to a "much more detailed, eyebrow-raising report" in The National.

UPDATE: Derek Fincham comments.

No Retrial

UK prosecutors have announced that they will not seek to retry 77-year old artist Maurice Agis on manslaughter charges stemming from a 2006 incident involving his Dreamscape sculpture. "He was found guilty last month of breaching safety rules but the jury was discharged after failing to reach a verdict on the manslaughter charge."

Fairey in Court

But not on the AP fair use case: "Shepard Fairey faces various vandalizing property charges, and is scheduled to appear in Brighton District Court on Tuesday and Roxbury District Court on Wednesday."

Gardner Plans Approved

The Boston Globe's Geoff Edgers reported yesterday that "the Massachusetts Supreme Judicial Court has ruled that the expansion plans of the Isabella Stewart Gardner Museum do not violate restrictions created by the museum's founder in her will. The decision gives the museum permission to remove a carriage house on its Fenway site; create a new entrance, a new building for offices, a gift shop, a cafe, and visitor center; and build a glass walkway between the buildings."

The decision is here. Strictly speaking, Edgers's lede isn't entirely accurate: the holding was not that the plans "do not violate" the terms of Gardner's Will; instead, the court granted approval of what was admittedly a deviation from those terms. The Massachusetts Attorney General was on board with the plan. Opponents of the move (the "Friends of Historic Mission Hill") apparently argued that the museum failed "to consider other alternatives," but the court said "the record ... suggests otherwise": "There were a number of community meetings and public hearings, and the process provided exhaustive scrutiny and review of the [museum]'s proposed project, including consideration of alternatives."

The Globe's Alex Beam wrote about the dispute in January, noting that "both sides acknowledge that [the proposed] scheme cannot proceed under the terms of Gardner's 10-page will, filed in 1924. ... So last month the museum's lawyer ... asked the attorney general to permit a 'reasonable deviation' from Mrs. Gardner's wishes."

"I feel strongly about it. Artists need to be rewarded for their hard work"

The Wall Street Journal had a story yesterday on the state employee whose job it is to track down artists who are owed money under the California Resale Royalty Act.

It's a fun piece, but I just want to point out one thing. The article summarizes the law as follows:

"When a work of art is resold in the state, or by a California resident, the seller must set aside 5% of the gross selling price to pay the artist."

There's some dispute, however, about the part I've highlighted. On its face, the statute does seem to apply -- no matter where a sale takes place -- so long as the seller is a California resident. But in a letter to a state assemblyman around the time the statute was enacted, the then California legislative counsel said that in his opinion the law was constitutional only as applied to sales occurring within California. As far as I'm aware, the question has never been addressed by a court.

Here is a list of artists who are currently owed money.

"I'm somewhat disappointed in both sides by your arguments"

The St. Petersburg Times has a report on yesterday's oral argument before a federal magistrate in the Clearwater fish mural case.

Jonathan Turley has some thoughts.

"Must I obey?"

Christopher Knight notes some irony on a visit to the Shepard Fairey show at the ICA.

Blingless (UPDATED 2X)

Chris Burden's show at Gagosian LA has been postponed. See here for background.

UPDATE: Carol Vogel has more in her Friday "Inside Art" column. Burden tells her: "We were robbed before we even took possession. It’s the guy with the coat and tie who did it — the modern-day robber."

UPDATE 2: More from the New York Post's "Page Six." And New York magazine's Jessica Pressler suggests a solution.

Eye on the Ball (UPDATED)

I feel like something odd has happened to the Rose Museum debate lately.

When it was first announced, everyone thought Brandeis was closing the museum and selling off its entire collection. The lede of the Jan. 26 Boston Globe article that broke the news was: "Rocked by a budget crisis, Brandeis University will close its Rose Art Museum and sell off a 6,000-object collection that includes work by such contemporary masters as Roy Lichtenstein, Andy Warhol, and Nam June Paik." The New York Times story the next day led with "The Massachusetts attorney general’s office said on Tuesday that it planned to conduct a detailed review of Brandeis University’s surprise decision to sell off the entire holdings of its Rose Art Museum"; Rob Storr was quoted as saying "It couldn’t be a worse time to sell expensive art."

The initial wave of outrage took off from there. The best example of the genre was probably Roberta Smith's Feb. 1 New York Times essay, less than a week after the initial announcement. She started from the fact that "the university’s trustees voted unanimously to trash the institution by closing it and auctioning off the 6,000 works in its collection." The message this sent, she argued, was that "art is dispensable."

But since that time, the university has either (a) clarified or (b) backtracked (take your pick) from the original announcement; they now say (1) the Rose will not be closed but instead converted into some sort of research and study center plus gallery (the exact shape of which shall be determined by a faculty-student-trustee committee) and (2) rather than selling off the entire 6,000-work collection, they will sell "a limited number" of pieces "if the need arises in the future." Nothing will be sold in the current market.

It seems to me, though, that the nature of the outrage hasn't kept pace with the facts on the ground. It no longer seems fair to say that Brandeis has "trashed" the arts, that art no longer has a place on campus, etc. As I've noted before, the new version of the Rose sounds very much like what Smith's NYT colleague Holland Cotter has argued a campus art museum should be.

So now the discussion really ought to be about the conversion of the Rose from one sort of institution to another. Why must it remain forever as it was? What's wrong with a research and study center plus gallery? I suppose there might be good reasons to prefer one to the other. But I don't see where outrage comes into it any longer.

UPDATE: Paddy Johnson agrees: "The tone of this conversation should change."

Gold Digging

It seems artist Chris Burden and Gagosian Gallery have gotten tangled up in the Allen Stanford asset freeze. The LA Times's Mike Boehm reports:

"Chris Burden and the Beverly Hills Gagosian Gallery aim to acquire 100 gold bars, combined value about $3.3 million, in the very near future. What's in question is whether they'll cop that bling ... in time for [Burden's] scheduled Saturday opening at the Gagosian Gallery in Beverly Hills. The gold bars originally purchased for the exhibition ... have been frozen under an order by federal authorities. ... Gagosian bought the gold in January from a company owned by R. Allen Stanford, the Texas billionaire accused of perpetrating an $8 billion financial fraud."

Rose Roundup

A USA Today story entitled "Fine arts are in survival mode as funds dry up" includes the following:

"The Philadelphia Museum of Art this week said it would eliminate 30 positions, postpone a Spanish art exhibit and possibly increase admission fees to deal with a 26% drop in its endowment. In Washington, the Smithsonian Institution has frozen all hiring. Brandeis University sparked an uproar when it announced it would close the Rose Art Museum outside Boston and sell works by Andy Warhol, Jasper Johns and others to fill potential budget gaps."

The AP reports on the UMIFA-UPMIFA debate: "Rules governing how nonprofits in [24] states use their endowments date to the 1970s, when most states adopted a uniform law that prohibits withdrawing money from endowments that fall below their 'historic dollar value' — the money given to create the endowment . . . . Since early 2007, 26 states and the District of Columbia have passed laws that give nonprofit organizations more flexibility in using money from endowments that are underwater. Because of the economic meltdown, 12 other states are considering such laws, according to the National Conference of Commissioners of Uniform State Laws." (Felix Salmon wrote about this issue, as it applied to the Brandeis situation, here.)

Finally, the Rose-inspired panel discussion that was scheduled for tonight has been postponed due to snow. A new date will be announced.

"Love it or loathe it, though, 'Blue Mustang' is doing what art is supposed to do — get attention"

The New York Times has a story today on the Denver public art controversy mentioned earlier here.