These Days, Every Potato Counts

Josh Baer: "Solange Herter has sued Christie’s and Lisa Klapstock seeking title to a Calder collage that he alleges was stolen from him (this suit seems awfully small potatoes to come to NY Supreme Court)."

Put a Bow On It

The lawsuit over Claes Oldenburg and Coosje Van Bruggen's "Collar and Bow" sculpture has settled. Mike Boehm has the story here. I mentioned the lawsuit about a year ago here.

The terms of the settlement are confidential, but Oldenburg tells Boehm, "We were not at all penalized in any way, and did not have to pay any money. It wasn’t really our fault that all these things happened. It was very logical that we not be held responsible." He also says that, as part of the settlement, the unfinished sculpture will be destroyed: "It had to be [at Disney Hall] or nowhere else. We select the site, and the sculpture belongs only there. Coosje felt, and I do too, if the site is taken away from us, the sculpture ceases to exist." (Van Bruggen died in January.)

"Opportunistic litigation"

When I first heard about Clint Arthur’s class action lawsuit against LA MOCA last summer, I wrote: "Leaving aside the question of what 'losses' [Arthur] has sustained, wouldn't the class have to be composed of only those buyers who are willing to return their prints in the condition they were received (in order to be eligible for damages under the statute)? And isn't it likely that, at the end of the day, that turns out to be a class of one?"

It turns out I overcounted. A state court judge has dismissed the case on the ground that Arthur himself had not offered the prints back to the museum: "This Court agrees with the defendant that physical tender back of the purchase in dispute is a necessary element of a claim under the Fine Prints Act. ... [Arthur] never did so as he apparently had determined that his purchases were economically beneficial with or without the inclusion of the required certificate."

The Court said the case was a "prime example" of "opportuntistic litigation."

The decision leaves open the theoretical possibility that Arthur could re-file after he tenders – but that won’t get him anywhere because, if he does, the museum will just refund his money, as they’ve been willing to do all along.

So that leaves only his related federal lawsuit, which, for the reasons stated here, I suspect will meet a similar fate (and perhaps worse: there’s a good chance Arthur is going to end up paying Louis Vuitton's legal fees).

More here from Mike Boehm, who's been covering the story for the LA Times. Arthur says he will appeal.

"We're trying to figure out what exactly applies and what has taken place in the intervening 110 years"

The Chicago Tribune: "Ramping up his campaign against the Art Institute of Chicago's pending 50-percent general admission increase, Ald. Ed Burke (14th) is trying to compel the museum to increase its free hours by enforcing an ordinance that is more than 100 years old. Burke said Monday that city lawyers believe the 1891 agreement between the Art Institute and Chicago remains valid .... The 1891 contract ... specified that the Art Institute would offer free admission on Wednesdays, Saturdays and a half-day on Sundays."

Out from under the aegis (UPDATED)

Lee Rosenbaum makes an interesting find in the Montclair Art Museum bookstore.

She also learns that the Hirshhorn is selling three Eakins paintings at Christie's.

Remember: "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."

UPDATE: More on Montclair from James Panero, whose WSJ essay got this whole thing going. He says Montclair director Lora Urbanelli "has been less than transparent ... in her claim that the sales are primarily a result of curatorial housekeeping with only ancillary financial benefits." He doubts the selection "has been the result of pure curatorial decision-making, done outside of financial concerns": "This deaccession was first announced by Montclair, let's remember, in what the museum called a 'financial security plan.' Urbanelli justifies the sales by claiming that she is operating within the guidelines of the [AAMD]. True enough. As I argued in my initial Journal editorial, AAMD's signoff, by allowing a permanent collection to be liquidated for financial considerations, reveals a fundamental flaw in museum governance."

"Topic A, B, C, and D"

The Philadelphia Inquirer's Stephan Salisbury previews this week's annual meeting of the American Association of Museums: "despite the multiplicity of interests and the range of institutional sizes and locations, there will be one thing on everyone's mind. Money." And he includes the following:

"All over, the money problem nags, and one fund-raising gambit that continually tempts museums is selling off art and artifacts from collections. There have been an increasing number of such sales recently, particularly by strapped educational institutions that use their art collections to raise capital funds or to cover operating deficits and shore up endowments.

"Philadelphia became sharply aware of that phenomenon when Thomas Jefferson University sold off its extraordinary collection of Thomas Eakins paintings in 2006 and 2007. Since then, a number of colleges have sold or tried to sell artwork, most notably Brandeis University, which announced in January that it would close its Rose Art Museum and sell the entire collection, valued at roughly $350 million.

"The move, designed to cover an operating deficit and approved by university trustees, immediately set off an uproar. Since then, the university has softened public comment, but the Rose board of overseers issued a statement last week arguing that Brandeis was holding to its goal of sale and closure.

"Rose overseer Meryl Rose, a relative of the museum founders, said in a statement Thursday that trustees 'have been led astray by a disingenuous administration motivated to push an agenda that involves looting the school's culture to simply balance the books.'"

Loose Talk

Richard Lacayo reviews two new books on the 1911 theft of Mona Lisa: "Unfortunately, the authors of both books have decided to pad out their texts by resurrecting an utterly unsubstantiated version of who might have been behind the heist."

Related post here.

"[Sellers] just aren’t into gambling anymore and auctions are no longer a sure thing"

Carol Vogel had a piece in yesterday's New York Times on the increase in private sales (at the expense of auctions): "For many sellers, the driving factor is fear. Fear that their friends will discover they need money. Fear that if a [work] does not sell at auction, it will be considered yesterday’s goods." She reports that "[g]enerally Sotheby’s and Christie’s charge 5 to 10 percent of the purchase price of an artwork," as compared to "25 percent of the first $50,000, 20 percent of the next $50,000 to $1 million and 12 percent of the rest" on auction sales.

"Who Should Own the World's Antiquities?"

Hugh Eakin examines the question in the New York Review of Books.

Montclairity

Lee Rosenbaum heard back from the AAMD on the Montclair deaccessionings. They say everything is fine:

"Placing funds derived from deaccessions in an endowment restricted only to acquisitions is entirely consistent with AAMD policy since the funds generated by such an endowment may only be used for acquisitions. ... To argue that [the sale] conflicts with AAMD policy because the value of this endowment may be part of Montclair's bond covenants is to conflate the meaning of 'purpose.' The purpose of the endowment is not satisfaction of bond covenants; it is support of art acquisitions. That Montclair's restricted endowment for acquisitions may enter into bond covenants does not imply a purpose other than acquisitions."

Lee's not buying it: "It seems clear to me that these disposals, which Montclair tellingly describes as part of its 'Financial Security Plan,' are not only about getting money to acquire art. Their timing ... bespeaks a need to come up quickly with some cash to shore up an endowment, that ... plummeted from $8 million to $6 million since July 1." ( I made a similar point in this post. I don't see how anyone can claim with a straight face that "the purpose" of these sales is to acquire more art.) She thinks the AAMD "needs to rethink this issue. It's another slippery slope that may entice other financially pressed institutions if it's not placed off-limits."

It seems to me the AAMD's response makes a little too much of the distinction between the deaccessioning proceeds "backing the bonds," on the one hand, and being used to "satisfy bond covenants," on the other. (Remember, the question James Panero's WSJ piece raised was: "if museums are forbidden from collateralizing their bonds with the art on their walls, is it appropriate that they should be able to sell the art and use the proceeds to back their bonds?") You could just as easily re-write their response to Lee as follows:

"To argue that Montclair's restricted endowment for acquisitions is being used for a second and improper 'purpose' that conflicts with AAMD policy because the value of this endowment may be used to back the museum's bonds is to conflate the meaning of 'purpose.' The purpose of the endowment is not to back the bonds; it is support of art acquisitions. That Montclair's restricted endowment for acquisitions may back its bonds does not imply a purpose other than acquisitions."

How is that any different from what they're saying about using the proceeds to satisfy the bond covenants?

"What appears to be a misguided lawsuit"

The LA Times had an update today on Clint Arthur's lawsuit against Louis Vuitton over the Murakami prints he bought in Jan. 2008 at the Louis Vuitton boutique that had been set up as part of the "Copyright Murakami" exhibition at L.A. MOCA.

I took a quick look on PACER, and it seems Arthur is doing better in the press than he is in court. In September Louis Vuitton moved to dismiss his first amended complaint (i.e., his second complaint), arguing that, since they had offered him "his choice of a corrected Certificate of Authenticity for each of his [two] prints or a full refund of the purchase price, plus interest, ... which is the relief afforded under" the relevant statute (the California Fine Prints Act), the lawsuit was "a complete sham." (I wondered about just this issue in my initial post on the case last summer.) In December, before deciding the motion, the court granted Arthur permission to file a second amended complaint, but, in doing so, said: "Before [Louis Vuitton] files a motion to dismiss the Second Amended Complaint, which would appear to be a serious challenge to what appears to be a misguided lawsuit, the Court orders the parties to" meet and try to settle the case. It also specifically "admonishe[d] counsel for [Arthur] to consider carefully and take into account the provisions of title 28 U.S.C. § 1927," which allows an award of attorneys' fees for bringing (or prolonging) a frivolous proceeding.

Somehow Arthur didn't take the hint. Settlement discussions failed, he went ahead and filed his second amended complaint (i.e., his third complaint), and in March Louis Vuitton moved to dismiss it, now calling the lawsuit "a gross abuse of the legal system" and asking for "sanctions in the form of its legal fees since the inception of this action." I wouldn't be surprised if they get them. According to the LA Times story, a hearing on the motion is scheduled for Monday.

"There is a good deal of non-malevolent wishful thinking on the part of members of the art world"

Inspired by the news that Italy paid $4.2 million last year to buy a small wooden crucifix that may (or may not be) by Michelangelo, ARCA's Noah Charney offers some thoughts on the value of art: "When it comes down to it, the value of works of art is a combination of authenticity, demand, and rarity—but the key to all components is that value equals perceived authenticity, plus perceived demand, plus perceived rarity. Because of the non-intrinsic value of art, perception is everything."

"A museum dedicated to the artist Henry Varnum Poor won’t open here for years, but already its collection is shrinking"

Eve Kahn has the story in today's New York Times. Apparently, the town of Ramapo, N.Y. paid $1.3 million ("including $500,000 from the state") to buy Poor's home in a neighboring town a couple of years ago. (Poor died in 1970.) But it seems Poor's son, Peter, who is in his 80s, "still owns the contents of [the house], and he has begun selling major pieces or donating them to museums." Peter says the "people who run the town have known from the beginning that I could remove anything at any time. I have letters confirming that." A town official counters that the parties signed an "interim agreement" in 2008 stating that "the parties wish to provide for the contents to remain in the house" -- though obviously it's a long way from "wish" to "promise."

Some Data

As a follow up to their interview with the Art Loss Register's Chris Marinello, the Art Market Monitor offers "a little bonus data," including the top ten stolen artists in the ALR database. No suprise that Picasso is way out in front. Dali is second, Miro third.

"The pie is shrinking"

The Wall Street Journal has a story today on the search by "financially strapped" colleges for ways to find "the cash for urgent needs in a deep recession." It says "colleges posted average investment losses of 23% from July 1 to Nov. 30, and markets have fallen more since. Administrators are bracing for the sharpest drop in giving since 1975 .... Already, institutions are laying off employees, calling off tenure searches and scrapping construction plans."

The story focuses primarily on Connecticut's Trinity College's plan to dip into a restricted endowment, but it also mentions the following:

"Plans to sell artwork have also sparked conflict. Nashville's Fisk University is in litigation over its plans to sell paintings given by Ms. O'Keeffe. In January, Brandeis University ... announced it would close its Rose Art Museum and sell its 7,000-piece collection ... to pay faculty salaries and other expenses. The Rose family, which gave money to establish the museum, is upset by what it calls the potential 'plundering' of the $350 million collection. Brandeis now says it plans to sell 'a limited number' of pieces, if any, and expects to keep the museum open as a 'teaching and exhibition gallery.'"

The Art Market Monitor says the story "illustrates that Brandeis University’s attempt to access the Rose Museum as additional capital to offset the school’s damaged endowment is not an isolated incident. Other schools are not fixating on art but they are looking for assets."

Does eBay reduce looting? (UPDATED)

Derek Fincham points to an article in Archaeology magazine arguing that, contrary to what we might have expected, the rise of eBay has actually reduced antiquities looting. Economist Tyler Cowen summarizes: "Supply is so elastic, and so many fakes are made, that looting is less worthwhile than it used to be." Larry Rothfield says: "On a quick first read, it seems logically persuasive, with some caveats. One is that if eBay is expanding the market then even if fakes bring the prices down relative to what a market with lower level of supply would charge, the increase in the number of potential buyers might drive the price back up, leaving the incentive to loot about what it was before."

UPDATE: Freakonomist Steven Levitt comments.

"Can you legitimize some of the better street art without opening the door to any run of the mill, mindless graffiti?"

More of Richard Lacayo's conversation with ICA Boston director Jill Medvedow. Previous post here.

"When people think of stolen art, you think of famous cases and what ends up in movies. It seems the bulk of stolen items are fairly low value."

The Art Market Monitor interviews Art Loss Register General Counsel Chris Marinello.

What's the AAMD position on deaccessioning to resolve a lawsuit? (UPDATED)

The San Francisco Chronicle has the latest on the complicated Friede family lawsuits. Among other things, "[de Young] museum officials and [John] Friede agreed in March to auction off 76 items like masks, headrests and mortars. They expect to raise about $3.5 million."

UPDATE: Kate Taylor, who wrote about this mess for the New York Times in October, helps sort it out here: "[John] Friede’s brother and half-brother, Robert Friede and Thomas Jaffe, are pressuring him to pay approximately $10 million he owes them from the settlement of their mother’s estate, and against which he offered the collection as collateral. ... [T]he City of San Francisco, which has taken legal action on behalf of the de Young against the three brothers, will allow 76 works to be sold to pay off the debt to Mr. Jaffe and Robert Friede."

Reijtenbagh Race (UPDATED)

Reuters reports that a second lawsuit has been filed involving Dutch businessman Louis Reijtenbagh's art collection -- this one in Amsterdam, by ABN AMRO: "[A] source, who is familiar with the Dutch bank's lawsuit ..., said it was triggered by another court case in New York lodged by JPMorgan Chase & Co ..., which has said Reijtenbagh failed to pay back more than $23 million in loans."

UPDATE: More from MSN News.

"Let's move on from quibbling and have a substantive discussion about the opinions I expressed and the issues I raised"

James Panero responds to Christopher Knight's response to his Wall Street Journal piece on the Montclair Art Museum deaccessioning: "In fact, the only 'hit job' is the one Knight decided to take out on me."

He offers a summary of the "key points" of his argument, including: (1) "The Montclair art museum is engaging in a deaccessioning campaign"; (2) "this campaign is being done (in whole on in part—the ethics of the case are still the same) in order to back the museum's bonds"; and (3) "this raises a greater question--if museums are forbidden from collateralizing their bonds with the art on their walls, is it appropriate that they should be able to sell the art and use the proceeds to back their bonds?"

That seems to me to be a fair, not at all malodorous question.

More on Montclair

On the subject of olfactory testing, let me just add that I always found Carol Vogel's initial story on the Montclair deaccessioning a little odd. It began:

"Like most museums around the country, the Montclair Art Museum ... is grappling with a dwindling endowment (a 25 percent decline since July) and rising operating costs. It has already cut the staff’s hours, reduced the head count to 44 from 57 and slashed total operating expenses by around $500,000."

It then immediately segued into the following:

"But what the institution is doing that few others would dare is starting a capital campaign drive in anticipation of its centennial in 2014. It has also decided to begin aggressively deaccessioning [objects] that have rarely been seen by the public or are no longer consistent with the institution’s mission" (emphasis added).

But from an AAMD point of view, what does one thing have to do with the other? What is the connection between a "dwindling endowment and rising operating costs," on the one hand, and a decision to begin deaccessioning, on the other? If you're just replacing one set of objects with another (as the AAMD rules require you to do), then how does the deaccessioning help address your financial issues?

I wouldn't say my eyes bugged out reading it, but it did strike me as a little curious.

"[A] greedy individual, with the advantage of a legal education and a claimed litigation experience, has initiated and maintained this lawsuit"

The LegalTimes blog reports that the D.C. Circuit has upheld a district court ruling that "[a]n art dealer ... must pay more than $630,000 in attorney fees and expenses to Christie’s for a suit [the district court] judge said only served to harrass the auction house after it refused to sell a painting." The (one-paragraph) decision is here. The district court decision is here.

The facts are a bit, um, unusual. According to the LegalTimes, the plaintiff, a Stanford Law School graduate named Robert Fastov, initially sent Christie’s "a 79-page, single-spaced letter—with hundreds of attachments—threatening litigation" and followed that up with a 225-page complaint. The lower court decision noted that "anyone with a modicum of common sense would have realized [the lawsuit] was without merit."

Another Park West Lawsuit (A Continuing Series)

This one a class action in Federal District Court in Detroit.

The Detroit News has the story.

For previous installments, start here.

Charitable Deductions Update

The New York Times: "President Obama is running into stiff Congressional resistance to his plans to raise money for his ambitious agenda .... The administration’s central revenue proposal — limiting the value of affluent Americans’ itemized deductions, including the one for charitable giving — fell flat in Congress ...."

"More than ever, it is vital to understand the value of art, but the quest to ascertain value is a complex endeavor"

Beverly Schreiber Jacoby on art valuation in the NYLJ [$].

"It's the essay that doesn't pass the smell test" (UPDATED 2X)

My friend Christopher Knight says James Panero's Wall Street Journal story earlier this week on the Montclair Art Museum deaccessioning is "at best misleading and, at worst, a clumsy hit job."

UPDATE: Judith Dobrzynski -- who is "not, as others are, against all deaccessioning" -- is "not sure we know all the facts yet."

UPDATE 2: David Ross: "I hope my former colleagues at the AAMD will act to stop this sale, and to act as quickly and forcefully as it has recently shown itself capable. ... In fact, lenders and bondholders should be prohibited by law from accepting acquisition-specific endowments as security in any form."

Rose to Stay Open (For Now) (UPDATED)

The NYT's Randy Kennedy reports that Brandeis has announced it "will allow its Rose Art Museum to remain open while its fate is being decided": "The decision was seen as a minor victory by opponents of the university’s plans, because it means the Rose will continue, for the time being, to remain subject to the laws and ethical codes that govern public museums and that place restrictions on the sale of works."

UPDATE: Richard Lacayo has more.

Who's more unclean? (UPDATED)

Speaking of Shepard Fairey, he filed his answer to the AP's counterclaims this week. You can read it here. No real surprises. Probably the most interesting thing is a section (the "Fourth Defense," beginning on p. 21) arguing that the AP's claims "are barred ... by the equitable doctrine of unclean hands" because it "claims copyright ownership in, and makes commercial use of, many photographs that consist almost entirely of copyrighted artwork of Fairey and other artists without permission." Then they run through a bunch of artists whose works are depicted in photos included in the AP's image licensing database -- including Jeff Koons, Banksy, George Segal, Kerry James Marshall, Keith Haring, and Ron Mueck. In response, the AP issued a statement (see update) saying that "Mr. Fairey appears to have deliberately omitted from his filing information regarding the newsgathering context in which the various images were generated and in which they are used." To which Fairey's lawyers at the Fair Use Project say: you've missed the point, which is really "very simple: The AP applies an obvious double-standard. It is happy to sell, through its image licensing database, photographs that are really just bare copies of artists' work, yet it condemns Fairey for using an AP photograph in a far more creative, transformative, expressive and defensible way."

Bruce Boyden may have to add a tenth post to his series on the case.

UPDATE: A lot of confusion out there about this latest filing. Techdirt says "Fairey has filed new counterclaims against the AP," which isn't true. The LA Times's David Ng says Fairey claims "the AP itself violated copyright laws when it used a photo of the artist's 'Hope' poster without getting permission" and also "accuse[s] the AP of similarly infringing the copyright on works by Jeff Koons, Banksy Keith Haring and George Segal." That's also not exactly right -- as Fairey lawyer Anthony Falzone explains, "We're not alleging The AP's photographs infringe anyone's rights .... We simply contend The AP should have to play by a consistent set of rules. ... If The AP's bare copies of other artists' work are protected by fair use, then Fairey's significantly more transformative and expressive work has to be, too" (emphasis added) -- but it's easy to see how people are getting that impression: by labeling the defense an "unclean hands" defense, Fairey by definition suggests that the AP has done something wrong. I suppose it's really more of a hypocrisy defense: a claim that the AP is complaining about something that they do themselves.

"In the case of graffiti, the ICA gave Shepard many sanctioned places in which to do outdoor work, so he didn't need to deface public property"

Richard Lacayo has a little Q&A up with Jill Medvedow, the director of Boston's Institute of Contemporary Arts, which currently is hosting a Shepard Fairey show. Naturally some legal issues come up. She says Fairey's arrest on the night of the opening "was a highly choreographed event for maximum drama" -- "Shepard could have been easily found by the police before that night." And in response to the question how she deals "with the question of whether you're encouraging vandalism by legitimizing work that one way or another ends up on somebody else's property," she responds: "People have said 'How would you like it if I put grafitti on your house or on the side of your museum?' I would not like it at all. But ... [w]hat I think links the two areas in which Shepard is in court, the vandalism charges and the lawsuit with Associated Press, is the issue of consent. Who gets to decide what's in the public space? Who gets to decide what is a work of art?"

"The AAMD sees no problem with the way we are handling this situation" (UPDATED 2X)

A number of people emailed me about this story by James Panero in today's Wall Street Journal. It seems there is more to the Montclair Art Museum deaccessioning than was originally reported.

ArtsJournal linked to the story using the following headline: "Via AAMD Loophole, Another Museum Monetizes Collection."

The initial report by Carol Vogel in her NYT "Inside Art" column a couple of Fridays ago noted that "deaccessioning is a hot-button topic these days," but immediately added that "officials at Montclair were quick to say that the proceeds from any sale of art would go only toward purchasing other works, a practice that is consistent with the [AAMD] policy." In other words, nothing to see here, move along.

But Panero says that, in reality, it's "another sorry example of an institution cashing out on art in the public trust" -- that what's really going on is the museum is "exploiting" a "dangerous gap in the [AAMD] guidelines." More specifically, "while museums are forbidden from ... using the value of their art as collateral for a loan, nothing in the AAM or AAMD rules explicitly prevents museums from selling their art ..., earmarking that revenue for future acquisitions, and then using the endowment money raised from the sales to back their loans." In this way, "museums avoid the censure of AAMD while still underwriting loans that may go to general operating expenses or the next vanity expansion project."

Panero says that's exactly what's happening here: "In 2001, the museum undertook a massive $14.5 million expansion that ... saddled it with debt. Now, as its overall endowment has dipped 25%, ... the museum risks not having enough cash on hand to back its loans. That's where this deaccession comes in -- to raise cash to satisfy the requirements of its bank bonds." "What's most troubling," he adds, "is that nothing [in the AAMD rules] is designed to stop it, even though Montclair is liquidating art in its permanent collection to raise the aggregate collateral for its loans." The museum has "found another way to monetize its collection without consequence, exposing another failure in the way our arts institutions police themselves."

Sergio Muñoz Sarmiento says the story "serves only to strengthen [my] claim that museums will find other creative means to sidestep the strict [AAMD] regulations." I think it also nicely makes Adrian Ellis's point that "the preoccupation with the application of proceeds from sales - more art 'good'; everything else 'bad' -" ends up blinding us to other, more important questions, including (in Adrian's view) where are the works going? (In the Montclair case, "some" of the works will be sold at Christie’s spring auctions.) I think the real question here, as in all similar cases, is: Taking into account all the relevant circumstances, including what the museum hopes to achieve through the sale and what the realistic alternatives are, is the sale a good idea? Or, as Christopher Knight would have it, (1) was the decision made with forethought and care and (2) is the collection being used wisely and for the benefit of the American public?

UPDATE: Lee Rosenbaum thinks the AAMD guidelines do prohibit "this gambit." She's waiting for a response from AAMD officials.

UPDATE 2: Not unrelated: Jason Kaufman in The Art Newspaper: Troubles deepen for museums: layoffs, budget cuts and cancelled shows. (The subhed: No end in sight as pain continues for institutions across the country.)

"A load of hooey"

Noah Charney reviews The Crimes of Paris: A True Story of Murder, Theft, and Detection: "While the account of the [1911] theft and recovery of the Mona Lisa is accurate and reasonably well-written, the supposed true crime conspiracy that the authors have uncovered and present in their work ... is a load of hooey. The sole source of this conspiracy, a 1932 article in The Saturday Evening Post by American journalist Karl Decker, was dismissed decades ago by all scholars worthy of the name as a wholesale invention—and one so outrageous that it is difficult to understand how anyone could believe it to be true."

Less Lex Situs

Derek Fincham: How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property (32 Columbia Journal of Law and the Arts 111).

Further Fairey (UPDATED)

10 new felony vandalism counts in Boston for Shepard Fairey. The AP says that "if convicted, Fairey faces up to three years in state prison."

UPDATE: Richard Lacayo has some thoughts.

"The German government stands by its historical and moral responsibility"

Germany has rejected Sir Norman Rosenthal's call for an end to Nazi restitution cases.

"I could be a really bad photographer, but in that case why did you use 30 of my pictures?" (UPDATED)

While I was defending the honor of Art in America's new editorial team last week, The Art Newspaper had a report on the status of the Richard Prince copyright lawsuit. Prince and Gagosian have answered Cariou's complaint, and now it's on to discovery. Cariou is quoted as saying "he has already received a 'settlement proposal' that he would consider for a 'just' amount. 'But it’s a big number we’re talking about,' he says."

UPDATE: Photo Editor Rob Haggart says the responses include "the standard 'these images are not that distinctive' and 'I’ve made them better'" claims, and he points out that Shepard Fairey "is doing the same thing with the Mannie Garcia image he used for his Obama poster .... But, of course [Fairey] also said he sorted through thousands of images to find the one he wanted to copy for the poster so that doesn’t really sound like 'any image will do' now does it." He's predicting settlement.

Hot Pursuit

One thing I did not mention in my reply to Christopher Knight's response to my Art in America piece was his reference, in an effort to show the shortcomings of my position, to the idea of a museum using sales proceeds to pay for "a boffo night out with your chums on the board." But the quoted language was not mine. It was from Adrian Ellis, who responded at the LA Times blog (scroll down to fourth comment):

"In hot and ad hominem pursuit of Donn Zaretsky, Christopher Knight refers twice and caustically to a comment that I made about how the proceeds of deaccessioning might be used - 'even [for] a boffo night out with your chums on the board'. I think that any fair-minded reader of the short posting from which this comment was culled ... will realize that I was using this example to try to show vividly that the preoccupation with the application of proceeds from sales - more art 'good'; everything else 'bad' - has blind-sided us to the issue of the fate of works of art deaccessioned.

"I have argued ... that the primary concerns of the museum profession should be the conservational standards met by the buyer and the extent of public access to which the buyer will commit in advance of the sale. These should be equal to or greater than those of the museum that is deaccessioning the work. If there is not a commitment by the buyer to meeting these conditions, and in precise and explicit terms that can be policed by AAMD or another recognized body, then I would argue that the disposal should be censured, irrespective of what happens to the proceeds."

(Knight responds -- see the fifth comment -- but not on the substance.)

So, far from calling for "deregulation," Ellis is calling for a different kind of regulation, one that is arguably stronger than the current regime. Under the current rules, there is a whole swath of transactions that receive no scrutiny at all: all you have to do is say the proceeds will be used for future acquisitions and you're in the clear. Under Ellis's "proposal of a tightly circumscribed alternative approach to the current AAMD and ICOM positions," all museum sales would be "regulated" to ensure the public interest is properly served. Senator Gramm he is not.

Lee Rosenbaum also has a rebuttal to my piece up, but the funny thing is, though she sets out to "debunk ... [my] two Big Ideas," on what she calls "the bigger of Donn's Big Ideas," which she paraphrases as . . .

"the argument that museums hold work in public trust is inconsistent with the widely accepted principle that it's okay to sell art for some purposes (i.e., to purchase other art; to care for the collection)" . . .

she agrees with me. I have tried to show over and over again (see here for a recent example) that the AAMD/AAM approach is internally inconsistent: if it is true, as AAM President Ford Bell likes to say, that the reason works cannot be sold to pay for operating expenses is that they are "held in trust" for future generations, then museums should not be selling them for any purpose, including to buy more art. Lee's response to that is: Yeah, you're right, they shouldn't be selling works for any purpose, let's actually tighten the rules to prevent them from doing so ("To me, this deaccession-disconnect argues instead for a significant TIGHTENING of standards: As I've often stated, the only works that should be sold from the public domain are those that truly don't belong there"). That's certainly one approach. Either the works are held in the public trust and shouldn't be sold, or they are not, in which case why privilege one use of proceeds over all possible others? Much of my writing on this subject over the last few months has been aimed simply at getting people to focus on this inconsistency. Lee, perhaps alone among the anti-deaccessionists, at least acknowledges that the inconsistency is there.

Having said that, let me turn briefly to Lee's discussion of the other of my two Big Ideas (the "less big Big Idea"?), which she paraphrases as: "If museum collections are, in fact, held in public trust, then there's no damage to that trust if the works sold by museums are purchased by other museums." Here Lee trots out an argument she's used before, but which I've never really understood. She says that the sold works "are already our stuff. Americans for whom museums hold these works in trust shouldn't have to pay for them twice." The argument is that, when Museum A sells a work to Museum B, "we" (Americans) have paid for the work twice: once when Museum A acquired it, and a second time when Museum B buys it.

But is that really true? Put aside the question whether this ownership principle applies to all non-profits, or just to museums (do "we" own everything in every school and hospital and church and other non-profit by virtue of the tax deductions that help support them?), and go along with the assumption that everything every museum owns is "our stuff." Suppose Museum A has two paintings and has $100 in the bank (it's a very small museum). And suppose Museum B has one painting and $200 in the bank. So "we," "the public," "Americans," have three paintings (Museum A's two plus Museum B's one) and $300 ($100 from Museum A and $200 from Museum B). That's our stuff. Now Museum A sells one of its paintings to Museum B for $100. That leaves Museum A with one painting and now $200 in the bank, and Museum B now with two paintings but just $100 in the bank. What do "we" have now? Three paintings and $300. Just as before. It's like moving money from one of my bank accounts (called, say, the "National Academy Account") to another of my accounts (called, say, the "Crystal Bridges Account"). I just don't see how "Americans" are harmed when a work moves from one of their museums to another.

Sustainability

For those looking for a "sustained argument" for loosening the rules against deaccessioning, let me recommend Chapter 3 of economist Bruno Frey's Arts & Economics. The chapter is titled "For Art's Sake - Open Up the Vaults," and it begins:

"Museums keep a substantial share of their holdings hidden in storage rooms. Why is that so, and what can be done to overcome this situation? . . . Many paintings belonging to art museums … are never exhibited to the public …. While … exact data are difficult to get, it is safe to say that most museums exhibit at best half of their total holdings, and often not more than one quarter of their stock. The Prado in Madrid is a good illustration of this phenomenon. Only 1,781 out of the 19,056 objects the museum listed within its holdings in summer 1992 - i.e. not even 10 percent - were on permanent display. What is kept in storage rooms therefore constitutes a significant part of a museum's holdings."

He then says:

"To an economist … the question immediately arises as to why the stock rarely or never displayed is not sold and the receipts used for buying paintings more suitable for the existing collection or for other important purposes of the museum such as: restoring dilapidated paintings, extending the showroom capacity, increasing visiting hours or improving security and fire precautions. Such an alternative use of museum holdings would be to the benefit of all art lovers" (my emphasis).

He then moves on to a discussion of the opportunity costs of a museum's holdings: "At a (real) rate of interest of 5 percent per year for instance, a painting held by a museum and worth one million Euros means a steady flow of income of 50,000 Euros forgone each year, i.e. which could have been used in a different way. Thus, the painting under consideration could be 'transformed' into a permanent flow of 50,000 Euros, which could be spent on hiring more guards, providing more security against theft and fire, undertaking conservation and necessary repairs, organizing exhibitions, conducting art historic research or improving the working conditions for the staff and the viewing pleasure of visitors." And he adds: "Obviously, these opportunity costs are particularly acute for those paintings which are kept in storage rooms and never or rarely shown to anybody."

He then looks at some possible reasons why museums ignore these opportunity costs, one of which is the fear that the paintings sold will be lost to the art community. To which he responds (echoing a point I've made here several times): Often, "deaccessioning by one museum means that the painting is acquired by another museum, so that it is … difficult to understand why a loss should be involved. On the contrary, the museum acquiring the painting is more likely to prominently exhibit the painting bought than to abscond it to its storage rooms so that the public's exposure to art increases."

He concludes by proposing that museums be given "complete budget sovereignty, so that they can sell paintings and use the corresponding receipts freely for buying other art …, for restoration, for exhibitions etc., i.e. for any other purpose the directorate sees fit." "What matters," he says, "is that the persons responsible for public museums be given the necessary incentives and independence to employ the resources and possibilities at their disposition more freely."

I also recommend Michael O'Hare's Capitalizing Art Museum Collections: Awkward for Museums But Good for Art and for Society. From the abstract: "Capitalizing collections is practical and would lead to a variety of beneficial changes in museum practice, on the criterion of inducing 'more, better engagement with more art by more people.'"

Imperious Waving (UPDATED)

George Wallace notices a distinct lack of engagement with the actual issues in Christopher Knight's response to my Art in America piece yesterday:

"Christopher Knight's art writing belongs on the very short list of things that the much-abused Los Angeles Times still has left to be proud of these days. That said, it is a disappointment to see that he has himself largely succumbed to argumentum ad strawmanum when he isn't stooping to outright argumentum ad hominem, dismissing both Zaretsky ('Such is the nature of routine blogging') and Art in America ('The magazine had a shakeup in its editorial ranks last year, but if this is the best they can do . . . , it was apparently a wasted effort') with little more than an imperious wave rather than really engaging his opponent on substance."

He also offers what I think is a reasonable summary of the competing positions:

"Zaretsky -- who can take some satisfaction, I suppose, from Knight's suggestion that there is a faction of 'Zaretskians' among the managers of the nation's museums -- objects less to the concept of 'the public trust' than to that concept being used as a great 'Thou Shalt Not' to shackle all but a very limited class of deaccessions and dispositions. Where Zaretsky sees imprisonment and an unreasonable restriction of curatorial freedom of choice, Knight and AAMD see a sort of protective custody, a binding of administrators' hands for their own good, to save them from their own worst instincts, or to serve a perceived Greater Good. Zaretsky would trust museum managers to exercise sound judgment, Knight and company would prefer that judgment to be exercised only within strictly proscribed limits" (emphasis added).

I also liked this very sensible comment from Pamela Logan of the Kham Aid Foundation:

"The question of whether it is ethical or allowable to deaccess a work of art should be a private matter between the museum and the donor who contributed the piece. Wise donors with strong feelings against deaccession should insist on a donation agreement that forbids it. Wise museums that want to preserve a parachute to be used in time of emergency should be courageous enough to ask donors to grant them flexibility. Museum boards who spend funds frivolously should be subject to censure, dismissal, or prosecution using the existing checks and balances that govern all nonprofits."

And for another, more positive review of the Art in America piece, see The Deaccessioning Blog.

And the always-measured Tyler ("The art can be the art anywhere. It can be seen anywhere") Green jumps in primarily (1) to argue that "held in the public trust" does not equal "cannot be sold" (although what he actually says is that Knight "does not equivocate 'public trust' with 'cannot be sold,'" which is kind of funny; in any event, he should tell it to AAM President Ford Bell) and (2) to defend Knight's strange charge that the chairman of LA MOCA blithely spent money the museum didn't have because he figured that "the museum could just peel off a masterpiece from its collection and save the day" (I'm aware that he discussed that possibility after the fact -- I quoted it on the blog -- but that's a far cry from accusing him of overspending because he "figured" he could sell work to cover the deficit, which of course was not what ended up happening at all). He also wonders if I have "any clients that are considering a deaccessioning." I do not.

UPDATE: Derek Fincham says Knight's criticisms were "lazy":

"If you want to have a serious discussion on the merits of a policy, then you should probably avoid distorting the opposing viewpoint, provide some evidence for your position, or at least take the time to read your opponnent's views. In this case, painting Zaretsky with a broad 'deregulation' brush, and revealing a real distaste for lawyers generally cuts against any broader point Knight may have had."

He adds:

"That appears to be a real shame in this case as Zaretsky probably doesn't disagree too much with Knight's core philosophy on collections management. It seems to me Zaretsky points out the flaws and inherent inconsistencies in the stated policy. ... That seems to me to be a very valuable argument, and an important role that few others have done. He goes on to discuss the prominent deaccession examples of recent years, including the National Academy to avoid closing its doors, or Universities want to sell works because of substantial drops in endowments, or Thomas Jefferson decides to sell its $68 million work because nobody visits it, or a universal museum attempts to shift gears because of a declining local economy. Now we can challenge these stated views, and certainly should maintain healthy skepticism of these attempts to deaccession works. However the current rules prevent and even preclude this kind of debate."

Dark Knight

LA Times art critic Christopher Knight was not impressed with my Art in America piece on deaccessioning. He responds here. The strange thing is that his ultimate conclusions -- that "when such sales inevitably happen, they need to be done with forethought and care" and "the American public trusts their tax-subsidized museum professionals to use their art collections wisely and for their benefit" -- don't seem that different from my own. A few observations in reply.

Knight says he was "stopped cold" by my assertion that the anti-deaccessionist position is "usually justified on the ground that works in museum collections are held 'in trust' for the public and therefore cannot be sold." He claims never to have "heard that 'usual justification' before."

Really?

Here is AAM President Ford Bell, in a letter to the editor of The New York Times, a couple of weeks ago:

"But it is important 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. 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."

Here is an earlier version of the same thing:

"An analogy we use is that allowing a museum to trade its collection to cover operating debts would be like allowing a financial fiduciary, such as a bank, to raid assets it holds in a trust to cover a hole in its own balance sheet. This would be inconceivable. It should be equally inconceivable for a museum to raid the assets placed in trust with it."

Here is Jori Finkel in the New York Times:

"But several directors drew a much harder line, noting that museums get tax-deductible donations of art and cash to safeguard art collections for the public. Selling off any holdings for profit would thus betray that trust."

Here is chief-of-deaccession-police Lee Rosenbaum:

"The tax exemptions that are granted to nonprofit institutions and the tax deductions allowed to donors are the way by which the American public subsidizes museums and their acquisitions. The objects are held in trust for us by these nonprofit institutions."

And here is one prominent museum director (who acknowledges the usual justification in the course of calling it "B.S."):

"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."

I could go on, but I think it's fair to say that if Knight has "never heard" the "held in trust" argument against deaccessioning, he hasn't been following the debate that closely.

He also makes the bizarre claim that "one prime reason" for LA MOCA's financial problems is that the chairman of their board "is a Zaretskian who figured that if MOCA was spending money it didn't have, it really didn't matter: When crisis hit and the time came to pay the piper, the museum could just peel off a masterpiece from its collection and save the day." Is there any evidence at all for that accusation?

A final point for now. Knight complains that (until the Art in America piece) I "never made a sustained argument" explaining my position. I thought these arguments (1, 2, 3) were reasonably sustained, at least as blog posts go. But, more importantly, I do want to emphasize that what I see myself as having been doing during this debate is pointing out the inconsistencies in, the hypocrisy that is built into, the conventional art world view on deaccessioning (namely that it is perfectly fine when the proceeds are used to buy more art, but absolutely forbidden for all other purposes). I have not tried to sketch out (as Adrian Ellis has done) an affirmative case in favor of more deaccessioning. The case for deaccessioning makes itself, in the individual circumstances in which the question arises:

A museum wants to sell a couple of works to avoid shutting down (the National Academy).

A university wants to sell some work because of a $200 million dip in its endowment (Brandeis and the Rose).

A medical school decides that it can think of better uses for $68 million than having it hang on the wall in a little-visited gallery (Jefferson University).

And so on.

We may or may not think sales were justified in each of those cases. But that's a discussion the anti-deaccessioning rules prevent from happening. All I have been suggesting, instead, is that each proposed sale be analyzed on its own merits, rather than assuming that it's always wrong, no matter the circumstances. To be sure, museum sales should always be "done with forethought and care," but I am not at all afraid to "trust [our] tax-subsidized museum professionals to use their art collections wisely and for [our] benefit."

"Most art theft isn't committed by discriminating Pierce Brosnan types with a deep appreciation for Claude Monet or René Magritte"

The Broward-Palm Beach New Times has a lengthy story on the art theft mentioned here: The Trail From a $6 Million French Art Heist Ends in Suburban South Florida.

Lawsuit over art-backed loans

Reuters: "JPMorgan ... has sued Dutch businessman Louis Reijtenbagh [in State Supreme Court in Manhattan], saying he failed to pay back more than $23 million in loans and that he unlawfully moved valuable artwork by Rembrandt, Picasso and other artists out of the United States that had been put up as collateral."

"Without a meaningful debate on those issues, we’re left with shrieking and moralizing that does little to bolster the public trust"

The Art Market Monitor points out another problem with the "public trust" argument against deaccessioning:

"If museums are a public trust for future generations, why are they allowed to duplicate missions and compete for works? As we’ve recently seen in Los Angeles, there is wasteful competition for donor funding, duplication of infrastructure and the failure of museum trustees to live up to their responsibilities all over. If art is held in trust, museums should be rationalized for the best access of the public."

Satellite Salander Suit

Josh Baer:

"Joseph Carroll Ltd is suing Craig Baker alleging that Baker’s claims to ownership/title of a 1943 John Graham painting that Carroll bought ... from the Salander O’Reilly Gallery ... have blocked his ability to sell the work. According to the papers filed, the work was on consignment to Salander from Baker who missed the deadline to file a claim in bankruptcy court."

"Tie goes to the runner"

In today's New York Law Journal, former New York Times vice chairman Jim Goodale has a unique take [$] on the Shepard Fairey-AP dispute.

UBS Shuts Down Art Advisory Business

The AP reports that UBS has "closed its 'art banking' department, which helps rich clients buy and build collections. The department was created in 1998 and provided customers with research on prices and artists, and consulted them on estimates, transport, storage, restoration and inheritance of art works."

Felix Salmon says the announcement "is pretty shocking — but also a little heartening, to those of us who love art for its intrinsic rather than its monetary value." The Art Market Monitor has some thoughts in response.

"The precedent that it would have set for public art would have been terrible -- we had to fight it"

On the occasion of a gallery show of his work opening tonight, the LA Times profiles mural artist Kent Twitchell, whose six-story high "Ed Ruscha Monument" was painted over in 2006, leading to a lawsuit against the federal government (among others), which settled for $1.1 million, "believed to be the largest amount ever awarded under [VARA]." The paper says "negotiations have begun to re-create 'Ed Ruscha' on a side of the [L.A. Mart Design Center]."

For more on the settlement, see here.

Debating Deaccessioning

I have a piece on deaccessioning in the new Art in America.

"Charities fight tax change"

The Politico's Ben Smith reports that "the White House heard in two meetings [yesterday] from non-profit officials opposed to lowering the charity deduction for the wealthy, a move they fear would lower contributions."