Tell me again about the "public trust"

Artnet reports that a Nov. 24 sale at Christie's "included a group of 15 Isfahan carpets from the collection of the Corcoran Gallery of Art, which received them in a 1925 bequest from Montana senator William Andrews Clark .... No word from the museum at press time regarding the sale, but this particular deaccession seems to have prompted few protests, if any."

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."

"They have focused much more on the overseas market, and particularly the American market, since about 2000"

The Wall Street Journal: "Iconic cultural institutions like the Tate, the Mariinsky and the Louvre all have set up American or international 'friends groups' in the last decade, in part to cash in on donations coming from the U.S. and to allow American supporters to take advantage of domestic tax write-offs."

Some previous thoughts on these "friends" groups here.

"To think that a majority of people voted to part with a Tiffany window is a miracle"

The Boston Globe had a story yesterday entitled "Putting its mission before its treasure." It's about a financially-struggling Vermont church that has decided to sell its "prized asset," a Tiffany window depicting St. John the Divine:

"The church considered selling its pews; it had an appraiser value its bell. It also has three other stained-glass windows that church records say are Tiffany designs but which are not signed and are difficult to authenticate. The St. John window with its Tiffany Studios insignia was by far the most valuable and seemed the logical choice."

My question to the Deaccession Police is: is this okay? Isn't the window held in the "public trust"? What about the pews and the bell? The church receives the same tax benefits that, according to the anti-deaccessionists, cause works owned by museums to be held in the public trust (and therefore prevent their sale). Isn't this going to cause other churches across the country to start selling off their stained-glass windows just to feed the homeless?

What gives the First Baptist Church of Brattleboro the right to sell off assets in order to serve its larger mission but prevents the National Academy of Art, or Brandeis University, from doing the same thing?

How exactly do works of art come to be held in the public trust? What is the mechanism? If it's not the tax benefits, what is it?

"Couple charged with trying to sell fake Warhols"

Story here.

Greg Allen says this is "officially the best Fake Warhol In Utah story since the artist sent an impostor to deliver a lecture at the University of Utah in 1968."

Christie's Suit

Courthouse News Service: "An Indian art dealer says it paid Christie's more than $800,000 for 29 pieces of art, which the auction house failed to deliver and now is threatening to sell to someone else."

More from The Art Market Monitor, including a statement from Christie's ("Christie’s finds this complaint completely meritless. We have been seeking to recover a significant debt from an Osian-related party for more than one year") and a link to the complaint.

"Charges Dropped Against Nude Met Model"

Details here. Background here.

"I’m not sure that many people realize the collection will be reinstalled in galleries of the same size, the same shape, the same relationship ...

... and in exactly the same way it is hung in Merion." That's Barnes Foundation executive director and president Derek Gilman, in this Art & Auction piece by Judd Tully.

No Longer Looking Around

Richard Lacayo, on of my favorite art bloggers, is calling it quits.

Art and Money

A new paper from Goetzmann, Renneboog & Spaenjers. From the abstract:

"This paper investigates the impact of equity markets and top incomes on art prices. ... [W]e demonstrate that ... equity market returns have a significant impact on the price level in the art market. Over a shorter time frame, we also find empirical evidence that an increase in income inequality may lead to higher prices for art .... Finally, the results of Johansen cointegration tests strongly suggest the existence of a long-term relation between top incomes and art prices."

Schrock and Roll (UPDATED)

Clarida and Bernstein on the recent Schrock decision (mentioned earlier here):

"[T]he cases appeared to diverge as to three fundamental questions: (1) Is a photograph of a copyrighted work a derivative work at all? (the 'Definition Question'); (2) Must such a derivative work exhibit a higher level of originality in order to qualify for copyright protection? (the 'Originality Question'); (3) Must the creator of such a derivative work obtain separate specific permission to register his or her copyright, over and above the permission required to create the derivative work? (the 'Permission Question').

"The Seventh Circuit explicitly declines to answer the first of these questions in its Schrock reversal, but by clearly answering 'no' to the other two, the new ruling greatly reduces the significance of the Definition Question. If a derivative work need not meet a higher originality threshold and need not obtain separate permission to register, it really should not matter very much, in most cases, whether the photo at issue is deemed a derivative work of its copyrighted subject or not."

UPDATE: More from the folks at the Harvard Journal of Law & Technology.

"Visual artists are conflicted as to where they stand in relation to copyright laws"

Sergio Muñoz Sarmiento: What Do Artists Want?

"An amazing story on many levels"

Judith Dobrzynski on the most stolen work of art in recorded history.

"The jury ... took less than 40 minutes, including lunch"

The Houston Chronicle: "A jury Monday disappointed the daughter of philanthropist and oilman Alfred Glassell Jr. by ruling that he was neither incapacitated nor unduly influenced when he gave the bulk of his half-billion dollar estate to charity [including the Museum of Fine Arts, Houston] and not to her."

Earlier post here.

"It seems likely most … consignors whose possessions were sold but who have yet to receive payment … are going to come out ... empty-handed"

The Toronto Globe and Mail on the bankruptcy of Toronto-based Ritchies Auctioneers.

Another Museum Embezzlement

The Delaware News Journal: "A former Winterthur Museum employee voluntarily turned himself into Delaware State Police ... after a theft investigation revealed he had spent more than $100,000 of the museum's money."

"What makes this theft any different from a typical 'smash and grab' job?"

Art Theft Central's Mark Durney has more on last week's Munch theft in Oslo.

"The moralizing is a bit much"

Jerry Saltz on the New Museum in this week's New York magazine.

More from Saltz here.

Related post here.

A Couple of Deaccessioning Notes

Via The Deaccessioning Blog. First, it seems Assemblyman Brodsky (of the Brodsky Bill) recently came and talked to the Art Law Society at Cardozo Law School. You can read an account of the visit here. The Deaccessioning Blog's take: "Reading Brodsky's thoughts gives one hope that he's finally realizing the economic severity faced by museums and art institutions, and if the Brodsky bill restricts the use of funds acquired through deaccessioning to only the purchase of new works, museums will face dire financial situations which will force them to lay-off staff in droves, not to mention lower the academic and aesthetic design and implementation of their planned exhibitions."

Second, there is this quote, from a Time magazine report on some deaccessioning at University College London: "To be sure, not everything in a museum's collection is worth keeping, let alone putting on display."

More Munch Thievery

From the AP: "Thieves stole a valuable artwork by Edvard Munch from an Oslo art dealer in the latest of a string of art heists targeting work by the famous Norwegian expressionist, police said Friday. One or more thieves stole [the lithograph] from Nyborgs Kunst in downtown Oslo after smashing one of the dealership's windows with a rock."

"For the latecomers, an outline of the high points thus far"

Artnet News summarizes the New Museum "brouhaha" to date.

Against the "purity police" (UPDATED)

Terrific post by Regina Hackett on the New Museum controversy:

"Purity police chief Tyler Green would prefer that we not see this show. I don't know Dakis Joannou and am not likely to be invited to his house. I do know about his collection and am grateful it will be on view to the public.

"About those ethical problems: I have them with museums featuring trustee collections only when the collections are mediocre. ... Joannou's collection is remarkable. I want to see it and don't care whose board he's on.

"The hip bone's connected to the thigh bone. O, the horror. Trustees know collectors who know artists who know dealers who know museum curators. ...

"There is no rule against museums devoting shows to the work of a single collector. If there were, that rule would be made to be broken. Yes, the rich and powerful are involved in museums. Those for whom this information is a shock and an outrage are too pure (and rigid) to live in the world."

And more from The Art Market Monitor here.

UPDATE: Paddy Johnson has "the sinking feeling this story is turning into a New York Museum Director witch hunt": "I can’t help but feel that the ultimate goal of constructive criticism is getting lost when there are bloggers seeking out scandal we’re not even sure exists." And in the comments, Peter Zimmerman adds: "I don’t see the weight of the ethical charge that Tyler Green is championing. I understand that there are complications with the insider-ness– and yes, that really should have been and should be addressed. Even so, it’s as if Green is acting like a warrior on a vendetta against the NY institution, and I’m not sure where it’s coming from. I just hope that the sensationalism of some of the writing about this subject tones down. And yeah, I’m excited for the show. I’ve wanted to see this collection for years, so in terms of serving a public, NuMu got that one right!"

"Then what might have seemed like whining turned serious"

Jerry Saltz on the controversy surrounding the New Museum's upcoming show of Dakis Joannou's "fabled," incredible" (Saltz's words) collection.

The Art Market Monitor comments here.

Non-profit lawprof Susan Gary says "in my view, the benefits of this show outweigh the conflicts. It sounds like these works of art ... will be of great interest to lovers of modern art." She adds:

"As I read the [New York Times] article, I wondered where the conflict was. Giving the public a chance to view works of art held in a private collection seems like a good idea to me. However, as someone who does not collect art, I had not realized that a museum showing of a private collection will increase the value of those pieces of art. The value of a museum show is of particular importance for modern art, because a show indicates that the pieces are considered 'museum worthy.' So Mr. Joannou's collection will likely increase in value as the result of the show. There is no indication that he plans to sell any of the art anytime soon, but if he does sell some pieces at some point, he may benefit financially from the show."

Or not. As Saltz says, "it is a joke ... to think that Joannou’s collection will increase in value after being shown here. If anything, using three floors of the New Museum will overexpose the art and decrease its value." Put another way, there isn't any doubt that this collection is already "museum worthy."

"A San Francisco artist who was chosen by city officials to paint a mural on Market Street was stabbed last weekend ... while working on the job"

San Francisco Examiner story here.

"Has such a large portion of any other artist's catalogue been stolen or looted?"

Mark Durney looks at Vermeer's art theft track record.

New Lawyers for Fairey

Report from the New York Times here. According to Sergio Muñoz Sarmiento, in granting the request Judge Hellerstein said he had "never seen anything like this" and described Fairey’s conduct as a "serious transgression" -- but added that (like a lot of people) he wants "this case to be decided on the merits."

"What's Wrong With Charitable Giving"

Pablo Eisenberg attempts an answer in the Wall Street Journal. The Nonprofit Law Prof Blog adds some thoughts.

Longtime readers my remember Eisenberg for his argument that the tax deduction for fractional gifts of art should be abolished.

"Seung's blind reliance on Dinaburg's alleged statements of the painting's value is not reasonable as a matter of law"

I've been meaning to mention the recent NY state court decision dismissing a claim by a collector who bought a Julian Schnabel painting for $380,000 from a dealer who allegedly said it was worth "at least $500,000" when its true market value "was no more than $110,000." (Among other things, it had sold "months earlier" at Philips for $156,000 (against an estimate of $60-80,000).)

The decision proceeded on basic caveat emptor grounds. "A party is not justified in relying on any alleged misrepresentations if the facts were not peculiarly within the other party's knowledge and the party had the means to discover the truth by the exercise of ordinary intelligence." "Seung does not allege that she made any effort to ascertain the value of the painting prior to its sale." "Seung alleges nothing more than a relationship of art buyer and art seller, which does not rise to the level of a special realtionship [required for a negligent misrepresentation claim]." "Seung could not have reasonably relied on statements regarding the painting's value when she made no effort to independently ascertain its value."

Greg Allen comments: "if Seung's case is meaningful, it's only as a reminder to collectors to do their own damn homework; the NY Supreme Court determined that art advisors and even dealers are not 'experts,' and their opinions are just sales patter which constitutes, at best, 'non-actionable 'puffery'...on which a sophisticated commercial entity could not reasonably rely."

"People disagree vigorously over whether a photo of a copyrighted work is a derivative work. The court refused to resolve the issue"

Rebecca Tushnet: "Seventh Circuit rejects Gracen, tries again."

The decision is here. For background, see here.

"There is no logical connection between Sotheby's failure to disclose a security interest and any actual or potential injury to … Minor"

Though it comes in the fairly narrow context of a motion for leave to amend his counterclaims, there is some language in a recent decision in the lawsuit that would seem to be pretty devastating to Halsey Minor's overall case against Sotheby's. First, the court rejected the idea that the alleged non-disclosure could have injured Minor in any way:

"Minor does not allege that ... the paintings were auctioned at an inflated price because of the failure to disclose the security interest. To the contrary, because the paintings were sold [to him] at auction, Minor set the price for the paintings. . . . As explained above, the allegations in the proposed counterclaim do not support an inference of any connection between Sotheby's conduct and any actual or potential damage to … Minor… [B]ecause Minor pleads no facts to support an inference that Sotheby's security interest affected the value of the paintings, he fails to identify how Sotheby's failure to disclose this interest was material."

The court also rejected the notion that Sotheby's had fiduciary duties to Minor in connection with the sale:

"In arms length commercial transactions, 'no relation of confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent extraordinary circumstances'" (quoting DeBlasion v. Merrill Lynch & Co., Inc., 2009 WL 2242605).

I believe Sotheby's own motion for summary judgment is still pending.

More Minor legal news here.

Art Theft by Country

Judith Dobrzynski breaks it down.

More on Moore

Rebecca Tushnet has a good summary of the district court decision (mentioned earlier here) in favor of Daniel Moore in his lawsuit with the University of Alabama. She says "the Tiger Woods case is so on point that quoting big chunks of it got the court basically where it needed to go."

Meanwhile, the Tuscaloosa News says "UA needs to walk away from Moore lawsuit."

8-0 Alabama hosts No. 9 LSU this weekend.

"How can cultural heritage institutions legally use the Internet to improve public access to the rich collections they hold?"

I've linked on a number of occasions to Peter Hirtle's thoughtful commentary on the Brodsky bill and related issues. Peter's now co-authored a new book entitled Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, which I'm sure is well worth checking out. Read more about it (and download a PDF copy if you want) here.

"School, sculptor in battle over art"

From the Detroit Free Press: "A renowned sculptor and Holocaust survivor who spent the last 37 years as artist-in-residence at Orchard Lake St. Mary's prep school is engaged in a bitter feud with school officials over who owns more than $2 million in artwork at the campus. Marian Owczarski, 76, said in a lawsuit filed Oct. 29 in Oakland County Circuit Court that many of the 1,800 pieces of sculpture, paintings, metalwork and stained glass on display at the campus' Galeria are from his private collection."

Moore to Come

In my initial post on the University of Alabama's lawsuit against sports artist Daniel Moore, I said: "I make Moore a two-touchdown favorite to win." Well, three years (and several judges) later, Moore has won at the district court level. In granting his motion for summary judgment, however, the court made it very clear that "this court is a way station on the route to appellate court(s)" and said it would certify its rulings for immediate appeal under Rule 54(b).

Mo(o)re from the Tuscaloosa News here.

Deaccessioning Quote of the Day

From Crispin Sartwell (reacting to this piece by Peter Brooks in the NYRB):

"for example, the metropolitan museum says that it possesses 5 million objects. now how many of these are on display? 20,000? so in what sense is the work 'viewable'? it's like - correction: it is - a massive bunker of art, a miser with a stashed hoard of useless gold. the point isn't to display the art; it's to segregate it or insulate it, to assert its priceless uniqueness by, um, burying it forever etc."

"We can all be fooled, and this man fooled me"

"The FBI is investigating allegations that William Toye, 78, and his wife Beryl Ann, 68, have been selling forged paintings to unsuspecting art collectors and dealers since the 1970s."

The investigation concerns the work of outsider artist Clementine Hunter.

"Heiress fights dad's bequest to the arts"

From the UPI: "The daughter of a late Texas oil pioneer claims lawyers coerced her father into cutting her share of his estate and convinced him to give it to charity instead. Curry Glassell ... claims in a lawsuit her father, Transcontinental Gas Pipe Line Corp. founder Alfred C. Glassell -- who died at age 95 in 2008 -- was sick and possibly demented when he changed his will at age 87 to give more to Houston arts. She alleges lawyers for the Museum of Fine Arts, Houston, pushed him to make the change."

More from the Houston Chronicle here.

Latest from the Art Loss Register

Here.

Fairey's New Lawyers

Shepard Fairey has a new legal team in place for his lawsuit with the AP. (The change was occasioned by this.)