Thursday, May 28, 2009

"Why should local diggers break their backs and risk arrest when they could stay home and make a cottage industry out of copying ...?"

The LAT's Mike Boehm has more on UCLA's Charles Stanish, author of the article I mentioned here.

Warhol Decision

The NYT's Randy Kennedy reports that "a federal district judge in Manhattan said Tuesday that a class-action lawsuit charging fraud and other misconduct could proceed against the Andy Warhol Foundation and the board that authenticates Warhol's work. The suit was filed by a filmmaker, Joe Simon-Whelan, who bought a Warhol painting … in 1989 only to see it later declared inauthentic on two occasions by the board …. The board and foundation have denied the accusations and sought to have the suit dismissed. Judge Laura Taylor Swain ruled that Mr. Simon-Whelan had asserted his allegations 'plausibly' enough for the case to continue to the discovery phase on many of its claims."

Much more from The Art Newspaper.

"'People have to be practical. They have to be pragmatic. They have to stop being righteous"

Move over, Hugh Davies. I think I have a new favorite museum director. Judith Dobrzynski calls attention to an interview Maxwell Anderson did with the Guggenheim's new director, Richard Armstrong:

"[A]round the 40th minute, Max asks about deaccessioning. Armstrong replies:

'The collection needs to be shaped. It's slightly misshapen....One wonders, does one need to own 114 Kandinskys, for example.'

"Max, surprised, offers 'we're interested in Kandinskys,' and Armstrong plows ahead: 'I just think there's a way of deploying assets slightly differently.'

"Max tries again, bringing up a conference call on deaccessioning policy among members of the Association of Art Museum Directors. But Armstrong counters:

'People have to be practical. They have to be pragmatic. They have to stop being righteous. They have to stop being proud of the fact that the museum died, but the collection is intact. That's where we're headed, I'm afraid, in a number of provincial places.

'A lot of museums are not going to make it. There needs to be an infusion of pragmatism.'

"Trying to get Amstrong to draw a line somewhere, Max asks whether he's a no-holds-barred guy on deaccessioning. Armstrong says:

'I think I am, yeah.'

"To which, Max says, 'you'll be the cowboy on this.'"

Wednesday, May 27, 2009

"A case study ... in how not to make and implement hard decisions in the face of an economic crunch"

Felix Salmon on "The Sorry Story of the Rose Art Museum":

"Where are we now? Well, the Rose is essentially dead — its donors have rescinded their pledges, artists are asking for artwork back, the director has been fired, and it has no chance of being able to raise a penny in new money any longer. That’s the downside, for Brandeis, whose own reputation has been trashed in the process. And the upside? Pretty much nonexistent: no art has been sold, no art will be sold for the next couple of years at least, and confusion reigns on campus and beyond."

Update on the Brodsky Bill

The NYCBA Art Law Committee recently sent a letter to Assemblyman Brodsky, regarding his proposed museum deaccessioning bill. You can read the letter here (courtesy of Sergio Muñoz Sarmiento).

I'm opposed to the bill in its entirety -- I'm one of those who, as their letter puts it, "maintain that uniform restrictions on the use of deaccessioning proceeds may not neccessarily serve the best interest of the institutions or the public" -- like Christopher Knight, I think we can "trust [our] tax-subsidized museum professionals to use their art collections wisely and for [our] benefit" -- but, if we have to have the legislation, the Committee makes some good suggestions for making it a little less bad.

Speaking of the Art Law Committe, they're sponsoring a public program tomorrow night on The Art of War: The Protection of Cultural Property in War and Peace.

Raw Deals

A reader sends a link to an odd story from the Central Pennsylvania Patriot-News, under the headline Raw deal: Pennsylvania artwork now under U.S. Postal Service copyright. Apparently the U.S. Postal Service is preventing certain publicly-funded New Deal artworks from being photographed, but if so, my guess is that they are doing so not because the work is "now under Postal Service copyright," but, rather, because it's on their property, and they aren't obligated to allow people onto their property to take pictures. That doesn't make it right, as a matter of policy, but there is a difference.

"Copyright in the US is automatic on fixation of a creative work .... Registration is not necessary for basic copyright protection"

Rebecca Tushnet notes a Washington Post story that "confus[es] 'registration' with 'copyright' almost every single time the word 'copyright' appears. ... It is misleading, and potentially quite damaging, to tell authors that 'a claim filed with the government offers legal protection -- it is the only way to stop someone else from copying a work.'"

Tuesday, May 26, 2009

Deaccessioning as Settlement Tool (UPDATED)

Judith Dobrzynski reports that the National Gallery of Art "has just agreed to transfer the ownership of a painting on view there, Chaim Soutine's Piece of Beef, to the family of a prior owner" in settlement of a lawsuit. The suit "was brought by the estate of Lorette Jolles Shefner of Montreal against the National Gallery and Maurice Tuchman and Esti Dunow, the authors of the Soutine catalogue raisonné, about a year ago. It accused the men of 'tricking her into selling the 1923 painting for $1 million -- below market value -- and then reselling it for twice the amount to the museum in 2004.'"

An NGA spokeswoman tells Dobrzynski in an email that, in return, the museum will receive payment of "more ...than it paid for [the work]." I'm not sure what that means, exactly. I guess one possibility is that everyone agreed to go back to the status quo ante: Tuchman and Dunow return the $2 million (plus a little) to the museum, the estate gives them back their $1 million, and ownership of the painting goes back to the estate (though it has agreed to leave it on view at the NGA "for the near future").

UPDATE: A loyal reader points out, based on first-hand knowledge, that, contrary to the Arts Journal report linked to above, Esti Dunow is a she.


Friend of the Barnes Evelyn Yaari responds via email to my post last week wondering what difference it would make if the Delaware River Port Authority rescinded its $500,000 in funding for the move to Philadelphia:

"This particular grant is distinctive because it is public money and because the DRPA is a regional governmental body. There is symbolic value in it if, by some miracle, the votes come together to rescind it, or even get close. Besides, we saw an opportunity to raise some of the issues that are far more important than the half million dollars, including:
  • Not only has the DRPA not evaluated the Barnes project in line with its own Guidelines on Economic Development; none of the interested parties (Pew, Lenfest, Annenberg, the City of Philadelphia) has published a study of the project. (Link to the Statement by Professor M. Marcus)
  • There is absolutely no evidence to support what appears to be a fore-gone conclusion that a Philadelphia Barnes project is of great benefit to Philadelphia and the region.
  • The only study we have seen is The Abruzzo Case Analysis, by Professor James Abruzzo, which calls the Philadelphia Barnes plan "highly risky". That was in 2004 - before the current climate of extreme uncertainty. (Link to the Abruzzo Analysis)
  • What we are looking at is, among other things, a huge Pork Barrel Project that will become a major consumer of public and private funding now and for however long it can stay together.
  • Rather than an undertaking that ensures a financially stable future for the Barnes, this exposes the institution to a level of risk to which it has never been exposed in Merion. That there is no legal means of stopping it is a disgrace; however, we will continue to pursue whatever avenues remain available to block funding.
  • The high risk, combined with the enormous lump sum investment for this insanity will affect other institutions as well. That is inevitable and explains why many in the arts and culture community perceive of the Barnes project like The Blob."

"When people say, 'You can't sell the art,' I say, 'OK, can we close five departments on campus?' Tell me what I can do. This is the problem"

The Jerusalem Post had a lengthy piece this weekend on Brandeis and the Rose Museum, which "had come to embody the legacy of the postwar generation of American Jewish art collectors, many of them successful entrepreneurs who rose from immigrant tenements to university boards through sheer force of will and imagination."

"Institutions of every stripe are scrambling for survival in a recession draining them dry of funds"

The Toronto Star had a piece this weekend on the deaccessioning debate. I'm quoted as follows:

"So an argument exists against an art-for-art, AMMD-approved, deaccessioning-only model. Why can there never be any other 'use of proceeds,' wonders New York lawyer Donn Zaretsky, 'no matter how important to an institution's mission?' So here's the question: Might the sale of some lesser pieces by the Toronto school board help pave the way for the next Alex Baumann, who could train in the board's revitalized swimming pools."

I'm also included in this round-up by Kelly Heyboer of the Newark Star-Ledger.

Let's Go to the Videotape

Bloomberg's Philip Boroff has more on collector Gregory Callimanopulos's lawsuit against Christie's (mentioned earlier here). In its response to Callimanopulos's motion for preliminary injunction, Christie's says "video recordings of the [May 13] Auction conclusively show that [another bidder] made a bid for the Artwork well before [the auctioneer] brought down the hammer .... Because the evidence conclusively shows that [the other bidder] bid on the Artwork before the hammer fell, this case does not even present a legal issue of whether [the auctioneer] properly exercised his considerable discretion under Christie's Conditions of Sale and the U.C.C. in recognizing a bid that was made with the hammer."

Friday, May 22, 2009

"We are absolutely at a point in this economy where these sort of things have to be on the table"

Tamar Lewin in today's New York Times: "Brandeis University said this week that it would suspend payments to the retirement accounts of faculty and staff members starting in July."

The article closes with the following:

"Brandeis, founded in 1948 in Waltham, Mass., has had a tough year. In January, the art world was rocked by news that the trustees had authorized the closing of the Rose Art Museum and the sale of its well-regarded collection, which includes works by Roy Lichtenstein, Jasper Johns, Robert Rauschenberg and Ellsworth Kelly. That plan is now under review. The museum’s curated exhibitions ended last weekend, but some of the permanent collection will be exhibited starting in July."

Minor Sale

The Art Market Monitor notes that one of the works involved in Halsey Minor's dispute with Sotheby's -- a Childe Hassam painting he bought for $3.9m last Fall, but refused to pay for after discovering that the auction house hadn't disclosed that it had an interest in another work he bought at the same time -- sold this week for $2.3m. In response to a commenter, the Monitor "venture[s] that [Minor's] claim [against Sotheby's] is not sincere. He seized upon the [allegedly undisclosed interest] as evidence that Sotheby’s was not advising him properly in the purchase. But an auction house is a vendor. The idea that they are disinterested defies all common sense and commercial experience. Minor’s high dudgeon doesn’t change that. Generally a vendor has an interest in making a sale." Minor then shows up in the comments to say: "Speculation is always fun but let the court rule. They and they alone have all the facts. Just as an FYI this painting had a guarantee attached when I bought it. There was no mention in the catalogue. Are you aware of guaranteed items ever not being notated?"

Speaking of letting the court rule, I took a look at PACER, and it seems Sotheby's recently moved for partial summary judgment in the case. Their motion papers note that in 1997 Sotheby's wrote to to the New York City Department of Consumer Affairs (DCA), explaining that "since the adoption of the revised regulations in [1987], Sotheby's has understood that if the auctioneer makes a loan to an auction consignor secured by works of art which are included in an auction, Sotheby's is not obligated specifically to disclose in the catalogue which items are loan collateral. Rather, Sotheby's satsifies its disclosure obligation by including in the catalogue a general policy statement that sets forth its lending policy." The General Counsel for the DCA wrote back: "I can confirm that the practices described in your letter are in accord with" the pertinent rules.


Two of the three Eakins paintings -- or, as I like to think of them, works which, having fallen under the aegis of a museum, were held in the public trust, to be accessible to present and future generations -- the Hirshhorn recently announced it was deaccessioning were sold at Christie's this week and therefore will not be accessible to present and future generations.

UPDATE: More Eakinses leaking out of the public trust.

Thursday, May 21, 2009

Still Fighting

The Philadelphia Bulletin reports that "opponents of moving the Barnes Foundation art collection from Merion to Philadelphia asked members of the Delaware River Port Authority ... to rescind $500,000 in funding for the move yesterday."

It's not clear to me what impact this would have in any event. The total budget for the move is over $100 million.

Wednesday, May 20, 2009

"The treatment of consignment in bankruptcy has often been described as mystifying"

Another good art-law related student note: Hilary Jay, "A Picture Imperfect: The Rights of Art Consignor-Collectors When Their Art Dealer Files For Bankruptcy," in the Duke Law Journal. She does a nice job showing what a mess the existing law is, and makes some suggestions for fixing things, including extending state statutory protections for artist-consignors to collector-consignors.

Art Theft Recs

R.A. Scotti, author of the recently published "Vanished Smile: The Mysterious Theft of Mona Lisa" (see here), recommends some other books on art theft.

Tuesday, May 19, 2009

Bid Battle

Bloomberg's Philip Boroff reports that "Gregory Callimanopulos, a shipping magnate and collector, said in a lawsuit filed Friday in U.S. District Court that Christie’s improperly reopened bidding for [a Sam Francis] painting ... after his $3 million telephone bid was accepted by the auctioneer."

The Art Market Monitor was in the salesroom that night, and says:

"What happened in the room was fairly simple. [Auctioneer Christopher] Burge was bringing the hammer down [when] a spotter to his right called out a bid just as the hammer clapped down on the podium. Burge quickly announced the new bid and declared 'you saw it,' which was funny because he hadn’t seen it himself but heard the spotter shout. As he re-opened bidding, the telephone bidder made a half-hearted chopped bid and the late-bidder countered to win the lot as the room filled with murmurs. Jose Mugrabi could be seen in his seat wagging his finger at Burge."

Section 2-238(2) of the UCC provides that "a sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner. Where a bid is made while the hammer is falling in acceptance of a prior bid the auctioneer may in his discretion reopen the bidding or declare the goods sold under the bid on which the hammer was falling."

And Christie's Conditions of Sale -- which "by bidding at auction the bidder agrees to be bound by" -- provide that "the auctioneer has the right at his absolute and sole discretion to ... advance the bidding in such a manner as he may decide, ... and, in the case of error or dispute, and whether during or after the sale, to determine the successful bidder, to continue the bidding, to cancel the sale or to reoffer and resell the item in dispute. If any dispute arises after the sale, our sale record is conclusive."

Monday, May 18, 2009

Saturday, May 16, 2009

"We are not in the business of upsetting and alienating our donors and community"

Interesting sidebar on the Montclair Art Museum deaccessioning: the museum has "decided not to auction off [a] 104-year-old portrait of one of its founders after his descendants complained that the memory of the Montclair civic leader was being disrespected." The portrait was expected to bring $25,000-$35,000.

The remainder of the "aggressive" deaccessioning remains on, however:

"The museum, which has been struggling financially as a result of the recession, has come under fire for its plan to deaccession so many works. Critics have questioned the timing of the sale and the decision to invest the proceeds for use in the future. [Montclair director Lora] Urbanelli claims the museum's actions are within the ethical guidelines outlined by the Association of Art Museum Directors."

Friday, May 15, 2009

Difficult Choices

One of the arguments Lee Rosenbaum likes to make against deaccessioning is the following:

"Perhaps an analogy might help them understand what's really at stake. If someone were to suggest that funds be raised by selling important books from the library, that (one hopes) would be a non-starter: Books go to the core of the college's educational mission."

(To which I once responded:

"Would we really object if a university decided it was in the best interest of the school to sell off some books -- presumably because they thought the proceeds from the sale could be put to better use in other ways (like funding athletic programs, or preserving the anthropology department, or supporting additional need-based scholarships, and so on)? ... Do we really want to say that university trustees and administrators can never, under any circumstances, sell off an asset that 'goes to the core' of its educational mission, even if the funds raised from the sale would be used to acquire other assets (or fund programs etc.) that also go to the core of its educational mission?")

Well, here we go: The University of San Francisco is reportedly considering selling items from the rare book room of its library. And it draws the usual responses. One bibliophile says: "Any way you look at it, this is a nasty business .... [D]eaccessioning - legitimate deaccessioning - is a necessary part of an institution's business, but doing so in this form and fashion is completely beyond the pale. Not only is selling off prize items from the collections just cutting off your nose to spite your face, it's also an incredibly short-sighted way to deal with financial difficulties." Another responds: "The financial peril USF faced must have been acute. ... Is it unfortunate that the Library has had to sell a few items? Indeed. Is it a catastrophe? No."

"Despite the promising effects of the TTCA, some disincentives to fractional giving still remain"

Honorable mention in the 2009 Paul Faherty Tax Writing Competition for law students went to Kristina Gordon of Loyola-Chicago for her (cleverly titled) Where is My Monet? Museums and Donors Lose an Important Incentive for Fractional Giving. (I appreciate the props in various footnotes.) I noted a related student note here.

Davis Suit

Josh Baer: "Earl Davis, the son of Stuart Davis, has sued dealer Michael Altman over 2 paintings. In the first he alleges that Altman never paid the estate on a $2 million sale to Alice Walton and the other is part of the Salander fiasco where he alleges Altman took a painting from Salander without proper title."

This isn't Davis's first Salander-related suit. See here. And more on Davis and Salander from the Maine Antique Digest a little while ago here.


Back in November I mentioned a NY state court decision that I said "could have far-reaching implications for the auction houses." Judd Tully wrote about the case in the February Art+Auction, noting that it had "sent a chill down the collective spines of the major auction houses."

Christie's motion for reargument of the decision has now been denied (or, more accurately, the motion was granted, but the court stuck to the original decision). The court held that the fact that Christie's "never dealt with [the plaintiff]" is irrelevant: "lack of privity is not a viable defense to a fraud claim." It added:

"Christie's argues that if the fraud claims against it from a third party are sustainable, such liability could stretch out in perpetuity. It asks where or, more precisely, when that would end. Could it be liable under a theory of fraud not only for decades but for hundreds of years? While not unmindful of the validity of this line of inquiry, that question is not currently before the Court. The nexus between Christie's and Orsi is not only close, but also limited and finite."

One aspect of the decision that I did not mention in my initial post was that it also let stand plaintiff's claim for damages in the amount of $2,000,000 (the current value of an authentic Basquiat painting), rather than limiting him to $185,000 (what he paid for the painting). The court reaffirmed that holding as well, on the ground that UCC Section 2-721 "was intended to correct the traditional remedies available for fraud, and those remedies were therefore extended to coincide with those available for non-fraudulent breach [of contract]."

Justice Cahn wrote the initial decision. Justice Kornreich wrote the new one, so that's two separate judges sending chills down auction house spines. I suspect the next stop will be the Appellate Division.

Thursday, May 14, 2009

"The second major art heist in 10 days in the Netherlands"

Details here. Here was the first one. The Art Market Monitor says "both highlight the problems of security in small museums."

Fairly Straightforward

The rigid formalism of the AAMD/AAM position on deaccessioning (sales to buy more art -- totally fine, knock yourself out; sales for any and all other reasons -- repulsive) leads its defenders to say some odd-sounding things, at least to my ear. Here's an example, from a story in the Newark Star-Ledger yesterday entitled "Sale of art linked to financial woes by Montclair museum sparks debate." AAM president Ford Bell is quoted as saying:

"It is fairly straightforward. Museums have a lot of stuff in their basements that they don't use. You don't want to be caring for and conserving objects and collections that aren't central to your mission. But it is not acceptable to sell parts of your collection in order to pay the bills."

What's great about this quote is that it perfectly encapsulates the internal inconsistency of the AAM's position. It starts off by talking down the works that museums sell in order to buy more art: it's stuff museums don't use, that isn't central to the museum's mission, valuable resources are being wasted caring for and conserving them. It's in the basement, for chrissakes. But then -- in the very same breath -- comes The Pivot. All of a sudden it is "unacceptable" to sell this same superfluous, basement-residing stuff -- for any purpose, no matter how worthy. (Notice how, in Bell's quote, it's just "stuff" when it's being sold to acquire other art, but it gets promoted to "parts of your collection" when it's being sold for other reasons.)

There's another amusing quote in the same article, this one from Montclair director Lora Urbanelli:

"Urbanelli said the museum is accelerating the pace of the deaccessionings to take advantage of the art market. 'The market might be down overall but certain areas are strong. Some sales may be better now than next year. Next year might be tougher,' she said" (my emphasis).

Really? They decided now is the time to take advantage of the art market? That's an interesting approach.

Tuesday, May 12, 2009

"This case has profound implications for artists' rights"

Last fall I wrote about "another frustrating VARA decision," this time involving artist Chapman Kelley's Wildflower work in Chicago. Kelley has now filed his appellate brief with the Seventh Circuit, relying primarily on the grounds I described in my earlier post:

1. I said the District Court's holding that the work was not "original" enough to qualify for copyright protection was "just plain wrong" under the Supreme Court's Feist decision. The brief says "the District Court invoked a legal standard that bears no relationship to the extremely low threshold for copyright protection established by the Supreme Court in Feist" (p. 10).

2. I also said:

"As an alternative holding, the court, without much analysis, followed the First Circuit in Phillips v. Pembroke in finding that VARA simply does not protect site-specific art. I discussed the Phillips decision here. The gist of that discussion was that, while a reasonable argument can be made that VARA doesn't prevent the removal of a site-specific work, there's no reason to completely exclude site-specific works from VARA's orbit. Kelley's work serves as a good example. Let's say that, instead of removal, someone had come in one night and destroyed large sections of the work, or splashed red paint all over it, or otherwise defaced it. Why should the work not be protected against those sorts of things? What does the work's site-specificity have to do with any of that?"

Kelley's brief argues that the District Court was wrong to adopt "(without any analysis of its own) the First Circuit's fatally flawed conclusion regarding site-specific art" (p. 10):

"Site-specific art is just as vulnerable to acts of distortion, mutilation, or modification ... as non site-specific art .... A site-specific mural ... is just as vulnerable to mutilation as a painting hanging on the wall of a museum and VARA should and does protect both. ... [This case] highlights the extent of the error in the First Circuit's interpretation of VARA's application to site-specific art. The Park District did not remove and thereby conceptually damage [Kelley's work]. Instead, the Park District did something equivalent to painting a huge garish mustache on the Mona Lisa .... The Park District did not remove and relocate Chapman Kelley's art -- instead it distorted and mutilated the [work] in the exact location where it has been for decades ..." (pp. 19-20).

Monday, May 11, 2009

"An absence of clues meant an abundance of theories, and Scotti advances them all in a collection of arresting but disparate narratives"

Yesterday's NYT Book Review included a review of "Vanished Smile: The Mysterious Theft of Mona Lisa," one of two new books on the 1911 crime (see earlier post here). You can read the first chapter of the book here. Another review from the Times here.

"Finding an answer of what's best to do with a valuable painting is difficult"

The Wilmington Library in Delaware is selling 14 N.C. Wyeth illustrations "to pay for $5 million in major improvements." Story here. "No one is sadder than we are," says the president of the library's board of managers. "We love the paintings but we also love the building and want to keep the library in the building and make improvements in tough economic times."

Are these works held in trust for the public? Or do only museums hold work in trust for us? Is this sale repulsive? It's so hard to keep it all straight sometimes.

Framing Art Vandalism

An interesting student note by M.J. Williams in the Brooklyn Law Review arguing for legal recognition of art vandalism separate and distinct from other forms of vandalism. As a bonus, it includes an appendix of reported instances of art vandalism in public institutions over the last 30 years.

"Obama Continues to Promote Limits on Charitable Deductions" (UPDATED)

The Chronicle of Philanthropy has the latest.

UPDATE: More from "The charitable deductions proposal has drawn opposition from congressional Democrats."

Thursday, May 07, 2009

MOCA Update

The LA Times's Mike Boehm has an update on the California attorney general's investigation into LA MOCA's finances -- "the withered state of which became a running news story last November and December."

Third-Party Guarantee

At Christie's last night, a Picasso was sold by Jerome Fisher, a founder of the footwear company Nine West and (according to the NYT's Carol Vogel) "a victim of the Bernard L. Madoff swindle," for $14.6 million. The WSJ's Kelly Crow adds some further detail:

"Before the sale, the auction house had signed up outside investors to promise the seller of the Picasso a prearranged price for the painting. In exchange, the investors were promised a cut of any profits should the work sell to another bidder for an even greater price, an arrangement called a third-party guarantee. During the sale, the anonymous investors bid on the Picasso but were ultimately outbid."

Wednesday, May 06, 2009

"Ultimately the administration decided that the government should hold onto more tax revenue to improve health care"

The director of the White House domestic policy council tells foundation officials that President Obama’s plan to limit charitable tax deductions "was hotly debated in the White House."

More Art-Related Bankruptcy News

The Wall Street Journal reports: "The art lovers at a once high-flying subprime mortgage lender now under bankruptcy protection and California’s insurance regulator have settled their fight over collection of Ansel Adams prints. Fremont General Corp. has agreed to let California’s Insurance Commissioner to keep $4.1 million from the sale of Ansel Adams prints sold at Christie’s auction house last year in the months before the company filed for bankruptcy protection."

Salander Bankruptcy Compromise

Bloomberg's Philip Boroff has the latest on the Salander bankruptcy: "Bank of America’s First Republic unit agreed to share proceeds from the sale of art with other creditors of the bankrupt Salander-O’Reilly Galleries LLC. The compromise was announced [Monday] in U.S. Bankruptcy Court in Manhattan. As a secured creditor, First Republic could have claimed the proceeds before others."

Tuesday, May 05, 2009

On Repulsiveness

In a post last night, I noted that, in his response to the interim report of the Future of the Rose Committee, Christopher Knight had asserted, without argument, that it is ethically "repulsive" to sell art and use the proceeds to pay for university expenses.

Brandeis philosophy professor Jerry Samet, the chair of the Committee, noticed the same thing, and responded in the comments to Knight's post:

"You say:

"'Yes, legally it is quite possible to sell museum art and pay the university's bills with the income. Ethically, however, it's repulsive.'

"As the chair of the Committee whose report you discuss, I have to ask:

"Can you explain what exactly is repulsive about it? If you replace '... and pay the university's bills' in your condemnation with a real description of what those bills are FOR--eg: '... and provide scholarships to students whose families are suddenly unable to afford the tuition' or '... and pay professors instead of canceling courses and cutting back programs', and so on, perhaps you'll rethink your judgment.

"If you STILL think it's repulsive, then you owe your readers an explanation of how you've arrived at this moral view. Is it your view that selling art to do ANYTHING in the world except buy more art is morally repulsive???"

Knight responds by updating his post to include "a few links to past articles on the subject [of deaccessioning practices] for new readers," but I don't see anything that remotely supports a claim of repulsive-ness (in fact, one of the three links is to his "deaccessioning is not a dirty word" piece, which claimed that deaccessioning is "actually a routine feature of prudent museum management," which, "[w]hen done with care and skill," "benefits current and future generations of museum-goers"). Nor do I see in any of those links an answer to Samet's direct question: is it the case that selling art to do ANYTHING in the world except buy more art is morally repulsive?

Monday, May 04, 2009

On the Rose Report

I've now had a chance to read the interim report of the Future of the Rose Committee, and I'm not sure it's right to describe it, as the Boston Globe did, as "a vote of confidence for the beleaguered administration."

It is true that it begins by echoing the point I've made here on several occasions that "the Administration has changed its thinking in substantial ways":

"Brandeis is not closing the Rose and selling all the art work, though we must say in the same breath: it remains a possibility that some will be sold. Brandeis is not going out of the museum business, although here too we must acknowledge that we've heard from some who hold the view that we ought to, or might as well, go out of the museum business if we plan to sell any art work. ... As we see it, the University had stepped back from the precipice."

But it then goes on to stake out a very clear "position of neutrality" on the question whether any art should be sold. The Committee "takes it as a 'fact on the ground' that the Board of Trustees has authorized the Administration to sell art work if the budget crisis requires it." The Committee "has remained neutral" with respect to that decision: "Our job is to help figure out how best to go on, given that such sales might occur."

Why take this approach, rather than "evaluate the Board's decision with an eye to endorsing it or recommending that it be reversed"? Because "this sort of evaluation is outside of our expertise." The decision "has to do with the overall, long-term, financial well-being of the University, and we believe that our Committee's experience and expertise is better focused on issues regarding art and education rather than making recommendations about the University's best financial course."

Thus the specific charge of the Committee is to "recommend ways for the Rose to continue to play a vital role in the cultural and educational mission of the University."

There's also an interesting little section on "legal information":

"[T]here has been a good deal of unfounded speculation and misinformation in the community about possible legal constraints on the Rose, the legality of the sale of art, and the impact of such sales on the Rose's status as a museum. Early in the process we sought clarity on these issues, and we received answers to the following questions from Judith Sizer, university legal counsel:

"Q1. Can Brandeis legally operate a public museum if we sell art work and do not use the proceeds to purchase other art work?
"A. Yes.

"Q2. Are there any restrictions with respect to the name of the building and the spaces? Are we obligated to keep the names 'Rose Art Museum', 'Mildred Lee Gallery', and 'Lois Foster Wing' according to the donor agreements?
"A. Yes, in all three contexts.

"Q3. Are there other specifications in the donor agreements detailing how the space must be used?
"A. The donor agreements do not contain explicit instructions concerning the use of particular spaces within the building."

It's interesting to hear that, no matter how it's "repurposed," it still has to be called the "Rose Art Museum."

The report notes that, while "selling art to purchase other art is part of the normal life of a museum," selling art "to provide budget relief for the sake of the broader University violates professional standards of the museum world," which "would have serious consequences for the professional life and standing of the museum and its staff." As a result, among the things the Committee is considering are "(i) what sorts of policies and tactical steps could strengthen the Rose to deal with this special vulnerability, and (ii) how to plan for and mitigate the damage to the Rose and its collection if and when such sales do occur."

Finally, the Committee re-states its belief "that the University must do all it can to insure that the Rose remains a vibrant and distinguished part of the University, and it must in the coming period reaffirm in very concrete ways its commitment to the Arts. To that end, we are considering how the mission of the museum can be enhanced and maximized."

Time magazine's Richard Lacayo offers some thoughts on the report here.

The LA Times's Christopher Knight says "yes, legally it is quite possible to sell museum art and pay the university's bills with the income. Ethically, however, it's repulsive." Not just wrong, or misguided, mind you, but repulsive. He doesn't say why it's repulsive, he just asserts it, but such is the nature of routine blogging, I guess. Nor does he attempt to answer Floyd Norris's question:

"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?"

"Though sophisticated heists at museums garner big headlines, most art thefts in the United States occur in run-of-the-mill burglaries"

The Kansas City Star had a story yesterday on the FBI art crime unit, which has recovered "more than 1,000 items worth more than $135 million."

"Generally, the donor’s recourse is to not make future gifts"

NYT "Wealth Matters" columnist Paul Sullivan had a piece over the weekend on the "battles between dead donors and nonprofits [that] are increasing as the economy worsens." He says that "when the donor is alive, redirecting funds is simple: a charity asks and the donor agrees or disagrees. The battles ensue when the donor is dead and the meaning of the legacy is up for debate. ... [I]f the university presses on, the heirs have little recourse beyond the court of public opinion. State attorneys general are responsible for regulating nonprofits, but they often do not have the time or desire to get involved."

Friday, May 01, 2009

Not a Dirty Word

Both the New York Times and the Washington Post pick up the story of the Hirshhorn's deaccessioning of three Eakins portraits. The stories emphasize that the decision came after "a two-year assessment"; that the museum has 217 other works by Eakins; and that the three works have not been exhibited at the Hirshhorn since 1977.

That's all well and good, but it's funny how we never hear those sorts of things when work is being sold for reasons other than the purchase of more work. Then, all you hear is how those works are held in the public trust for the benefit of future generations etc. etc.

What if, instead of saying:

"After a two-year assessment, we've decided to sell three of our 220 works by such-and-such artist, which by the way haven't been exhibited in more than three decades, and we're going to use the proceeds to buy more art,"

a museum said:

"After a two-year assessment, we've decided to sell three of our 220 works by such-and-such artist, which by the way haven't been exhibited in more than three decades, and we're going to use the proceeds to . . . fund an outreach program for low-income kids in town . . . or bring more traveling exhibitions to the museum next year . . . or save a bunch of jobs that might otherwise be lost . . ." or any number of other things that -- depending on the thing and depending on the art -- might be just as valuable as acquiring more art.

Why do the reasons for selling suddenly not count when the proceeds are being used for things other than buying more art? Why can't the same kind of analysis be done in both contexts?

"We assume that whatever decisions the board makes regarding such sales, there will remain a substantial collection of art" (UPDATED)

The Future of the Rose Committee issued an interim report today. The Boston Globe's Geoff Edgers has the story.

UPDATE: You can read the report here.

"Notably lacking has been a research tool for responding to claims by a foreign government that it owns specific works of art"

The Art Newspaper's Martha Lufkin reports: "The International Foundation for Art Research (IFAR) has launched a website compiling foreign cultural property laws and other information affecting the ethics and legality of transferring cultural property. The resource also creates a database of catalogues raisonnés for artists."

Dali Theft

From a Dutch museum today.

There Ought To Be A Law

The Art Market Monitor anticipates some art-related special legislation.

"I think that copyright comes into conflict with critical discourse"

At the press preview for the Met's new "Pictures Generation" show, Lee Rosenbaum talks to curator/critic Douglas Crimp -- and sneaks a little art law into the conversation:

"Q: How does this show relate to the Shepard Fairey controversy?

"A: These were among the artists who tested the copyright laws and the whole notion of appropriating images became a kind of discourse, so younger artists could pick up on it very easily.

"Q: Do you think the Fairey controversy is making a mountain out of a molehill, because we've already established the appropriateness of this type of use by artists?

"A: No, because copyright is still a huge legal issue. I myself have huge issues with the notion of 'fair use'---whether or not a critic should be able to publish an image without having to pay huge rights fees or, for that matter, to clear the text with the estate of the artist to make sure that they control what can be said. I think that copyright comes into conflict with critical discourse."