Wednesday, September 30, 2009
1. As I've mentioned before, to my mind one of the overarching lessons of the story is the perils of anti-deaccessioning absolutism. The movie mentions that the Barnes art is worth between $25-30 billion. Whether you think the financial troubles at the Barnes were (a) the cause or (b) the pretext for the move (or, if you prefer, theft), those troubles could have been forever solved by the sale of a tiny fraction of the works (without ever going anywhere near the core masterpieces of the collection). Now, if you're going to stick to your position that museums can never sell art (except to buy more art), then you've got to at least accept the possibility that something worse might happen as a result. That's exactly what happened here. Would you rather have 99.whatever percent of the collection in its original location? Or 100% of the collection in a new location?
2. The movie never really grapples with the public-private issue. A number of the talking heads, including Julian Bond, emphasize that it was Dr. Barnes's work so he could do whatever he wanted with it (including limiting the number of days the collection was open to the public, and the number of permitted visitors). But aren't we always told that great works like these are "held in the public trust"? Doesn't it matter at all that many more people will get to see the works in their new location? I'm not saying that the public interest necessarily trumps Dr. Barnes's intent, but it's a difficult question which, as I say, the film just glides over.
3. There's another tension that I think undermines the whole narrative of the film (and all other Barnes-related conspiracy theories). On the one hand, we're told that the Philadelphia Establishment (cue Darth Vader music, boo, hiss) made no bones about its desire to get its hands on the Barnes Collection from just about the moment it opened. But then, any time any objective evidence of that desire is discovered (whether it's a line item in the city budget in 2002, or a reference in a tax filing by the Pew Charitable Trust, or a conversation involving Governor Rendell in the mid-90s), we're supposed to see it as establishing some kind of secret conspiracy to snatch the collection. We know the powers-that-be wanted to move the Barnes to Philadelphia because they succeeded in moving it. So why bother with all the conspiracy theories? (But see again point 1 above. If it weren't for the Barnes's constant financial troubles, their evil plot to bring the collection to a wider audience could not have succeeded.) I discussed the "secret" budget-appropriation and Pew tax-filing points a couple of years ago here.
I'll stop there for now, and also recommend Richard Lacayo's five-part series on the subject (start here) and Julia Klein's piece in the Wall Street Journal yesterday.
"That is less drastic than the 28-percent limit proposed by President Obama. But a coalition of nonprofit leaders this week sent a letter to Mr. Baucus opposing the amendments, saying they would create a disincentive for charity’s biggest donors during a 'tough charitable giving environment.'
"'Charitable organizations are dealing with enormous financial challenges stemming from the economic downturn,' says the September 21 letter, which was signed by representatives of 14 groups including the American Association of Museums ...."
"Last week the Mexican government trust that controls the copyright to Kahlo’s work filed a criminal complaint against [the works' owner], a measure aimed at investigating the works. The trust is also investigating legal recourse in the United States to halt sale of [a book published by Princeton Architectural Press about the works]."
David Nishimura says: "Just from reading the article, it's obvious that the 'discovery' is an audacious but incompetent exercise is fakery -- yet the writeup is pitched as if there is a real debate about the material's authenticity."
"The painting came with a certificate of authenticity from the Comité Chagall -- a French group recognized as the ultimate authority on Chagall's works. But in January 2009, the group told Glass that both the painting and certificate were fake, the suit said."
The Fair Use Project's Anthony Falzone reacts here.
"The art rustlers threw a rock through the front window of Gallery Gevik just after 1:30 a.m., picked up the three paintings -- worth as much as $60,000 -- and fled the ritzy downtown neighbourhood before the cavalry arrived in response to the security alarm that was set off."
Mark Durney: "Because this theft appears to be so basic, it would not surprise me to find that an individual from the Toronto area stole the paintings to simply pay for his own 'fix.'"
The Art Market Monitor thinks the story "contradicts much of what the experts tell us about art thefts, which is that they are primarily crimes of opportunity, not the work of criminal masterminds with shopping lists composed by secretive billionaires." David Nishimura says "it all sounds awfully fishy."
And Derek Fincham wonders: "Why all these [recent] thefts? Is it a product of the economic downturn? Or are thieves hoping to gain some of these lucrative rewards?"
Friday, September 25, 2009
"Controversy over the museum erupted in January, when university officials announced plans to close its art museum and auction parts of its $350 million collection amid heavy investment losses and declining fund-raising. Facing withering criticism from faculty, alumni, and the art and philanthropic worlds, the university quickly pulled back, and Reinharz apologized, saying he 'screwed up.'"
UPDATE: Felix Salmon isn't buying the line that this has nothing to do with the Rose mess: "There’s certainly nothing in Reinharz’s stated reasons for his resignation ('It is now time for me to enter the next chapter of my professional life') which explains what has changed since a year ago, when Reinharz signed [a new] five-year contract."
Thursday, September 24, 2009
UPDATE: Richard Lacayo: "The Art Loss Register estimates the value of the paining at $1.1 million, though it's effective value right now is zero, because stolen paintings by famous names are almost impossible to sell, as the thieves will soon discover."
UPDATE 2: Once again, Derek Fincham takes us through the options. Loosely translated, they are basically: (1) the Dr. No scenario; (2) the thieves are pretty stupid; (3) a ransom play; and (4) the thieves are smarter than we think.
UPDATE 3: Mark Durney: "This art theft raises the question of whether or not museum gallery officers should be armed."
Wednesday, September 23, 2009
"The CMA has used the doctrine of deviation in the past in a responsible way, and there’s no reason to think, given the obvious need even its critics acknowledge, that if it convinces the court to allow it, that the decision would be a precedent for museums everywhere suddenly to act irresponsibly. Nor should we make rules that don’t permit courts to look at individual cases and grant relief from restrictions that are no longer serving any useful purpose just because we’re afraid someone may try to get away with fooling a court into letting them act irresponsibly. As Zaretsky points out, those who fear that allowing the CMA to be released from the restrictions imposed on its use of certain funds because circumstances demand it would create a bad precedent are blind to the fact that the rules that allow precisely that have been around and worked well for a long time."
The NYT's Randy Kennedy pulls out some choice bits, including:
"The committee ... added that [the Rose], 'like many of its fellow university museums, has been oriented too much towards the art world, and not enough towards the academy' and should become more integrated into the university’s educational mission"; and
"As for selling the works, the group wrote that it assumed that whatever decision the university made regarding such sales, there would 'remain a substantial collection of art to be preserved and made available for research, study, and cultivation.'"
Time's Richard Lacayo: "You have to wonder whether the recent upswing in the stock market — if it continues — may make the whole problem go away. Brandeis first announced the museum closing in late January, when the Dow was bobbling around in the 7000s .... This month it's nudging 10,000 again. ... Meanwhile the art market is still not exactly robust, so it remains a poor time to sell. Maybe everybody should just take a deep breath and wait to see whether and by how much the market continues to improve."
And the LAT's Christopher Knight: "The university's administration had long since backtracked on quick implementation of the cataclysmic scheme, approved by trustees last January following a precipitous drop in the school's endowment funds. ... Now, the Brandeis administration's handpicked committee charged with thinking hard about the future of the Rose has essentially put the backtrack in writing. Imagine my surprise."
Tuesday, September 22, 2009
One of the report's two "central recommendations" is that "the Rose Art Museum remain the Rose Art Museum. It should remain what it is and what it has been since its beginnings: a university art museum open to the public." It recommends that the university "communicate as loudly, clearly, as often, and in as many ways as possible that the Rose is not closing" (emphasis added). It says "the Provost's interim staffing announcement on April 17, 2009 affirmed the University's intention to maintain the Rose as a museum open to the public" and that "other University announcements have reaffirmed this commitment" (my emphases again).
Not everyone's gotten the message, however. As we've seen, there is a lawsuit out there seeking an "Order declaring that Brandeis may not close the Rose Art Museum."
Monday, September 21, 2009
"The audience may enjoy buying into the one-sided account offered in the film, which seduces us by offering a kind of Frank Capra melodrama in which money-grubbing philistines defeat pure-hearted art lovers who wish to honour the memory of Barnes (who died in a car crash in 1951). And so we are presented with a nasty group of Philadelphia power brokers ganging up to snatch the paintings away from the true followers of the Barnes vision in Merion. I might have been seduced by this version of events had I not had a chance to see the Barnes Collection at its original home in Merion last year. My conclusion: In Merion there are so many obstacles that only a tiny portion of the people who would enjoy this experience can do so. A major flaw of the movie is that it doesn't give a fair presentation of the very strong case for the move to downtown Philadelphia – where, incidentally, the conditions of the Merion site will be exactly recreated, so that the paintings will hang just the way Barnes specified. In my view, it's entirely plausible that some of the people involved in orchestrating the move are tainted by the Philly cultural world's history of back-room deals, influence peddling and dirty tricks. Perhaps you could even say that Philadelphia's super-rich, too used to getting their way, trample on anyone who dares to get in their way. Nevertheless, in the case of the Barnes collection, moving it downtown is the only solution that makes sense. The residents of Merion don't want hordes of visitors who bring traffic and parking problems. The upshot: access is so limited that most give up trying to get in. Instead of being savoured only by privileged local residents, teachers and former students of Barnes, shouldn't these works be made available to people all over the world who want to see them?"
Philadelphia Inquirer movie critic Stephen Rea, on the other hand, says the filmmaker makes "a persuasive case" that a "circle of Philadelphia movers and shakers ... orchestrated the Barnes' move from leafy Latchs Lane to new digs just blocks from the Philadelphia Museum of Art" (though he does add that the "film also touches on an inherent problem with the Friends of the Barnes' keep-it-in-Merion movement - namely, that after years of the Barnes' being a jewel-box museum with a severely restrictive admissions policy, its doors were opened in an effort to raise much-needed cash. Tour buses and cars started rolling up and down the street, and the neighbors were not pleased. In some ways, the NIMBY-ism of Merion residents served as a catalyst to decamp the Barnes").
Thursday, September 17, 2009
He's generally sympathetic to the museum's position -- "Clearly the museum has to do something. Nobody could have anticipated the events of a year ago, and [the museum's director] and his colleagues make a compelling case that the museum has to move forward with its expansion plan rather than mark time" -- but he suggests an alternative solution:
"If these restricted funds are, indeed, the museum's only financing option, then treat them like an individual's 401k, a resource that can be tapped only under specific conditions, but can be borrowed from on occasion. In other words, the museum should announce that while it would still use the interest income from these restricted funds for ... its expansion plan, it would agree to repay that money over a set period of time once the building program was complete."
I want to focus on a different point, however. Gibson worries about "the precedent this could set": he says "you only have to look at how museums have played fast and loose with the deaccessioning rules over the past several years despite AAMD's restrictions to worry about what they might do if given an opening to finesse the rules governing restricted endowments" (my emphasis).
But the museum's actions here don't "give" anyone an opening. That opening already exists, and always has. The doctrine of deviation, upon which the museum relies, has been around forever. If the court grants the museum's application, it won't be creating an opening that other museums will then come rushing through, but allowing it to pass through an opening that was always there.
In fact, as I mentioned in an earlier post, an Ohio probate court already found that income from three of the four funds at issue in this case could be used to fund a previous expansion by the museum. So the "opening to finesse the rules" has existed for this very museum with respect to these very funds for more than 50 years. It seems safe to say they haven't exactly been abusing the privilege. Once again, the people who run our nation's museums are not naughty schoolchildren who need to be penned in by simple, black-and-white rules.
Lee Rosenbaum makes a similar point (similar to Gibson's, not to mine). "Cleveland's actions," she says, "unchecked, would set a dangerous precedent that could have a negative impact on future benefactions, just when museums need help the most." But again: Cleveland is not setting a precedent here, it's following one. Given the existence of the doctrine of deviation, no donor -- in any context -- can ever know with certainty that the terms of their gift will never be altered. Yet donations somehow continue to happen.
Consider, in this connection, the four funds involved in the Cleveland case. As I mentioned above, the probate court ruled in 1955 that income from three of those funds could be used to help complete an expansion of the museum. Among the museum trustees who (according to the museum's current board chairman) "encouraged the museum to go forward with its suit to use acquisition funds for the expansion" was one Leonard Hanna.
The donor of the fourth fund at issue in the current case? Leonard Hanna.
Wednesday, September 16, 2009
Tuesday, September 15, 2009
"In general, the enforcement of gifts to charities lies with the attorney general of the state in which the charity is located. 'Based on the traditional rule that enforcement of charitable trusts is reserved to the attorney general, donors and heirs of donors usually are denied standing to sue for the enforcement of such trusts. Having made a gift for the benefit of the public, a donor is viewed as having no stronger claim to that gift than any other member of the public' (Marie Malaro, A Legal Primer on Managing Museum Collections, p. 26)."
Jack Siegel had a similar take.
Today, the Brandeis Justice's Alana Abramson reports that Brandeis has moved to dismiss on precisely those grounds. I had a chance to look at the motion papers, and the argument is very straightforward. "Time and again, Massachusetts courts and the Legislature have rejected the notion that donors or their heirs have standing ... to enforce their vision of how a charitable organization should operate. The authority to supervise charities in this way is reserved exclusively to the Attorney General." The plaintiffs here have "no standing to represent the public interest" or "the presumed wishes of other donors." At most, if they have any standing at all, "it is limited to contract-like claims with respect to their individual gifts" (p. 8).
Expanding a bit on the latter point, the university says that "donors may have rights ... to seek a return of their gifts, but this right is quite different from the power reserved to the Attorney General. A donor's reversionary right to his gift exists, if at all, for his particular gift. It does not entitle the donor to insert himself into the governance of the charity" (p. 11).
Strictly speaking, the motion does not (at this point) seek dismissal of the entire complaint. Instead, it requests dismissal of all claims "except insofar as they allege claims with respect to [these four plaintiffs'] own individual gifts" (p. 20). But as a practical matter, the granting of the motion would mean the end of the claims seeking to prevent the "closing" of the Rose and the sale of "any artwork."
"Why is preserving every single object ever entrusted to it a higher priority than keeping the museum open?" (UPDATED)
"The role of the museums as stewards of our cultural and historical legacy is undisputed and deserves the great respect it enjoys. But a balancing of priorities is in order -- placing the viability of the museum and its programs on at least an equal footing with the collection. Why not make it ethical for a museum to weigh priorities and make difficult choices without fear of condemnation and ostracism?"
UPDATE: The piece is now online. See here.
Monday, September 14, 2009
"The film is sharp in every way, from the crisp visuals to the brisk editing and lively musical backgrounding"
The Art Market Monitor points out that "there remains a fundamental conflict between the emphasis on art as being held in the public trust and honoring donor intent." Indeed. Suppose I donate a painting to a museum and expressly stipulate that it is my intent that the work be exhibited for exactly 10 years and then sold, and that I further intend that the sales proceeds be used to (as the anti-deaccessionists like to say) "pay the electric bills." What then? Is the intent of the donor enough to trump the public trust? (Not a very robust conception of the public trust then, is it?) Not to mention that the Barnes Collection will remain in the public trust (and, if you measure by the number of people who will get to see it, will be even more in the public trust than it was before).
Of course, as I've argued before, a little bit of deaccessioning (just a smidgen, really) could have saved the Barnes.
"I'm still clinging to my tentative conclusion that whatever Fairey copied was the unprotectable 'fact' of Obama's face (which of course would render the fair use analysis unnecessary). But I think this is a hard case, and I remain persuadable. ... [C]opyright in photographs presents some very difficult conceptual questions of how to separate idea and fact from expression. See, e.g., the Ninth Circuit's two opinions in Ets-Hokin v. Skyy Spirits, here and here. It may seem anomalous, but I think Fairey is actually on stronger ground with an 'I didn't copy protectable expression' argument than with a fair use defense. Assuming arguendo that he did copy the AP's (or Garcia's) protectable expression, I'm not terribly sympathetic with a fair use argument here. Yes, he added to the political discourse. But that's not an unlimited license to infringe. There's a vibrant market for licensing AP photos, and (though I may have missed it), I haven't read anything suggesting that the AP (or Garcia) wouldn't have granted Fairey a license at a reasonable price. This is not an example of criticism or parody, where the copyright owner wouldn't grant a license for mockery of his work at any price. Why not let the market work?"
Sunday, September 13, 2009
Noah Charney thinks the works were probably stolen for the reward money:
"The most probable outcome of this situation is that a 'well-meaning' informant will call in a lead that will bring police to the stolen art. Once the art is recovered, the good samaritan will be paid the reward. Likely in cases such as this, the call that leads to the recovery of the art will come from a colleague of the thieves. The reward will therefore be distributed among the thieves via the informant. For a few hours’ legwork, the thieves will have stolen art, abandoned it, had a colleague call in the location to the police, retrieve the reward, and pocket it."
Saturday, September 12, 2009
"Richard Love, a charismatic art dealer with a prominent Michigan Avenue gallery, has been sued before"
"Look around and you see galleries struggling, museums cutting staff, universities reducing art resources and nonprofits treading water"
"What can universities be thinking? They exist to support and protect exactly what their museums are doing: shaping the history of the future. If they shut down such training facilities, they shut down the future. If they shut down the future, they violate their mission. And when they do that, my wish list turns into a demands lists, with one thing nonnegotiable: stop."
He also says "if you want to find innovative models for small-scale shows with big ideas, teaching institutions are still the place to look, particularly university art museums. This is where spadework research is being done, and where young curators are learning to create, experimentally, visions of history through objects."
And my question, with respect to the Brandeis situation, is the same one I had when Cotter made a similar point back in February: why can't this be true of the new, "re-purposed" Rose? Why can't it be a place for small-scale shows with big ideas, a place where spadework research is done, and where young curators learn to create visions of history through objects?
Friday, September 11, 2009
UPDATE: More from Art Theft Central.
UPDATE 2: Derek Fincham runs through the possibilities. Judith Dobrzynski has some background on the victimized collector.
UPDATE: Interesting point from Jim Johnson: "The editors at The Times finally have filed this story in the Arts section. This is a tale about the political economy of the photo industry and how treacherous that terrain can be. But the Arts and artists hardly stand aloof from such pressures and it is sheer ideology to present the world as though they do."
Thursday, September 10, 2009
"Of particular interest to Philadelphia-area residents, and art lovers the world over, is Don Argott's The Art of the Steal, a conspiracy theory-documentary about the Barnes collection and its controversial move from Merion to a new site on the Benjamin Franklin Parkway. ... It presents a strong case that a 'cabal' of Philadelphia power brokers past and present - including John Street, Ed Rendell, billionaire Raymond Perelman, the Pew Charitable Trusts' Rebecca Rimel, and the late publishing magnate Walter Annenberg - strategized to defy the last will and testament of billionaire collector Albert C. Barnes, ultimately succeeding in wresting hundreds of Cezannes, Matisses, Picassos, Renoirs, and van Goghs from the eccentric physician-turned-art educator's Foundation headquarters on leafy Latchs Lane to a new spot just blocks from the Philadelphia Museum of Art."
"My proposal has three parts. First, the unnecessary restriction on deaccession proceeds should be eliminated. Second, when an important work of art is deaccessioned, other museums should be given an opportunity to purchase a work - to keep it in the public trust or its region - in much the same way the United Kingdom and other nations regulate the export of works of art. Finally, when any museum is considering a deaccession, it must provide reasons for the sale and publicize the decision to allow for public comment."
Sounds good to me! I look forward to reading the larger piece.
Wednesday, September 09, 2009
Tuesday, September 08, 2009
"I find that hard to understand: it should just take the $569,000 and use some fraction of it to pay off the $3 million over time, spending the rest on art and programming. Or is there some good reason why the museum’s implied discount rate is so incredibly high (over 18%)?"
One of the plaintiffs tells Abramson: "The University is using the line of attack that we don't care about the University, just the esoteric art collection. We are trying to save this piece of Brandeis because it's a crown jewel."
The university's lawyer counters: "It's unfortunate that Brandeis can find itself in a situation that it may have to sell art, but it is doing so for the right reasons. That is the essential truth of this case."
Monday, September 07, 2009
Saturday, September 05, 2009
"as museum director Ronald Nelson mulled over what to do a couple of months ago, he researched the original bond agreement that both parties had assumed laid full responsibility for repayment on the museum foundation -- and says he found the actual language says otherwise. The documents, Nelson says, put the onus on the city to make good on the bonds should the museum's fundraising fail -- and say nothing about the museum foundation having to pay the city back. Given the legalities of the situation, Nelson says, to make any repayment on the bonds now would be a misappropriation of museum funds."
Boehm had a follow-up story in yesterdays' paper. It seems the city agrees "the museum legally was not required to pay back the bond," but they believe the museum promised to do so regardless of what's in the contract. As a result, Long Beach Mayor Bob Foster "has recommended eliminating the $569,000 in support the city normally would pay, noting that the cut is a consequence of the museum's refusal to pay off the bonds."
The "Stalin-esque" idea of selling art to pay off the debt seems to have been ruled out:
"Selling art 'is not a concept that's on the table,' [assistant city manager Suzanne] Frick said. 'I don't think it ever was . . . It was a comment a council member made, never a formal action or discussion.'"
"The lawsuit, filed Aug. 26 in federal court in Detroit, alleges that a Park West appraiser ... conspired with the gallery to destroy the reputation of Fine Art Registry, which is investigating the gallery for alleged deceptive practices. The appraiser is accused of posting false and 'vicious' comments about the registry in a blog."
More on Park West and Fine Art Registry here.
Friday, September 04, 2009
Thursday, September 03, 2009
Wednesday, September 02, 2009
Steve Litt's Cleveland Plain Dealer article which broke the story mentions that "in 1955, ... the county probate court granted the museum permission to use income from art-purchase funds to build an expansion completed in 1958 (since demolished)." But it's worth noting that it wasn't just any "art-purchase funds" in that case; it was three of the four funds at issue in the current case. (The fourth didn't come into existence until after the 1955 decision.) In the earlier case, The Cleveland Museum of Art v. O'Neill (129 NE 2d 669), the court was "convinced that the settlors were persons of broad vision and that in any event they would want the Museum to prosper, to expand and to be able to carry on its work indefinitely. The Court has no hesitancy in saying that under existing circumstances they would willingly deviate from their expressed method of procedure and permit the income from the trusts to be used as prayed for in the petition."
In this case, the museum argues that the expansion project addresses the "need for additional space for the display, care, conservation and presentation of the Museum's collection," will "allow greater access to the Museum's collection, accomodate a broader range of educational activities, and provide improved amenities for the 500,000 plus visitors that come to the Museum every year." It will also "allow the Museum to display on a regular basis a far greater percentage of its outstanding collection," "replace outdated environmental and security control systems," and "allow for the continued expansion of its collection in the future."
(Lee's counterargument is that allowing this deviation "could make benefactors around the country doubt that museums can be trusted to honor their wishes" and "may well give rise to second thoughts by potential donors.")
Two other points worth emphasizing from Litt's article:
1. "The proposal wouldn't erode the value of the art purchase accounts because it would involve using only a portion of the investment income from funds -- not the principal"; and
2. The museum's request "is supported by Ohio Attorney General Richard Cordray, whose office supervises the two endowment funds and two charitable trusts involved, and by Key Bank, which manages the two trusts." Cordray is quoted as saying: "It doesn't do much good to buy art once you run out of space, because you're going to stick it in the basement."
UPDATE: Michael Botwinick, director of the Hudson River Museum, is with Lee: "'Taxing' endowments given for the express and specific purpose of purchasing art is not an acceptable option. The trustees must consider 'taxing' their own resources to finish the building. Failing that they must make the hard decision to suspend, delay or reduce the project, pending funding. It will be embarrassing, unpopular and uncomfortable. But they made this bed; now they must lie in it."