More Art of the Steal Reax

Heather Hope, who has excellent taste (see last bullet point), says, of The Art of the Steal: "I hated this movie and don’t recommend that anyone see it." Why? Because "it’s completely one-sided," an "ill-conceived gem of propaganda."

And Kevin Murphy -- who's a Democratic speechwriter on Capitol Hill -- says the movie "gradually becomes so grossly one-sided in its telling that it skips right over myopic and naive and ends up feeling downright corrupt." The whole thing is worth reading, but some highlights:

"I would also argue there's a world-historical eminent domain question here that should at least be addressed. Albert Barnes may have been a Great Man, but...Mistah Barnes, he dead. ... He's as dead as King Tut, who probably would not have signed off on what Howard Carter et al did to his tomb. ... And, speaking of which, there's a reason why Indiana Jones' usually undisputed refrain is, 'It belongs in a museum!'

"You may disagree, of course, and think that Barnes' will should be held inviolate from now until the End of Days -- Ok, that's cool, we disagree. But a good documentary would at least entertain this obvious opposing argument. . . . [I]n its final half-hour or so, Art of the Steal just fulminates and rages, barely making any sense at all. It accuses City officials of enacting an elaborate and corrupt scam on the people, and then depicts County officials, as well as the area's GOP Congressman, as if they're pure art lovers or something. . . .

"[T]he movie generates so much heat in the end that the light is lost. At one point, Governor Ed Rendell says the move of the collection to Philadelphia just seemed like an easy call to him, and after watching this documentary, I didn't see much to disqualify that claim. Other than following verbatim the will of a man with no heirs who's been dead for fifty years, what were the reasons again for keeping the collection in Lower Merion?

"In choosing to be a one-sided screed rather than an in-depth exploration of the subject at hand, Art of the Steal does its very interesting topic no favors."

Linkage

• Unauthorized readymades?
• Money trouble at the Detroit Institute of Arts.
• The fight over Marc Dreier's Warhols.

"These paintings are too good to be quarantined at an anachronistic and ineffective institution in Merion"

Artnet's Walter Robinson: Free the Barnes 800.

"Officials of the failed Fresno Metropolitan Museum say they hope to auction off most of their art collections by October"

"Walter's announcement suggests that the Met doesn't anticipate legal challenges to derail its efforts to sell the collection and use the proceeds to pay creditors." This is what happens when we let them fail.

"A powerful example of the altlaw in action" (UPDATED)

Sonia Katyal and Eduardo Peñalver -- authors of Property Outlaws -- make the case for Shepard Fairey as a heroic intellectual property "altlaw" -- i.e., someone who pushes the boundaries of what the law allows.

Sergio Muñoz Sarmiento responds here.

One question I have is: what if he loses? That is, Katyal and Peñalver argue that "if the law is to avoid being completely captured by the expansive claims of intellectual property owners, it needs more plaintiffs--and more cases--that enable courts to clarify the boundaries of fair use for the future." But doesn't that assume that courts will always clarify the boundaries in the direction or more fair use? Did Rogers v. Koons, for example, result in less expansive claims of intellectual property owners? What if (just for the sake of argument) the Fairey court holds that you can't make use of another's photo -- under any circumstances -- unless you get a license? That certainly would help clarify the boundaries of fair use in the future, but not in a way that makes the law less captive to the claims of IP owners.

UPDATE: Randy Kennedy in Saturday's New York Times: "Artist Looks to be Legal."

Linkage

• Lucky week for recovering stolen art.
• Top 5 art theft articles.
• Green Day art infringement suit.
  

"A momentous, elating acquisition that makes us all proud"

MoMA has acquired the @ symbol into its collection: "Being in the public realm, @ is free. It might be the only truly free—albeit not the only priceless—object in our collection."

More Minor

Courthouse News Service: "A finance company owned by Bank of America demands that Christie's auction house and the Paul Kasmin Gallery turn over more than 100 artworks that belonged to CNET founder Halsey Minor - or the money from selling them. ML Private Finance says it holds a $21.6 million judgment against Minor."

For more Minor art litigation, see here and here.

"What often gets lost in the emotional Barnes debate . . ."

". . . is that judges regularly toss out trust restrictions and substitute new provisions that probably would have appalled the original benefactors."

How about "The Section 11 of the Indenture Foundation"?

Ed Winkleman watched The Art of the Steal and came away searching for a new name for the Barnes (he considers, among others, "The P.A.L. Foundation (for Pew Charitable Trusts; the Annenberg Foundation; and The Lenfest Foundation)").

He also says that "no one who watches this film could possibly imagine that the central Philadelphia location is anything Dr. Barnes would want his name attached to. It's the exact opposite of what he was very, very careful to put into his will as to his wishes for how his efforts should be remembered." It is in fact true that no one watching the film could possibly imagine that, but it's worth noting again in this connection Barnes chairman Bernard Watson's claim that the central Philadelphia location "was, in fact, anticipated by Section 11 of the Barnes Foundation Indenture," which includes the following:

". . . should it for any other reason become impossible to administer the trust hereby created concerning said collection of pictures, then the property and funds contributed by Donor to Donee shall be applied to an object as nearly within the scope herein indicated and laid down as shall be possible, such application to be in connection with an existing and organized institution then in being and functioning in Philadelphia, Pennsylvania, or its suburbs" (emphasis added).

File Under "You Can't Win"

"City of Fresno Catches Major Heat for Trying to Save Its Metropolitan Museum."

And Many Moore!

Adam Jones of the Tuscaloosa News: "It’s been five years today, March 18, since the University of Alabama sued alumnus and sports artist Daniel Moore for trademark violations and Moore countersued for damaging his business. If a child were born that day, he’d start kindergarten in August."

NYT on Rothschild Foundation

The New York Times had a story today -- on the front page, no less -- on the Judith Rothschild Foundation. The headline is "Foundation Promotes Art as Well as Sole Trustee." The Charity Governance Blog's Jack Siegel says: "That headline and the story [suggest] scandal. Sorry, we don’t see it. An ideal governance structure? Absolutely not, but we see little to suggest that the sole trustee ... has done anything wrong."

Salander to Plead Guilty

Says the NY Post.

There Will Be More Moore

Sports artist Daniel Moore's appeal in his lawsuit with the University of Alabama has been reinstated. Background here.

"Nobody viewing the movie should be under the illusion that they are getting a balanced representation of the issues and facts"

It seems that Gary Steuer -- the Chief Cultural Officer for the City of Philadelphia -- is a blogger, and today he has a post on the Barnes move. Because of who he is, I'm sure the Usual Suspects will dismiss his arguments out of hand, but it would be more interesting if they bothered to respond on the merits. Among the points he makes:

• "If Dr. Barnes's commitment was to education and the use of the collection to educate people about art ... isn't there a great value to being located in a facility that is much more easily accessible ...?"
• The new building "maintains the exact same arrangement of art in rooms of the same dimension, with windows and doors in exactly the same locations, and even with view through the windows onto a bucolic landscape being replicated."
• "The prohibition on lending work or removing it other than for conservation will also be maintained."
• "Because the intimate dimensions of the rooms will be preserved, there will still need to be limitations on the volume of visitors that can be accommodated per hour, but because the new building will be open many more hours than the Merion site, ... many more people will be able to access the Barnes collection than are now able to."
• "The new building will create gallery space for temporary exhibitions, which the current building lacks. ... Temporary exhibition space will allow for fascinating curatorial exploration of the Barnes collection, mounting of exhibits that might illuminate the context of the man, the art and the times ...."
• The city "is putting no capital money into the project, and has made no commitments to providing operating funding."

As I've said before, even on a worst-case interpretation of how we got here (i.e., there was a dark conspiracy to "steal" the collection), it's really hard to see the move as some sort of catastrophe.

Still More Linkage

• Arrests in Dutch art theft.
• Stolen Gris recovered by FBI.
• Disputed Lloyd Webber Picasso to be sold at Christie's.
• "A cautionary tale."

Linkage (Gardner Heist 20th Anniversary Edition)

• Randy Kennedy.
• Derek Fincham.
• Interview with Ulrich Boser, author of "The Gardner Heist" ("If I were to speculate -- and this is raw speculation -- I believe these paintings are most likely in the Boston area, most likely the thieves have lost control of them, and maybe hid them away in an attic somewhere").
• "Twenty years without a clue."
• Providence Journal.
• AP ("It remains the most tantalizing art heist mystery in the world").

Linkage

• Artist sues gallery.
• Father sues son.
• Salander update.
• Legal fakes.
• Should fashion be protected by copyright?

"The museum was less secure than the average 7-Eleven or bank that night"

Ulrich Boser thinks the Gardner theft was "probably a local job carried out by common thieves who knew the paintings were valuable and that security at the Gardner was relatively lax. ... According to a previous [Boston] Globe investigation, the Gardner was equipped with only one alarm button and two young guards."

"The naïve claim of someone who still believes in Santa Claus"

Adam Lindemann defends the New Museum. (Background here.)

"Mockery and disdain - not legal action - are in most instances the proper response to plagiarism when it is suspected"

Jim Johnson on plagiarism.

You thought I was hard on "The Art of the Steal"?

The Charity Governance Blog's Jack Siegel takes it to the woodshed: "Unfortunately, the film, with all of its arrogance and hypocrisy, falls way short, doing nothing to advance the ball." Some highlights:

• "The makers of the Art of the Steal assume government officials, the local foundations, and the big hitters had an obligation to the Barnes Foundation and Dr. Barnes’ mission. That’s where the non-sequitor exists. The Pew Charitable Trusts, the City of Philadelphia, and the State of Pennsylvania had funds available to rescue the Barnes Foundation from its financial plight. None of these potential funders were obligated to use their funds to further Dr. Barnes intent. They played hardball, which was their right since it was their money that was being used or raised to rescue the collection."
• "The law is very clear in how it deals with donor intent. So long as the donor’s vision is viable, the law will respect and protect the donor’s intentions, but the law will step in when the circumstances thwart the donor’s intentions by making it impossible to carry them out. The law looks to the doctrines of cy pres and equitable deviation to address the problem. ... That’s exactly what happened in this case. The court did not have the funds to make the impossible possible. Neither did Lincoln University. Those who did have the funds put some condition on the use of their funds. That’s how the world works."
• "For us, the film raises interesting dilemmas about art and society, wealth, individual freedom, and control of heritage. Yet, in an effort to create a permanent, biased, and self-righteous record, the makers of the Art of Steal forgo an opportunity to explore these dilemmas and the contradictions they create."

"There is an opportunity for someone to return the paintings, become a multimillionaire, and remain confidential"

The latest approach to the Gardner heist.

Frigon Again

The Philadelphia Inquirer's Stephan Salisbury reports that the Philadelphia Museum of Art is suing its insurer to recover for the loss of two paintings it had consigned to the now defunct Salander-O'Reilly Galleries. Two things to note.

First, as we all know, the two works the museum was trying to sell -- Maurice Prendergast's The Harbor and Arthur B. Davies' Mountain Landscape -- were of course held in the public trust by the museum, to be accessible to present and future generations.

And second, this appears to be a repeat of the Frigon case from a few years ago, in which a federal judge in Illinois held that an "all risk" insurance policy covered conversion by a gallery of consigned works. That decision was in Jan. 2007. The museum consigned the two works at issue here in late 2006.

Do they ever stop wringing?

Kenneth Turan's generally positive review of "The Art of the Steal" ("Even if you believe that the art should stay where it is, it's hard not to wish that director Don Argott had made the film somewhat more balanced") refers to a 2004 piece by Roberta Smith -- written right after the court had approved the move -- that's really worth reading in full.

She begins by noting that the decision "has met with the usual wringing of art-world hands," but goes on to argue that "the gains may ultimately outweigh the losses." She says "the decision is a triumph of accessibility over isolation, of art over the egos of collectors and, frankly, of the urban over the suburban" and adds:

"The Barnes collection is not the Sistine Chapel ceiling. Barnes didn't make the art; he bought it, one movable object at a time. Very few things remain the same forever .... Our perceptions of artworks shift when the setting changes .... But that is one of the exhilarating things about art objects: different things can be learned from them as they move from one context to another. And most of them, after all, were originally built to move."

And one more great passage:

"[The Barnes] has been mismanaged to the point of dissolution and fought over to the point of dysfunction. It is so overburdened with restrictions - on the display of paintings, on loans, on attendance - that it has become a kind of fetish, a monument to an oppressive vision that is frozen in time, holding the art hostage. In short, the Barnes had become too much about Barnes and his vision and not enough about the art and the people who needed to see it. It seems likely that a move to Philadelphia ... could correct this imbalance to the benefit of every constituent."

As I say, read the whole thing.

Edelman Suit

Reuters: "Asher Edelman, a former corporate raider who became an art dealer, has been sued by Emigrant Bank for more than $3.1 million after allegedly defaulting on some loans, including one to buy a sculpture by Alberto Giacometti."

Polaroid Collection Update

Interesting report in The Art Newspaper: "A group led by a former US magistrate judge has launched an 11th hour campaign to prevent the auction of photographs from the Polaroid collection." The group is said to be "working towards filing a motion for a rehearing at the Minnesota bankruptcy court that awarded sale rights to Sotheby’s last August." The works are scheduled to be sold at Sotheby's in New York in June.

The former magistrate judge -- Sam Joyner -- "believes that both the Delaware Bankruptcy Court that awarded transfer of the Polaroid Collection in 2002 and the Minnesota Bankruptcy Court that approved the Sotheby’s sale in 2009, 'acted without full knowledge of the restrictive language in the many and varied licence agreements'." He says "I don’t think that the number of these licence agreements was presented to [the Judge] as fully and completely as it should have been. We hope to provide them with that full knowledge. There are hundreds of photographers, and thousands of images involved."

Sotheby's responded: "On August 28, 2009 the federal bankruptcy court in St Paul approved Sotheby’s auction of approximately 1,200 works from the Polaroid Collection. Public notice of the hearing was given in the national media, and the hearing was well publicised. This order was not appealed and now has become a final order of the United States Bankruptcy Court."

And a reminder (and a call to action) from A.D. Coleman: "We should all keep in mind that, even assuming the auction by Sotheby’s goes through as planned, it includes only 1260 works out of an inventoried total of 15,936. That leaves 14,676 still in the hands of the court-appointed trustee, John R. Stoebner, for disposition. His job is to raise as much cash as he can, as quickly as he can, to settle the debts Tom Petters left in his wake. It’s a safe bet that Stoebner would much prefer to sell that entire collection, quickly, to a single buyer, and is prepared to negotiate. ... In short, we need to help the trustee find this collection — complete as is, or minus the auction selection but otherwise intact — a good new home."

See here for background.

Leibovitz Latest

Randy Kennedy in the NYT: "The photographer Annie Leibovitz ... has reached an agreement with Colony Capital, a Los Angeles firm, to help her restructure her debt .... Under the deal, Colony — which manages about $30 billion in assets, mostly in real estate — will become Ms Leibovitz’s only creditor .... Ms. Leibovitz averted a foreclosure last summer after she missed a deadline to repay $24 million in loans she owed to Art Capital Group .... Colony, which also controls the rights to the Neverland Ranch in California, ... plans to manage sales of Ms. Leibovitz’s photographic holdings and pursue other business ventures for her so that she can concentrate on her career."

Felix Salmon says it's a smart move for Leibovitz: "[Colony's] unlikely to start foreclosing on her assets in the way that Art Capital is prone to do. Technically, this is a debt deal: Colony has bought Art Capital’s loan. But my guess is that Colony is looking at it more like an equity deal: they expect to work with Leibovitz to start generating an income stream for both of them which is going to last more or less indefinitely."

Suit Under the Indian Arts and Crafts Enforcement Act

Here.

For more on the Act, see here.

On Outlaws

I've been meaning to mention Sonia Katyal and Eduardo M. Penalver's Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership, and I now see that they've posted the introduction online here. Here's the abstract:

"Property Outlaws puts forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.

"The authors employ wide-ranging examples of the behaviors of 'property outlaws' - the trespasser, squatter, pirate, or file-sharer-to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of 'property outlaws' and legal innovation should be cultivated in order to maintain this avenue of legal reform."

Off the Wagon

I know I said I would take a break from "The Art of the Steal," but a few interesting pieces appeared over the weekend that are worth noting.

First, in the Philadelphia Inquirer, Barnes chairman Bernard Watson says the film is an example of "voodoo history": "The film would have the public believe that the Philadelphia philanthropic community, the Barnes' trustees, the Commonwealth of Pennsylvania, the Philadelphia Museum of Art, and The Inquirer itself, were all engaged in a conspiracy hatched well over a decade ago to 'steal' the collection . . . ." But: "As has always been the case, the collection belongs to the Barnes Foundation, and no one else. You can't 'steal' something that you already own."

He concludes: "One thing is perfectly clear. You can never influence the opinion of those who would prefer to believe in a 'vast conspiracy' rather than face reality. The Barnes Foundation was on the brink of bankruptcy, and those who came to its help do not deserve to be vilified, but should be praised for their extraordinary public service."

Also in the Inquirer, classical music critic Peter Dobrin, who believes that "something will be lost" in the move, nevertheless labels the film "documentary-as-propaganda": "The aim here isn't balanced exposition so much as a sharp elevation of the viewer's blood pressure." (He later points out that "the menacing music is more appropriate to an exposé of a military junta than the moving of an art collection.") And he notes some of the many contradictions in the movie:

"The Art of the Steal rails against the commercialization of art, yet repeatedly marvels at how many billions of dollars the Barnes Foundation is worth.

"The film bristles at the power and elitism of the Art Establishment. Opponents of the Barnes' move to the Parkway, however, manage to come across as just elitists of another stripe.

"Talkers state their case as one that unfolded with the media asleep at the switch. Yet they repeatedly rely on facts uncovered by - the media. Without slow pans across newspaper clips, half the film's suspense would drain away."

He also says "I would never rate one kind of art-viewing experience as superior to another, yet this film presumes a hierarchy of experiences - Barnes acolytes get moral authority, everyone else not so much." (Some related thoughts here.)

Finally, the Washington Post's Philip Kennicott uses the film as a springboard to examine the issue of one-sided documentaries generally. First, here's how he summarizes the history that led to the move:

"The Barnes indenture ... was fatally misconceived, with crippling limits on how his money could be invested. Quixotic and even irresponsible management drove the foundation near the point of insolvency, which is when Pew and other foundations stepped in. Working with the Barnes Foundation board of directors ... the groups helped save the foundation from financial ruin. But they're also helping with a move into a new home under construction on the Benjamin Franklin Parkway, where it will be more accessible (scheduled to open in 2012)."

He then moves on to the question of what documentary filmmakers owe their viewers in the way of balance. He quotes the film's director, Don Argott, as saying "we never positioned ourselves as people who were hostile and had any agenda," and says in reply:

"But his film is hostile and has an agenda. It uses a well-developed set of polemical techniques -- ominous music, imputations of dark motives, ad hominem interviews -- to connect only the dots that make its case. . . . In many cases, films about evil -- genocide, torture, bigotry -- don't include 'the other side' because the other side deserves no hearing. Argott's film is different. There is another side that needs to be heard, and the truth of the larger Barnes drama lies between them."

More on Charitable Deductions

GW lawprof Sarah Lawsky on Obama's itemized deduction proposal:

"Won't this proposal reduce charitable giving? The short answer is: almost certainly yes, though the degree to which it would do so is debated. The Center on Budget and Policy Priorities, for example, thinks the effect would be small; others are more concerned. Jon Bakija and Bradley Heim, How Does Charitable Giving Respond to Incentives and Income? Dynamic Panel Estimates Accounting for Predictable Changes in Taxation, discusses the more general question of the price elasticity of charitable giving."

Daniel Grant recently discussed this issue at the Huffington Post.

The Economics of Fakes

Mark Durney had an interesting post on the subject over the weekend, with links to David Gill ("forgeries have corrupted collections for centuries") and Bruno Frey ("the harmful effects of fakes are small and mitigated by emerging institutions (guarantees, sellers with reputation)").

More Fresno Fallout

The Fresno Bee reports: "The son and daughter-in-law of famed nature photographer Ansel Adams have filed a civil complaint in Fresno County Superior Court to prevent six of Adams' prints from being auctioned off by the Fresno Metropolitan Museum."

The background: "The Met closed in January and already has auctioned off tools, office equipment and other items to raise money to pay creditors. An art auction is planned for a later date. . . . Museum officials have said proceeds from the two auctions will go toward paying the Met's debts, estimated at about $4 million."

Gardner Theft News (UPDATED)

The Boston Globe: "On the eve of the 20th anniversary of the theft of masterpieces from the Isabella Stewart Gardner Museum, the FBI is resubmitting evidence taken from the crime scene for DNA analysis in hope of gaining a long-sought break in the case."

UPDATE: Some thoughts from Art Theft Central's Mark Durney.

Steal Away

I ran into a friend, and loyal reader of the blog, this morning, who immediately said: "Okay, okay, we get it: the movie isn't any good!"

Point taken, and so let's take a break from The Art of the Steal for a while (though I reserve the right to come back to it if someone has something especially interesting to say about it). How about a little more on the Gaylord fair use decision (mentioned last week here)?

Pitt's Mike Madison says: "The standard for 'transformativeness' that I extract from Campbell v. Acuff-Rose Music is whether a changed message based on the original work 'reasonably could be perceived.' Has the Federal Circuit ... substitute[d] its own artistic sensibility, and its implicit skepticism that a photograph of a three-dimensional object ever could be transformative, for that of an audience of reasonable stamp-buyers?"

In the comments, Marquette's Bruce Boyden says the fair use issue "is difficult, particularly under existing law. 1) There are lots of cases out there that seem to suggest that putting an artwork somewhere in the frame is not fair use as long as the artwork is recognizable (the Seven case, the pinball case, Ringgold, Woods, the Devil’s Advocate case). If that’s the test the government loses."

In response to which Madison concedes that "if you follow those fair use cases, then I agree that the doctrinal question is closer than I’ve made it out to be." But he maintains that "the cases themselves, in my view, are almost all badly decided and in some cases badly reasoned."

"It weighs over 100 kilograms which leads us to believe that this is an organised heist, possibly even some kind of artist performance"

The Art Newspaper reports: "A huge banner by the Russian art collective AES+F was stolen last week when technicians at the Witte de With Centre for Contemporary Art in Rotterdam removed the work from the building façade."

"The idea of a 'theft' requires that the 'thing' stolen is actually taken from someone"

Barnes Foundation general counsel Brett Miller has a letter to the editor of the Philadelphia Daily News, in response to their review of "The Art of the Steal." He says:

"The basic allegation of the film ... is that the Barnes collection was somehow 'hijacked' or 'stolen.' The idea of a 'theft' requires that the 'thing' stolen is actually taken from someone. The reality is that the Barnes board remains in control of the foundation; no members of the Pew Charitable Trust, Annenberg or Lenfest Foundation serve on the board, and Lincoln University nominees represent more than a third of the board."

It is strange how it's not enough for some people to say "I disagree with the decision the board made to move the collection to Philadelphia." Instead it has to be THEFT CONSPIRACY ELEVENTY. As Miller points out, the theft-ists' story is that the Barnes board, in voting to move four-and-a-half miles down the road, stole the museum from . . . um, I'm not sure who exactly. The whole thing is kind of incoherent, really.

(I add here my usual disclaimer that I would have preferred to see the museum stay in Merion.)

"Any argument that the Barnes shouldn't move needs to explain how and why Judge Ott arrived at his fateful, wrongful decision. . . ."

" . . . It's a task that Argott has unaccountably side-stepped."

Lee Rosenbaum posts Part 2 of her review of "The Art of the Steal."