Friday, February 26, 2010

"There can be no denying the public benefit, both for the city of Philadelphia and the general public, of opening the collection to a wider audience"

Mark Lamster in The Architect's Newspaper: "Argott fails to engage or even acknowledge the two central questions the Barnes controversy (and his film) raises. First, why should reasonable people be forced to live with the intransigent intentions of a man who’s been dead for half a century? And second, might the Barnes collection actually be better off in a purpose-built museum in downtown Philadelphia, where it will be far more accessible to the general public, and a boon to that city’s teetering economy."

"Less a doc than a polemic"

Philadelphia Weekly: "[Argott] pushes his argument too hard—so absurdly hard, in fact, that the only sane response is to think it’s not really THAT big a deal. . . . [O]ne of the opening sound bites charges that the Barnes move is 'the biggest act of cultural vandalism since World War II.' Seriously? Barring a miracle, the collection will move 4.2 miles, into a building that will retain its owner’s eccentric layout .... THIS is tantamount to the Rape of Europa? ... The Art of the Steal is riddled with such hyperbole and fuzzy reasoning, and each instance pops yet another tiny hole in the collective argument. No one addresses the pros of the move—that more people would be able to see, say, Matisse’s Le bonheur de vivre, or that it would bring mucho tourism dollars to a city so cash-strapped it nearly closed its libraries. Such are the limitations of the polemic, which like its close cousin, propaganda, aims for the heart first and the head a distant second."

"Is it really 'a tragedy' that lots more people will get to see these paintings?"

Kyle Smith: "This documentary relies heavily on an echo chamber of art writers and teachers, all of whom are outraged by the proposed move, but their ad hominem snark ... and use of derision like calling the new museum 'McBarnes' are more revealing than the filmmakers suspect. The same neighbors are shown first complaining that the Barnes collection draws too much street parking, then fighting the addition of a parking lot, then fighting yet again to keep the collection where it is, where few can see it. Maybe the gentry and art-world snobs are less interested in the details of Barnes' will than in preserving a fabulous secret garden, away from the grubby public."


Indictment in Clementine Hunter Case

The (La.) Independent Weekly reports: "A federal grand jury indicted three people for selling counterfeit Clementine Hunter paintings. William Toye, 78, and Beryl Ann Toye, 68, both of Baton Rouge, and 62-year-old Robert E. Lucky Jr. of New Orleans were named in a four-count indictment that charges all three defendants with mail fraud and conspiracy to commit mail fraud, acting U.S. Attorney Bill Flanagan announced Thursday."

Background here.

What if Barnes's Will called for one work to be deaccessioned every year on his birthday?

The Art Market Monitor:

"Many of the outraged opponents of the Barnes move point to his wishes. Call it donor intent. Any sensible construction of the idea of art as a public trust ... should find Barnes’s dictatorial constraints over the art long after his own death ... to be in conflict with the interests of the public."

"The distortions start with the film's title"

Lee Rosenbaum posts part one of her review of "The Art of the Steal." Some highlights:

  • "No Barnes masterpieces have been 'stolen' ... There was no 'heist.' ... This intrastate transport of masterpieces is surely not 'the greatest act of cultural vandalism since World War II.'"
  • "Perhaps the best metaphor for what happened to the Barnes is 'takeover': The institution fell into stronger hands after being seriously vitiated by mismanagement and further endangered by the then-hostile neighbors who, paradoxically, are now leading the charge to keep it in Merion."
  • "Argott disingenuously told Eric Kohn of the Wall Street Journal that he 'went into this with a blank slate,' when in fact he received his assignment from executive producer Lenny Feinberg, a ... former Barnes Foundation student, who made it clear during the post-screening discussion on stage at the New York Film Festival that he was always intent on an exposé."
  • "The strangest gaffe is the film's heavy reliance on Mark Schwartz for elucidiation of the legal case. Schwartz is identified in the film as an attorney for Montgomery County and the Friends of the Barnes. Unmentioned in the film (and perhaps unknown to Argott) is that both the County and the Friends got Schwartz off the case early---a result of various missteps (including arguments in court that provoked the judge to admonish him), as well as a payment dispute."

Thursday, February 25, 2010

Not So Easy (UPDATE)

I went back and forth this summer with Peter Friedman over the Gaylord postage stamp fair use case. I said it was good example of the unpredictability of fair use decisions. Friedman said that was "ridiculous." Gaylord, he maintained, was an "easy case" of fair use.

Today the Federal Circuit ruled in the case: no fair use.

You can read the decision here.

UPDATED: Friedman reacts to the decision here.

More "Art of the Steal" Reviews

The New York Times:

"As its title suggests, 'The Art of the Steal' is nothing if not agenda-driven, having been paid for by a former foundation student, Lenny Feinberg, who — to quote the movie’s notes — 'initiated, funded and was intimately involved in the making of The Art of the Steal.’ . . . But while its bias enlivens the movie ... it eventually also weakens it. . . . That’s too bad because surely there are more nuanced arguments for the move than those found here, which could only strengthen the documentary, saving it from caricature. At times the fight comes across as a smackdown between art snobs who want to preserve Barnes’s right to exhibit his masterworks however he wanted because, well, he paid for them (a curiously underexamined refrain), and vulgarians who want to turn his patrimony into tourist bait .... What remains unanswered, finally, is the larger question of whether deep pockets ensure custodial rights forever."

The Philadelphia Inquirer

"[A]s a narrative of the facts, it is as one-sided as a plaintiff's brief. Argott simplifies the institution's convoluted, colorful history into stark black and white, smearing villains and cheering heroes. . . . The bad guys are a shadowy 'cabal' of Philadelphia foundations ... conspiring to break Barnes' will and abduct his babies in order to exploit them purely for touristic purposes. The good guys are the Friends of the Barnes, a group that seeks to preserve the collector's babies as he intended, in the villa especially built for them. One would not know from the movie that the so-called bad guys' plan would keep the foundation's holdings intact, maintain its educational mission, and bring Barnes' underknown collection to a greater number of people. . . .

"[T]he second time Drexel professor Robert Zaller, a Friend of the Barnes, is heard insisting that the proposed move downtown is 'the greatest act of cultural vandalism since World War II,' you think: Really? Then the hard question emerges, not from the screen, but in the viewer's mind: Does moving this chronically underfunded collection from its suburban enclave, where there is limited visitor access, to an urban center where it will have a solid endowment and greater public access, constitute vandalism? This viewer answers no: not vandalism. Pragmatism, perhaps, but not vandalism. Rather than tell the whole story of how the Barnes move came about - a Dickensian saga of bad financial planning, worse management, endless lawsuits, and meddling NIMBYs - Argott's talking heads spin a unified conspiracy theory of how Philadelphia money and institutions always had it in for Barnes."

Wednesday, February 24, 2010

Not So Fast

I said yesterday that The Tennessean's report on the latest in the Fisk-O'Keeffe litigation -- under the headline "Door is left open for Fisk to sell Georgia O'Keeffe art," and complete with triumphant quotes from Fisk President Hazel O'Leary ("Those who wait long enough get good news") -- was a little premature.

Sure enough, today brings a very different headline: "Fisk deal to sell O'Keeffe art takes hit."

We learn that "the state attorney general is casting doubt on whether a sale could move forward as easily as Fisk officials had initially hoped." He issued a statement saying that "neither the university nor O'Keeffe's estate in New Mexico should be allowed to move the collection."

As I mentioned last summer, Fisk now has to prove that compliance with the terms of the gift has become "impossible or impracticable." The AG says that, "given Fisk's recent reaccreditation by the Southern Association of Colleges and Schools, the university can no longer argue that the sale of the Collection is necessary to its financial survival."

Daniel Moore Appeal Dismissed

On a clerical error.

For background on what the appeal is about, see here.

Tuesday, February 23, 2010

Fisk Update

I think the headline on this story in The Tennessean ("Door is left open for Fisk to sell Georgia O'Keeffe art") is a little misleading. The Tennessee Supreme Court has declined to hear an appeal of the intermediate appellate court's decision tossing the O'Keeffe Museum from the suit on standing grounds. It seems to me that leaves things where they were when that decision came down this summer, namely:

"As the NYT reports, Fisk 'must still win permission in a lower court to sell an interest in the collection.' And as Lee Rosenbaum points out, they may have gotten the O'Keeffe Museum out of the way, but Tennessee Attorney General Robert Cooper still needs to be dealt with, and he is on record as strongly preferring a solution 'that would allow the Stieglitz Collection to remain in Nashville on a full-time basis.'"

Though, as I pointed out last summer, there is some language in that decision that would seem to support Fisk's plan to sell a share of the collection to the Crystal Bridges Museum.

Monday, February 22, 2010

"No one seeing 'The Art of the Steal' will be left wondering where the filmmakers’ sympathies are"

There was a good story in Sunday's New York Times on "The Art of the Steal," which opens Friday in New York. The key point is one I've made here several times: the movie is a polemic; don't go in expecting even a remotely balanced presentation.

It notes that the project came to the director, Don Argott, "through a former Barnes student named Lenny Feinberg"; that "the title itself ... makes clear what [the filmmakers'] think transpired behind the scenes"; that "some" might describe the film's style as "heavy-handed"; and that "some members of the museum world who have seen the film have ... taken sharp issue with many of Mr. Argott’s conclusions and with the style in which they are presented."

I think Linda Eaton, director of collections at the Winterthur Museum, sums it up nicely: "The film obviously had a message that didn’t reflect the complexities of the issues."

Be forewarned.

More on the question of photographing public art

Peter Friedman has some thoughts on the public art copyright infringement lawsuit I mentioned a couple weeks ago here. He endorses the sentiment that "any scheme that involves paying to photograph seems antithetical to the public interest," and he also thinks the photograph at issue is a fair use "because [it] stands on its own as a creative work. [The photographer] has taken a work embedded in a sidewalk in front of a public building and made it into a beautiful image that evokes both dance and confusion in a world full of complicated instructions seemingly sending us in a myriad of different directions."

Justin Silverman of the Citizen Media Law Project (whose sentiment that paying to photograph is antithetical to the public interest Friedman endorses) has a more thorough analysis of the fair use issue, running through each of the four fair use factors that courts apply, and concluding that, "all in all, ... it's a hard call."

Turning back to the "public interest" question, though, I want to ask: what role does the fact that the work is public play in the analysis? Is it only antithetical to the public interest for artists who make public art to retain copyright to their work? What is it about public art that warrants keeping it "completely open to the public" (i.e., as lacking the same copyright protections that apply to other artworks)? Don't all the same issues regarding incentives to create apply in the case of public art? I just don't see the argument for treating Jack Mackie's sculpture here any differently than the way we treat any other work.

"Is title insurance a solution in search of a problem?"

At the Huffington Post, Daniel Grant takes a look at how art title insurance is faring. He points out that, when it first came on the market, "lawyers and those in the art trade heartily endorsed the concept" (well, not all of them), but now, "several years later, the opportunity to purchase artwork headache-free does not appear to have been picked up by many art collectors or dealers." He notes that the "policies are not inexpensive, costing between one and three percent of the value of the object, and the price is paid up-front, rather than in installments over the course of the policy." And he gets the following quote from Chubb's fine art manager: "the only people who want title insurance are the people who have an impediment to the title of something in their possession, and they are looking to transfer the risk to someone else."

I remain a skeptic.


The Boston Globe reports that "Brandeis University unveiled a series of cost-cutting proposals this afternoon that would eliminate about two dozen faculty positions, several undergraduate majors and graduate programs, and more than a dozen university-sponsored doctoral spots."

The proposals include "phasing out graduate degrees in anthropology, theater design and cultural production," and undergrads "will no longer be able to major in Italian studies and Hebrew, or minor in Yiddish, East European Jewish culture, and Internet studies."

So here's my question. If you knew that those jobs could be saved, and those academic programs kept intact, through the sale of a small number of artworks owned by the University, would you do it? Or is it more important that every single one of those works stays at Brandeis (rather than, say, another museum in Boston)? As I've said many times before (e.g.), what the "no deaccessioning for operating costs" rule does is prevent us from having to face those questions. It keeps us from having to think about the real-world costs of not selling. So again, it may be true that it's more important to have that 220th Eakins in storage than it is to have an anthropology department. But it seems to me that conclusion should have to be argued for, and not just assumed. (Brandeis philosophy professor -- and chair of the Future of the Rose Committee -- Jerry Samet made a similar point here.)

"Like an episode of 'Antiques Roadshow' gone horribly wrong"

The New York Post on a dispute over a $20,000 work by 18th century Scottish artist Sir Henry Raeburn.

"Why is copyright (suddenly) a hot topic for artists?"

Sergio Muñoz Sarmiento considers the question.

Next They'll Tackle the Nature of the Good

The Whitefish (Montana) Pilot: "Council looks at how to define 'artwork.'"

More on the Polaroid Sale

The Art Market Monitor poses some "unanswered Polaroid questions," citing A.D. Coleman's ongoing series of posts on the sale. (He's up to Update # 13.) Coleman links to a letter from the lawyer for the bankruptcy trustee, which says that two federal courts have "authoriz[ed] the sale of artwork free and clear of any and all liens, claims, encumbrances and interests of any kind whatsoever and the transfer of good, clear and marketable title," so I'm not sure where the (legal) controversy is.

Earlier post here.

"Will Expiration of Estate Tax Mean Less $ for Charity?"

The Nonprofit Law Prof Blog: "Uncertainty about the estate tax has caused all sorts of problems for estate planners and their wealthy clients. The estate tax expired at the end of 2010, but if Congress does nothing, the tax in 2011 will affect more people than it did in 2009. And Congress may do something - but no one knows what Congress will do and whether it will be retroactive. In addition to all the other planning problems this causes, charities are beginning to worry about a possible effect on charitable giving."

Thursday, February 18, 2010

Karen Carolan to ADAA (UPDATED)

Josh Baer: "Karen Carolan who recently retired as director of the Office of Art Appraisals Services for the IRS and the chair of the Art Advisory Panel in Washington has now been [named] executive director of appraisal services for the Art Dealers Association of America (ADAA)."

UPDATE: More from Carol Vogel in the NYT.

Wednesday, February 17, 2010

"[T]o point to the government's investigation of his own misconduct as grounds for a discovery truly the definition of chutzpah"

That's a quote from a recent brief from the AP, via this detailed update from Ben Sheffner on the Shepard Fairey criminal investigation.

"This is art given by people in the Central Valley for people in the Central Valley. It should stay in the Central Valley"

The Fresno Bee reports that "a local attorney is asking the state Attorney General's Office to investigate whether it is proper for the Fresno Metropolitan Museum to sell off its collection to satisfy its debts."

At this point, that's all it is: a request, by a private citizen, to investigate something. The requester's argument is basically the "public trust" argument: the museum, "in being granted nonprofit status, agreed that its assets were public and would be used for public purposes. If the museum ever dissolved, ... its assets should continue to be used for a public purpose. That would mean ... transferring the items to another public charity such as the Fresno Historical Society or the Fresno Art Museum."

Note that this argument would apply not just to the art, but to all the other assets of the museum -- computers, chairs, and holiday decorations.

More importantly, it's just not the case that being granted nonprofit status means you agree your "assets are public." Think of every church, hospital, private school, etc. Their assets do not "belong" to the public.

Tuesday, February 16, 2010

"Fresno is simply too big to be left without local access to art for its citizens"

Judith Dobrzynski points out that another Fresno art museum may be on the brink.

She quotes a message from the director saying the museum is faced with "some very difficult decisions about the next season of exhibitions and educational programs," that they've "tightened [their] belts" and have "already made some critical decisions and adjustments" but are "still in a very vulnerable position."

She ends with the "hope [that] the community mobilizes in a way it did not for the Fresno Met." That would of course be great. But if only there was a way for the museum to weather the storm and stay afloat. If only it were the case that museums have a lot of stuff in their basements that they don't use and which could perhaps be used to raise some much needed cash. After all, you don't want to be caring for and conserving objects and collections that aren't central to your mission, especially in times of financial crisis.

Oh well. Let them fail.

Monday, February 15, 2010


Friday, February 12, 2010

Another VARA Decision (UPDATED)

Via Clancco, a VARA ruling out of the Fifth Circuit. Courthouse News Service summarized the facts:

"A Texas store owner and two local artists who transformed a wrecked Oldsmobile into a colorfully painted cactus planter with the message 'make love not war' were unable to convince the 5th Circuit that their expressive artwork transcends a city ban on junked cars."

The decision is here. The bulk of the discussion is of the First Amendment implications of the case, but there is a brief section on VARA. The district court had held that the ordinance in question "does not require the destruction of a junked vehicle, merely its screening from general public view." The Fifth Circuit added the following:

"The preliminary statutory issue ... is whether the car-planter qualifies as a 'work of visual art' under the VARA. The statute excludes 'any merchandising item or advertising, promotional, descriptive, covering, packaging material or container' from protection. 17 U.S.C. § 101. The district court found that the car-planters are closely associated with [the store], are part of the store's corporate image and culture, and are a distinctive symbol of the [the store's] business. These findings, which are not clearly erroneous, indicate that the carplanters are 'promotional' material and thus outside of the VARA's protection. For this reason as well as that of the district court, we affirm the conclusion that [plaintiffs] failed to state a claim for relief under VARA" (citation omitted).

UPDATE: Some thoughts from Ray Dowd at the Copyright Litigation Blog.

"There’s really nothing like it in the history of photography. To sell it is criminal"

Earlier this week the NYT's Carol Vogel reported on the sale of the famed Polaroid photo collection:

"The company ... became a victim of the digital age, going bust first in 2001 and again in 2008. The second time, after it was bought by Petters Group Worldwide, Polaroid was caught up in a $3.65 billion Ponzi scheme run by the company’s founder .... To pay off creditors, a bankruptcy court in Minnesota is forcing Polaroid to sell a portion of its collection at Sotheby’s in New York on June 21 and 22. On offer will be 400 photographs by Ansel Adams alone, along with prints by [Chuck] Close, [William] Wegman, Robert Rauschenberg, David Hockney, Robert Frank, Robert Mapplethorpe, Warhol and Lucas Samaras. Together the 1,200 objects are expected to fetch $7.5 million to $11.5 million."

The Art Market Monitor asks: "Why is the Polaroid Collection being sold off in pieces? Is there no collector, museum or foundation that can afford the $7 to $11m the bankruptcy court would like Polaroid to raise for its creditors?"

Felix Salmon agrees: "The Sotheby’s sale constitutes the destruction of a lovingly-constructed artistic endeavor which was ultimately doomed by the greed and fraud engaged in by the chain of speculators and chancers who levered up and broke down the Polaroid company as though it were any other financial commodity. It’s a crying shame, and the art press should be railing against it, rather than talking it up as some kind of art-market milestone."

Wednesday, February 10, 2010

"We can’t have people bid at our auctions and disappear without paying"

Bloomberg: "Sotheby’s is suing two Chinese for payment on $270,300 worth of antiques they won at its Hong Kong sale in October 'to send a message it won’t stand for defaults,' said Asia chief executive Kevin Ching. ... The U.S.- based auction house is also pursuing another buyer who won five antique paintings and wouldn’t pay."

"When questioned specifically on the Mackie case, she commented that Mackie was simply protecting his copyrighted work from infringement" (UPDATED)

The Capitol Hill Seattle Blog has more on the public art copyright infringement lawsuit I mentioned earlier this week:

"We looked into the issue of whether it is common for public art administrators to allow commissioned artists to retain the copyright. Apparently, this varies by agency and by contract (so it would be possible for Seattle to negotiate to retain the right - they just do not). We questioned Ruri Yamplosky, the City of Seattle's Public Art Director about the reasons for having the artist retain the copyright. She noted that this is a generally accepted practice. When questioned specifically on the Mackie case, she commented that Mackie was simply protecting his copyrighted work from infringement."

As I mentioned in the earlier post, in my experience too the artist always retains the copyright.

UPDATE: Sergio says my experience is too narrow: "
Some of the artists I meet and advise have in fact signed away their copyrights or unwillingly shared ownership of their copyrights. We have to remember that not all artists are lawyered up before being offered a commission. Many artists, particularly those in the early stages of their career, are so thrilled to be given an opportunity to make art and potentially be remunerated, that they will gladly sign and/or waive anything without seeking counsel."

Tuesday, February 09, 2010

A Mathematical Approach to Art Forgery

NPR had a story today on Dartmouth math department chairman Daniel Rockmore, who "has developed a technique that is helping to determine the difference between excellent copy and the real McCoy."

Sergio Muñoz Sarmiento says: "Now if only he could use math to figure out the solution to our current deaccessioning problem!"

Monday, February 08, 2010

Park West Update

Georgina Adam has the latest in the Financial Times on the Park West gallery lawsuits. The Art Market Monitor comments:

"Adam reports that Park West sells 300,000 works of art each year generating as much as $450m. That’s a huge amount of art. It either explains the number of complaints against the firm–with so many customers there are bound to be some disputes–or mis-representing the value of art is a great business to be in."

"Screwed by the town of Cary"

Political protest or work of art?

Photo here.


Saturday, February 06, 2010

Public Art Infringement Suit

Jen Graves on a copyright infringement lawsuit by the creator of a public artwork in Seattle against a photographer who took a picture of the work and then listed it with a stock photo agency.

Sergio Muñoz Sarmiento offers some thoughts:

"One, it seems the piece was created 'more than 30 years ago,' so [the photographer] may want to look into the exact date of creation and publication and find out if these were before 1977, or between 1978 and March 1, 1989. There are certain copyright notice requirements that must be met in these two situations to ensure that the 'work' does not fall into the public domain. (see Peter Hirtle’s public domain chart.) Secondly, it seems that if some public funds were used to cover some of the sculpture’s costs, and as a policy matter, this raises an interesting issue as to whether or not public sculptural works which are partially or entirely funded with tax-payer money should also be considered a government work. ... Thirdly, it would be interesting to investigate whether or not there was a written agreement between [the artist] and the commissioning party and notice whether or not there was a transference or sharing of the copyright to the sculpture."

On the third point, I'd be surprised if that were true. Artists typically hold onto their copyrights in situations like this, at least in my experience. But I guess you never know.


Friday, February 05, 2010

Thursday, February 04, 2010

"As the recession forces more museums to cut staff and programs, and even consider closing, critics of this policy complain it’s hard to justify"

Time Out Chicago on an exhibition at DePaul University Art Museum that's about deaccessioning.

From the museum website:

"Most museums remove items from their collections from time to time, a process known as deaccessioning. As a rule it is done discreetly, yet the process is fascinating and the issues it raises are profound: how is quality determined? are canons of taste immutable? This exhibition spotlights the deaccessioning of objects from DePaul's collection, inviting scholars from art history, philosophy, and anthropology—and visitors—to weigh in on the works of art and their fate."

As the Time Out article points out, "the most common arguments for rules limiting deaccessioning hinge on museums’ duty to hold their collections in the public trust" (although some close observers of this debate have somehow managed never to have heard that argument). But then why is it okay for "most museums" to remove items from their collections "from time to time"?

Tuesday, February 02, 2010

Magnum Sale

The NYT's Randy Kennedy reports that the Magnum photo agency has "quietly sold" its archive of more than 180,000 "press prints" ("the kind of prints once made by the collective to circulate to magazines and newspapers[; . . .] marked on their reverse sides with decades of historical impasto — stamps, stickers and writing chronicling their publication histories — that speaks to their role in helping to create the collective photo bank of modern culture") to MSD Capital, Michael Dell's private investment firm. MSD has agreed to deposit the collection with the Harry Ransom Center at the University of Texas at Austin "for study and exhibition, for at least the next five years." The purchase price was not disclosed, but supposedly the Ransom Center has insured the collection for more than $100 million.

The sale includes the prints only: "The image rights will be retained by [Magnum’s] photographers and their estates."

More here from Photo District News.


Monday, February 01, 2010

"People are afraid to discuss the very possibility"

In the wake of her NYT op-ed, Judith Dobrzynski discovers that deaccessioning is "the Third Rail of the museum world."

She also links to a radio show she did with Michael Rush, the former director of the Rose Art Museum, and you couldn't ask for a better example of the craziness of this whole conversation. The two museum guys (Rush and Charles Desmarais, deputy director of the Brooklyn Museum) spend the first part of the discussion going on and on about sacred cultural heritage and how works are held by museums in the public trust (Desmarais even compares them to your wedding ring, which you of course would never sell to pay the light bill). But then, towards the end of the program, when the conversation turns to deaccessioning to raise money to buy more art, they immediately shift into: "Oh well, that happens all the time, that's no big deal, etc."

Is there a secret pact among museum people to pretend that this BLATANT INCONSISTENCY isn't there?

"White House goes after charitable deduction, again"

Politico's Ben Smith reports that the proposed tax change is back in this year's budget, but says: "expect the same fierce pushback to the write-off change -- and the same assumption on the Hill that it's dead on arrival -- as last year." More here from Mike Boehm of the LA Times.

A post from the last go-round here.