Monday, June 28, 2010

Stylin' (UPDATED)

Mike Madison has some thoughts on the Christo-"influenced" AT&T TV ad (mentioned earlier here). He's not sympathetic to the claim "that copyright protects a creator’s 'style,' rather than particular works," and links to an early post of mine on the subject.

But why shouldn't copyright protect an artist's style, particularly when it's as distinctive as Madison concedes Christo and Jeanne-Claude's is here?

What's the argument -- from a policy perspective, rather than a formalist reading of the statute -- for protecting an individual work by these artists (certainly AT&T could not have used photos of The Gates in the ad) but not a generic work that is unmistakenly in their style, that is clearly intended to evoke their work?

Why protect all the particular Pollocks (or Rothkos or Newmans or etc.) but not a "composite" work that everyone would immediately recognize as "a Pollock"?

What do we hope to achieve by protecting the former, and aren't all the same goals met by protecting the latter?

UPDATE: Some thoughts from Michael Rushton.

A Recovery (UPDATED)

There were reports today of the recovery of a stolen Caravaggio worth $100 million. But Art Theft Central casts some doubt:

"Unfortunately, it appears as if the media has not performed much research into the painting's history. Although the Telegraph includes the fact that in '1950, a Moscow art expert declared that the painting in Odessa was in fact the work of Caravaggio,' it fails to add that in 1993 the art historian Sergio Benedetti reattributed the painting to be a contemporary copy (Sergio Benedetti "Caravaggio's 'Taking of Christ', a Masterpiece Rediscovered" The Burlington Magazine, Vol. 135, No. 1088 (Nov., 1993), pp. 731-741). ... Perhaps the press needs to confirm and corroborate its information so as to avoid sensationalizing art theft stories needlessly. ... While coverage of stolen art recoveries is valuable to the heightened public awareness of our cultural heritage's vulnerability, the public also needs verification of art provenance."

Related thoughts on inflated values from The Art Market Monitor.

UPDATE: More from Tom Flynn.

"I still have 15,000 [more] photos to liquidate"

Meant to mention before the weekend that the Polaroid Collection sale went forward last week at Sotheby's, and brought in about $10 million. The Minneapolis Star Tribune explained the legal context:

"Few even knew the collection was part of Polaroid Corp. [Tom] Petters bought the instant photo icon for $426 million in 2005 .... The company filed for Chapter 11 bankruptcy in late 2008, months after Petters was arrested, and the artwork popped up as a surprise asset. The bankruptcy later changed to a Chapter 7 liquidation.

"Polaroid itself was sold off last year ... for $85.9 million. That company ... is now called simply Polaroid and uses the Polaroid brand.

"But the buyers excluded the art collection, along with some other assets.

"Orphaned, the photographs remained with Polaroid Corp., which is being liquidated and was renamed PBE Corp. so it wouldn't be confused with the Polaroid brand company.

"A small group of artists led by a retired judge in Oklahoma named Samuel Joyner opposed selling Polaroid's collection .... The group had several discussions with bankruptcy officials but didn't file a motion and the sale went forward ....

"Petters was sentenced to 50 years in prison for running a $3.65 billion Ponzi scheme."

Thursday, June 24, 2010

Use Your Judgment

A very interesting law review article from Fordham's Linda Sugin on deaccessioning and university art collections. She diagnoses "the underlying conflict" as one of "inconsistent conceptualization": critics of university deaccessioning "fail to distinguish museums from other institutions that own art but are not primarily museums," while a university that seeks to sell art is looking towards its "complex educational responsibilities" -- in other words, a university's mission is larger than its art collection. The differences between museums and universities "may justify different obligations with respect to the same subject. The public interest carried out by universities on the one hand, and museums on the other, diverge enough to justify one perspective on art collections for museums and another for universities. Those differing perspectives should justify different deacessioning standards for museums and universities." She proposes that university trustees "exercise a heightened level of attention when selling art, but retain their discretion to act in the best interests of the university."


Wednesday, June 23, 2010

On the Good Old Days

In response to Halsey Minor's musings on the decline of corporate ethics, Terry Martin emails:

"I guess Mr. Minor never read Reinhold Niehbuhr, Moral Man and Immoral Society (1932). Niehbuhr’s principle thesis is that '… a sharp distinction must be drawn between the moral and social behavior of individuals and of social groups, ...' [p. xi] 'What is lacking among … moralists … is an understanding of the brutal character of the behavior of all human collectives, … the stubborn resistance of group egoism to all moral and inclusive social objectives….' [p. xx]

"According to Niehbuhr, corporations have always had a difficult time being ethical. Minor’s view of history is perhaps a bit romantic."

One More Thing

One further thought on Esplund on the Barnes. I think it's useful to distinguish between two sets of arguments against the move.

One set of arguments has to do with Barnes's intent. He wanted the collection to stay in Merion. Therefore it should stay in Merion.

The other has to do with whether or not it's a good idea to move the collection, irrespective of Barnes's wishes.

Suppose it were not a violation of Dr. Barnes's intent to move the collection to Philadelphia. Suppose he had said in his Will: "It is my intention that the collection stay in its curent location in Merion for 50 years following my death, but, recognizing as I do that circumstances change and you never know what the future will bring, after that I leave it up to the Foundation's trustees to decide what to do. I'm sure you'll do the right thing."

In that world, would it still be a "cultural tragedy" to move the collection 5 miles up the road (same works, same galleries, same hang)? And if so, why?

I think the cultural tragedy crowd should have to answer that question . . . without falling back on the crutch of "it's not what Barnes intended."

Monday, June 21, 2010

More on Esplund on the Barnes

A couple of weeks ago, I mentioned Lance Esplund's long essay in The Weekly Standard about the Barnes move. The magazine now has a letter to the editor from Brett Miller, the general counsel of the Barnes, and a response from Esplund. You can read them both here. I have a few observations.

Miller mentions the recent article by art dealer Richard Feigen that I discussed here. He says Feigen's solution involved selling "works of art from the collection to raise money for an endowment," a prescription "which stands in direct opposition to ... the ethical standards widely accepted by other collecting institutions." Esplund counters that "Mr. Feigen’s solution was to sell 'unrestricted' artworks ..., an action that is in no way forbidden under museum association guidelines."

I remain confused about this distinction between "restricted" and "unrestricted" works when it comes to the issue of deaccessioning. Did it suddenly become okay to deaccession "unrestricted" works and use the proceeds for operating expenses? Which are the unrestricted works at the National Academy? Or Randolph College? Quick, someone get Jehuda Reinhardz on the phone. I think we just solved Brandeis's deaccessioning problem. They should just sell the "unrestricted" works!

Turning to the heart of the dispute, I thought the chief weakness of Esplund's original piece was that he didn't bother specifying exactly what it is that will be lost in the move. As I said then:

"Towards the end of his long piece, Esplund finally gets around to conceding that 'almost all of the artworks are to be reinstalled as they were in Merion,' and that the new galleries will 'replicate the scale, proportion, and configuration of the existing galleries.' The artworks, the way they are installed, the scale, proportion, and configuration of the galleries -- what else is there? If we keep all of that, what have we lost?"

Miller calls him on the same point:

"Mr. Esplund spends a large portion of the article describing in great detail the art works and other elements comprising the ensembles and visual connections in the galleries. He ultimately and disingenuously implies that when the collection moves these unique connections will be lost through a 'Frankenstein’s monster-like revivification.' Despite his facile attempt to suggest otherwise, the new galleries will retain the scale, proportion, and configuration of the existing galleries and, through an interior garden, will reinforce the connection between art and nature."

In response, Esplund makes what I think is a startling concession: "There is no way for us to predict exactly how adversely the experience of the Barnes’s art will be affected by its new home and attendance going up five-fold" (my emphasis).

Think about that for a second. The 4.6 mile move up the road is a great "cultural tragedy," but, pressed to explain why, Esplund says: We can't know. It's impossible to predict.

He goes on to say that "more viewers equal more distractions" (does that apply only to the Barnes collection or is the goal to depress the number of visitors to, and therefore the number of distractions at, all museums?), and then another amazing statement: "Some works of art (Chartres Cathedral, the Great Pyramids at Giza, Fallingwater, the Barnes Foundation) are perfect exactly how and where they are."

The Barnes -- now promoted to a Work of Art, rather than a place where works of art can be seen -- is perfect exactly how and where it is. It cannot be improved upon. Don't move a hair on its head. Don't re-think anything, ever. They got it right the first time. (What were the odds!) It was, is, and always will be . . . perfection.

He also says that the Barnes is "a unique and radical vision," and the move to Philadelphia "will homogenize it." But again: how? How will it "homogenize" the vision? Does the unique and radical vision reside in an address -- 300 Latch's Lane? Isn't "the vision" embodied in the selection of works, how they are arranged and hung, etc.? If all of that is preserved -- and Esplund concedes that it is -- in what sense is the vision being homogenized?

New Issue of Journal of Art Crime

The Spring issue of ARCA's Journal of Art Crime is out. My contribution this time is on Stephen Spielberg's stolen Norman Rockwell. An excerpt:

"Remarkably, however, it emerged during the course of the litigation that not only should Solomon have known about the 1988 auction, he actually did know all about it. FBI documentation produced in the lawsuit showed that agents spoke with Solomon about the work and were told that (1) Solomon and his insurer contacted the auction house prior to the sale and (2) they entered into a 'settlement agreement' under which the auction house would get 10% of the sales proceeds, the insurer would get back the $20,000 it had paid to Solomon on his claim back in 1973, and Solomon and the current consignors of the painting would split the remaining proceeds 50-50. Solomon denied having entered into such arrangement, but the Court found his denials 'not credible.'"

"For next week, your assignment is to make a list of all your expenses for 2009"

The NYT's Kate Taylor on "a class paid for by the City of New York that is intended to help [artists] turn their creative works into money."

"The city slightly raised its proposed cap this week after opposition to the limits from artists"

"Two artists have filed a free-speech lawsuit against New York City in response to new regulations capping the number of art vendors allowed in Manhattan's busiest parks. Robert Lederman and Jack Nesbitt say that allowing only about 120 vendors in Union Square, Battery Park, the High Line Park and parts of Central Park is unconstitutional."

"Corporations have mutated from organizations that once generated jobs, products and prosperity for the country into voracious, impenetrable monsters"

Halsey Minor is "disgusted by what corporate America has become," and includes a "personal example":

"I recently won an $8.57-million court judgment against the auction house Christie's. The jury found Christie's guilty of fraud, among other things, because it refused to return artwork it failed to sell on my behalf. Fraud is serious. If a jury had found me guilty of fraud, I'd probably be sent to jail and it would stick with me for the rest of my life. I would be ruined. For Christie's, whose namesake founder has been dead for hundreds of years, it's just a cost of doing business. No one from Christie's will endure any serious consequence because they are protected by a cloak of corporate immunity and obfuscation. Corporate law makes it so Christie's, a faceless legal entity, is responsible rather than the individual human beings who actually committed the offense."

Internet Scam Targets Art Dealers

The Greensboro News & Record:

"Police said the operation works like this: The thief contacts the dealer by e-mail. They negotiate a price for one or more pieces of art. The buyer, who is often from some remote overseas location, sends the dealer a cashier’s check, money order or a credit card number. The dealer then wires money to the buyer’s courier service to handle delivery of the art. The payment for the art turns out to be bogus."

Sunday, June 13, 2010

Minor Trouble

The New York Times on Halsey Minor's financial troubles, including the following:

"A lawsuit stemming from Mr. Minor’s failure to pay $13 million he owed Sotheby’s led to a $6.6 million judgment in the spring. Last week, the New York federal judge overseeing the case ordered him to surrender by mid-June a long list of his remaining assets. Sotheby’s said it had put Mr. Minor on a 'no-bid' list and asked the judge in a court filing to force him to surrender pets worth more than $50 and any food his family would not be able to consume in the next 60 days."

Saturday, June 12, 2010

"'The Art of the Steal' is not journalism but advocacy"

Reviews continue to trickle in:

"[I]t’s hard to feel much outrage here. Compared with the massacre in Darfur or the Gulf oil spill, it’s hard to see who got hurt here. More people, and more scholars, will be able to see the Barnes paintings in a state-of-the-art, climate-controlled building. Is this such a bad thing?"

"A legend in the world of art theft"

That's how the Art Market Monitor describes Robert Wittman, the retired head of the F.B.I.’s Art Crime Team, who has just published a memoir, "Priceless: How I Went Undercover to Rescue the World’s Stolen Treasures." Here is coverage by Randy Kennedy in the New York Times. More here, plus an excerpt.

"The details of the court battle are murky"

"But two-and-a-half years later, Havassy and the company reached a settlement."

Background, from four-and-a-half years ago, here.

Infringement Suit

The Art Newspaper:

"Photographer Anne Pearse-Hocker is suing Firelight Media in [Virginia] for $450,000 for copyright infringement, claiming that their 2008 documentary 'We Shall Remain: Wounded Knee' used photographs she took of the 1973 siege without her permission .... [Pearse-Hocker] claims that she gave the photographs to the National Museum of the American Indian in 1996, but that she retained ownership of the copyright. She said that while Firelight asked the Smithsonian for permission to use the photographs, she was never contacted. Pearse-Hocker is also filing a copyright claim against the Smithsonian for allowing Firelight to use her work."


"Can we any longer avoid deaccessioning, if acquisition funds are now empty and museums have to fund acres of storage for third-rate pictures?"

Bendor Grosvenor in The Art Newspaper on the coming cuts to arts funding in the UK.

"You could not operate a museum at that location under [those] restrictions and [at] that size, and make it financially sustainable for the long run”

That's Pennsylvania Governor Ed Rendell on the Barnes. More here:

"[Rendell] denied the new facility will be a McDonald’s-style mega-museum insensitive to Dr. Barnes’s vision. 'The basic display is going to replicate as accurately as possible the way the art was displayed in Dr. Barnes's house. Now obviously it's going to be larger. Because one of the things we all wanted to do was to take these incredible works of art and expose them to more people."

Friday, June 11, 2010

"The first work to go to the Meadows will be El Greco’s 'Pentecost'"

In today's New York Times, Carol Vogel reports on a new "three-year partnership" between the Prado Museum in Madrid and the Meadows Museum at Southern Methodist University in Dallas, which "will include the loan of major paintings — one a year — from the Prado." The deputy director of the Prado is quoted as saying, "This can be a way for people to get to know our collection."

Sounds good. But now let's change one fact. Let's assume the "partnership" is in all respects the same, except the Meadows, flush with cash from its wealthy alumni base (I'm making this up, but work with me here), sends some money back to the Prado, to help it fulfill its mission.

Do we now have an occasion for shame? If so, why? If it's fine -- even praiseworthy -- for institutions to lend works to each other, why is it a scandal to generate some revenue from the arrangement?

"His emphatic assertions of wrongdoing by Sotheby’s were just so much bluster"

Peter Friedman on "Halsey Minor's fall."

Thursday, June 10, 2010

Update on WWII Memorial Lawsuit

Last summer I mentioned a possible VARA suit involving a World War II memorial sculpture in Washington state. The Bellingham Herald has an update:

"The memorial’s artist, Simon Kogan, twice has tried to secure restraining orders to stop maintenance or restoration work on the memorial as part of a lawsuit he filed against the Department of General Administration, which maintains the memorial. He claims crews damaged the memorial, including the tiles, when they power-washed it three years ago, a breach of the contract commissioning the work.

"The agency denies his claims. In its countersuit, GA alleges Kogan’s negligence in designing, fabricating and installing some features of the memorial, including the tiles and drainage, led to the damage. Kogan denies those claims.

"In January, a judge ordered the parties to resolve the lawsuit through arbitration; no meetings have been scheduled."

Monday, June 07, 2010

"For a sniper’s-eye view of how volatile the market for a single work of art can be . . ."

". . . just consider the recent court decision requiring Christie's to pay Internet entrepreneur Halsey Minor $8.6 million after the auction house prevented him from selling four Richard Princes at the height of the art boom."

A Little Light

The LA Times: "One of Thomas Kinkade's companies filed for bankruptcy protection Wednesday, a day after a $1-million payment was due to former gallery owners who have tried for four years to collect on a judgment they won against the self-styled 'painter of light.' The Chapter 11 petition was filed in U.S. Bankruptcy Court in San Jose in the name of the Kinkade production arm, Pacific Metro of Morgan Hill, Calif. It allows Pacific Metro to reorganize and puts an automatic stay on the collection of all judgments, including one for $3 million owed to Karen Hazlewood and Jeff Spinello."

Saturday, June 05, 2010

Minor Problem

NY Post: "Fallen Internet tycoon Halsey Minor is so hard up for cash that he can't even afford to send Sotheby's his art collection to make good on his $6.6 million debt to the famed auction house. Court papers filed yesterday say the co-founder 'has represented that he cannot pay shippers to transport his fine and decorative art as directed.'"

Related news here.

"Exploring this option is a reasonable way to preserve the financially strapped school’s collection"

The Boston Globe editorial board on Brandeis's plans to raise some money by lending out artworks:

"Because the economics of maintaining a museum can be forbidding, Brandeis deserves praise, not criticism, for trying to raise revenue through its collection."

Thursday, June 03, 2010

Minor Update

NY Post: "A judge yesterday told cash-strapped Internet tycoon Halsey Minor to cough up his cars, jewelry, and even the rugs on his floor to pay off a $6.6 million debt to Sotheby's."