ALSO BREAKING: Knoedler Closing ... Effective Immediately

Patricia Cohen has the story in the New York Times.

BREAKING: A little joy in Fiskville today (UPDATED)

Fisk University has won its appeal in the latest round of the Stieglitz Collection litigation.  It gets to enter into a sharing arrangement with the Crystal Bridges Museum -- and doesn't have to set aside $20 million of the $30 million pricetag in a separate endowment.  Story here.  Background here.  More later when I've had a chance to read the opinion.

UPDATE:  I've now read through the opinions.  The majority affirms the basic cy pres ruling, but holds that "the court exceeded its statutory authority ... when it decreed how the proceeds of sale would be spent":  "The court has no authority ... to effectively decree the manner by which the Collection would be used by Fisk in furtherance of its educational mission."   The dissent took more of a Donor Intent Police approach:  to permit the University "to monetize the Collection ... in order to infuse much needed capital" would "convert[] the Collection into money, which is in direct conflict with Ms. O'Keeffe's expressed intent.  The record clearly reveals that Ms. O'Keeffe never intended for the Collection to be sold or otherwise monetized in order for Fisk University to pay its general operating expenses."  It was therefore permissible for the court to allow Fisk to keep $10 million -- so that it can "rise above its current financial predicament" -- but order the rest placed in a restricted endowment.

Speaking of the Donor Intent Police, Lee Rosenbaum calls Alice Walton a "donor-intent violator" and calls for the AAMD to "strongly exert its influence" on Crystal Bridges for its bad behavior in saving Fisk from bankruptcy and keeping the Stieglitz Collection in the public domain.  But it's important to note that there's no way to preserve the donor's intent here.  The trial court already found that "Fisk's financial situation rendered strict compliance with the conditions impracticable," that "due to Fisk's financial situation, it was impracticable for Fisk to comply with Ms. O'Keeffe's condition that the Collection be maintained at and displayed by Fisk."  The question to be determined in the litigation was which option most "closely approximated Ms. O'Keeffe's charitable intent" ... and the answer was Alice Walton's:

"To address Ms. O'Keeffe's condition that the Collection be displayed intact, the [Crystal Bridges] Agreement provides that the Collection will be displayed at the institutions on a rotating basis so that it will be available on the Fisk campus during at least two years of each student's four year matriculation at Fisk.  With respect to the maintenance and display conditions, the agreement ... charges that [the Collection] committee, when determining what is in the best interest of the Collection, 'to take into account the conditions originally set out by Georgia O'Keeffe ....'  In accordance with the original conditions, no item of work included in the Collection may be sold or exchanged, no item of work may be added to the Collection, and the Collection will be known, in perpetuity, as the 'Alfred Stieglitz Collection.'"

So the Tennessee courts have ruled that, far from being a donor-intent violator, Walton is actually the closest donor-intent approximator in this case.  I suppose reasonable minds could differ about that -- one could argue that one of the Attorney General's alternative proposals was actually closer to O'Keeffe's intent, as if there were some kind of ruler to measure the distance between these things -- but it would be exceedingly odd for the AAMD to "strongly exert its influence" on Crystal Bridges for doing what the courts have sanctioned as the closest possible substitute for the donor's intent.

What We Talk About When We Talk About Appropriation

Contemporary Art After Cariou v. Prince, a panel discussion at the City Bar Association, Dec. 13.

Show Me the CARFAC

Andrew Russeth notes that "a group that lobbies on behalf of Canadian artists is calling on the country’s government to enact a resale royalty law that would guarantee artists a five-percent cut when one of their artworks is resold."

Related posts here and here.

"There've been so many deaccessions this fall that they seem routine ..."

"... hardly worth noting."

"It is a global problem involving huge sums of money. They are banking on enough people being scared into paying."

The Guardian:  Art dealers are latest targets of online fraud.

"Overall, the three amicus briefs make a strong argument for—at the very least—a remand."

The Fordham Intellectual Property Law Journal on Prince-Cariou:  "The Southern District decision was too narrow in its transformative use analysis, and too broad in its application of liability."

"The problematic charitable-donation tax deduction"

Felix Salmon wasn't impressed with Stephen Carter's recent piece on the virtues of the charitable deduction.  The issue comes up in the context of his discussion of an article over the weekend in the New York Times on elements of Ronald Lauder's tax planning.  Salmon's view is that "there is very little public policy served by giving Lauder [a tax deduction for transferring art to the museum he controls]. At the margin, does it make him more likely to open up a lovely museum of early 20th Century German and Austrian art in a Fifth Avenue mansion? Possibly. But the connection is tenuous enough that it’s hard to have any conviction in."  Carter had argued that it is "silly" to "suppose that eliminating the deduction will have little effect on donations."

"There seems to be no overall magic answer for authenticating works of art: every method is flawed."

Georgina Adam in The Financial Times.

"One way to increase the value of your art would be to have it become part of an oddly popular/famous art theft."

The Art Market Monitor on one consequence of Mark Lugo's San Francisco Picasso theft.

"By encouraging individuals to make their own choices on how to spend money for the public good, the deduction makes society as a whole better off. Let’s keep it that way."

Stephen Carter pushes back against the "rising mania among politicians" to "either eliminat[e] or severely restrict[] the charitable deduction."  It's interesting throughout.  Among other things, he argues that it's "silly" to "suppose that eliminating the deduction will have little effect on donations":

"Consistent research over the years has shown that charitable giving ... is price-elastic, at least in the higher tax brackets, where giving disproportionately takes place. ... The price of a gift rises when the value of the deduction falls. If a taxpayer in the 35 percent bracket makes a $1,000 contribution, the 'price' is only $650, because of the $350 deduction. Should his deduction be capped at, say, half its nominal amount, then the deduction is only $175, and the 'price' rises to $825. Should the deduction be eliminated, then the price of the $1,000 contribution is $1,000. It is difficult to imagine a universe in which this rising price would have no effect on consumption of a good."

Yeah, but they totally won't be the same

"The Violette de Mazia Foundation and the Barnes Foundation are pleased to announce that they have come to an agreement that will allow continued access for the Violette de Mazia Foundation’s art-appreciation classes at the Barnes Foundation’s new galleries on the Benjamin Franklin Parkway in Philadelphia for many years to come."

"It’s an insult to the tree. It has nothing to do with urbanization."

In San Francisco, a spate of tagging that "appears to violate one of the tenets of the graffiti subculture."

"Why you can’t always trust auction results"

Felix Salmon explains.

"Federal judge tosses book at art swindler" (UPDATED)

Six years for Thomas Doyle.  Background here.

UPDATE:  More from the New York Times and Courthouse News Service.

"I am somewhat obsessed with this bizarre art collection and lawsuit."

The Dallas Observer:  Catching Up With That Fascinating Federal Case Involving Wendy Reves's Son and the DMA.  Background here.

"I will take this to the bitter end with them."

Janine Gordon is appealing the dismissal of her copyright infringement suit against Ryan McGinley.  She's doing the appeal pro se.

"Why are original artworks valued more than identical duplicates?"

From the Journal of Experimental Psychology.

"Sure, a little over $4 million is a lot of money, but is it all that economically illogical, considering how well luxury brands are doing?"

The Freakonomics blog on the world's most expensive photograph.

Chicago dealer Richard Love files for bankruptcy

Story here.  Background here.

What's effort got to do with it?

Apparently "The Art of the Steal" is being shown on the BBC (under the title "Billion Dollar Art Heist"), which has generated some press over there.  An article in the Telegraph, for instance, poses the question "if more people will now see Barnes’s art, isn’t that ultimately more significant than perpetuating an old man’s grudges?" and it's worth unpacking director Don Argott's answer.  "There are enough art galleries that cater to the convenience of the tourist," he says.  But "with the Barnes you had to make an effort. That was part of the experience. It was the product of a unique vision, and now it’s gone it can never be replaced."

There seem to be two separate thoughts strung together there.  One is in the last sentence -- the Barnes is the product of a unique vision and can't be replaced.  Given that the collection remains intact, and the arrangement of the works will be precisely replicated in the new location, that doesn't seem to me to be a persuasive answer to the question.

The rest of the answer amounts to the claim that it's actually better to have a few people see the collection after "making an effort" than a lot of people see it without any effort (as if they now can roll out of bed and just kind of stumble into the museum).  You hear this sort of thing a lot from opponents of the move, but what does it really mean?  Let's say there's some group of people -- Group X -- who, if the Barnes hadn't moved, would have "made the effort" to see the collection (which I guess means ordering tickets and driving four-and-a-half miles to Merion; serious effort).  After the move, Group X can still see the work; they're no worse off.  But now a whole other, presumably larger group of people -- Group Y -- will also be able to see the work.  These are the people who would not have "made the effort" to go to Merion but, now that the collection has been moved to downtown Philadelphia and therefore requires no effort to see, will visit.  This group is better off.  So what's the problem?  Is the objection to the move really that the first group -- the effort-makers -- are deprived of the chance to expend some effort?  Or is the idea that it's wrong to reward the second group -- the non-effort-makers -- by letting them see the collection?

I don't think Argott has answered the question.

Shorter Crystal Bridges Coverage

Darn you, Alice Walton, for taking a bunch of work that was in the public trust and, um, keeping it in the public trust but in a less convenient location.

"U.S. Clears Art Project by Christo in Colorado"

The New York Times reports that "federal regulators [have] approved a $50 million installation of anchored fabric over the Arkansas River in southern Colorado by the artist Christo."   The project will include eight suspended panel segments totaling 5.9 miles along a 42-mile stretch of the river.

Ann Althouse says "I think part of the art is the interaction with the local people and the authorities. I think of it as including a performance art component that is about law."

Tell me again about the public trust (a continuing series)

Judith Dobrzynski quotes from a Christie's press release noting that its Nov. 22 sale will include works from "more than a dozen of America‟s most-respected museums, including the Art Institute of Chicago; the Cleveland Museum of Art; the Corcoran Gallery of Art; the Harvard Art Museums; the Huntington Library, Art Collections, and Botanical Gardens; the Minneapolis Institute of Arts; the North Carolina Museum of Art; Louisville‟s Speed Art Museum; and Hartford‟s Wadsworth Atheneum."

The Huntington is selling 26 items.  The Speed is selling nearly 50, the Corcoran 20.

All of that work, held in the public trust, to be accessible to present and future generations ... gone.

Where are the people complaining that these more than a dozen museums are guilty of treating art as commodity -- "saying it’s the same thing as a truck or computer or a chair"?

Where is Dan Monroe to worry that "letting one museum sell off two paintings paves the way for dozens of museums to sell off thousands of artworks, perhaps routinely."  After these sales, isn't it going to be "impossible to control the outcome"?

Where are all the museum directors to lecture us that "museums get tax-deductible donations of art and cash to safeguard art collections for the public" and selling work "betrays that trust"?

I'm starting to get the feeling it's all a bunch of b.s.

"Nairne’s book is undoubtedly an intriguing and valuable story about the recovery of stolen art and the trials that one man went through in order to bring about that recovery."

Noah Charney on "Art Theft and the Case of the Stolen Turners."

"A big part of the business today is third-party guarantees. They’ve definitely become a key component and an industry standard."

A report from last night's Phillips sale.

"If you’re never, ever going to show them, I see no reason why we should keep these in the collection."

I love, love, love this kind of piece, by Steven Litt in the Cleveland Plain-Dealer.  The subject is the Cleveland Museum of Art's upcoming sale of 24 sculptures at Christie's (which, by the way, follows another round of deaccesioning earlier this year, in which the museum sold 32 paintings).

Normally we're told, when a museum goes to sell work and use the proceeds for anything other than buying more work, that it's the Worst Thing Ever In The History of the World because the work is held by the museum in the public trust, and it would be a horrible violation of the intent of the donors who gave the work to the museum, and it will discourage potential future donors from ever giving anything else to the museum.  Why would anyone give something to a museum if the museum then can turn around and sell it whenever it feels like it, right?

But now, when a museum decides to strip two dozen works from the public trust (presumably to raise funds to buy more work, though the article is not explicit about that), we hear an entirely different story.

First of all, the "sale of works from the permanent collection, known as 'deaccessioning,' is intended to free up storage space and to take a burden off the institution."

You see?  We're relieving the museum of a burden.  Who said anything about a public trust?  These works are a burden to the poor museum.  "Art handlers have to move these things [these 'things' -- love it!], conservators have to conserve them, curators have to do research on the objects, and everybody in Collections Management [a museum department] has to maintain records," a curator at the museum tells Litt.  "If you’re never, ever going to show them, I see no reason why we should keep these in the collection," he adds.  Right!

We also learn that the issue of donor intent is not as simple as we are sometimes led to believe:  "Many of the works to be sold at Christie’s entered the museum’s permanent collection as part of estates donated by supporters .... 'When you get entire estates, sometimes you’d take a very large group of objects and sort it out later,' [the curator] said."  Ah, so, perhaps, works are sometimes given to museums as parts of larger estates, or for tax reasons (did you know that collectors get a tax deduction when they give work to the museum?  It's a little known secret), and maybe the donors wouldn't be so upset if the museum decides someday, years later, to sell those works, particularly if the proceeds are used to support the larger mission of the museum, or perhaps even keep it from having to close.

Good to know!  Why hasn't anyone mentioned this before?

Finally, whenever a work is sold for non-acquisition purposes, opponents of the sale ask:  Where will it end?  If we allow this one sale, what's to stop the museum from selling off everything (or at least two dozen sculptures and 34 paintings in the span of less than a year)?  Well, don't worry.  The folks in Cleveland have thought of a foolproof system of checks and balances.  Are you ready for it?  Here it is:

"The museum consulted numerous outside experts before deciding in each individual case whether a particular sculpture should be sold."

Not just one outside expert, mind you.  Numerous outside experts.  And, they considered each particular case individually.  They didn't just ask "should we sell off a bunch of non-specific sculpture?"  No, they looked at each individual sculpture before deciding to sell 24 of them.  The public trust demands no less.  Thank you, Cleveland, for your diligence.

Is it a surprise that some people might look at all of this and conclude it's all just smoke and mirrors?

"The problem with authenticating Warhol"

Charlotte Burns, in The Art Newspaper.

"The museum and its superb collection have never looked better."

Boston Globe art critic Sebastian Smee on the reborn Rose Art Museum.

A couple of quick notes.

First, he suggests the following as a "good working principle" for museums to follow: "Don’t sell things you received as gifts."

But the standard, AAMD position on deaccessioning is actually:  Don't sell things you received as gifts unless you use the proceeds to buy more art, in which case knock yourself out.

Second, he says the lawsuit brought by the museum's supporters was settled "with Brandeis agreeing not to sell the Rose’s collection."  That's not the case.

"It’s extremely difficult for me to avoid the conclusion that these super-gigantic collections represent an inefficient allocation of global resources."

"If 15 percent of the stuff on display at the Louvre vanished at random, the impact on the experience of visiting the museum in particular or Paris in general would be minimal. But in the majority of the cities of the world, that 15 percent would be the basis for an excellent new museum."

Stephen Colbert is not a member of the Deaccession Police

Video here.  (via)

Is Charitable Giving by the Rich Really Responsive to the Income Tax?

The Treasury Department's David Joulfaian examines the question.  From the abstract:  "The empirical findings suggest that giving by the rich may not be as responsive to the income tax as previously thought."

Freakonomics on the California Resale Royalty

Over at the Freakonomics blog, Kal Raustiala and Chris Sprigman discuss the California resale royalty scheme.  They point out that "if the California rule applies, buyers of art can expect, on average, to make lower profits when they resell. As a consequence, they are likely to offer less in the initial transaction."  They also note that the scheme "enriches only the fortunate few who actually see their work gain substantial value":

"Let’s call them the '1 percent.' The 99 percent get little to nothing, since their art either drops in price or rises only slightly. The right to 5 percent of a later sale, in short, is like a lottery ticket—and like lottery tickets, the vast majority of ticket holders walk away empty-handed. The most successful artists are the last ones in need of aid, but the net effect of the California resale provision is to transfer wealth from unsuccessful (the lottery losers) to successful artists (the lottery winners). Sound like a familiar theme?"

Prince Appeal News

This is probably a little backwards (in that I should have read Prince's direct brief first), but I had a chance to look at the amicus brief filed yesterday on behalf of the Warhol Foundation in support of Prince's position.  The Foundation is being represented by the Stanford Fair Use Project, along with Virginia Rutledge and others at Bingham McCutchen in New York.  You can read the brief here.

The main argument is that the district court got the transformativeness analysis wrong in two ways.  First, it said that Prince's work had to comment specifically on Cariou's photographs; instead, "all that is required is a meaning, message or purpose that is 'separate and distinct' from the original."  Second, it "assessed the meaning of Prince's work based entirely on Prince's testimony, not the reasonable perceptions of the viewer"; transformativeness should be determined "first and foremost by the observation of the work itself, and whether new meaning and expression may be reasonably perceived from it."

Latest in the California Resale Royalty Litigation

Another class action, this one against nine California galleries.

Schrodinger's Deaccession

One additional thought as Deaccession Month gets underway.

If you subscribe to the Standard View on deaccessioning, and I tell you that a museum is selling a work -- or selling 22 works -- you don't know what to think.

You don't know if the sale is horrible and repulsive.

You don't know if, on the other hand, it's a normal act, to be encouraged.

So your attitude towards the sale has nothing to do with thinking that the work is held in the public trust.  And it isn't motivated by worries about the effect on future donations.  If those were really your concerns, you would be opposed to the sale without having to know anything more.

But if you hold the Standard View, you do need to know more.  You need to know how the proceeds of sale will be used.

If it's to buy more art, to add one more work to the thousands already in the museum's collection, you will approve of the sale.  You will see it as a normal act, to be encouraged.

If, however, it's to keep the museum from going out of business, you will be repulsed.  You will demand sanctions.  You will find it absolutely outrageous that a museum would sell off these precious assets that are held in the public trust, to be accessible to present and future generations. You will worry that somebody will say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?

It's kind of laughable, actually.

Tell me again about the public trust (a continuing series)

The Cleveland Museum of Art is deaccessioning 22 European sculptures at Christie's later this month.

That's 22 sculptures, held in the public trust, to be accessible to present and future generations.

Do you ever get the feeling the museums don't really believe they hold their works in the public trust?

"Proposed limits on tax deductions for charitable donations worry leaders of nonprofits"

Chicago Tribune story here.

Marchig Dismissal Affirmed

One of the (many) things I learned at Friday's excellent authenticity symposium up at Columbia was that, over the summer, the Second Circuit affirmed the dismissal of Jeanne Marchig's suit against Christie's (see last bullet point here).  You can read the decision here.

Did they get permission from the hall monitors for this?

Sacred Heart University is closing its Gallery of Contemporary Art.

"Experts in art law are divided about whether it might be vulnerable on constitutional grounds."

The New York Times on the California resale royalty suit.