"If the case has had any effect so far, it has been to drag into the public arena a fundamental truth hovering somewhere just outside the legal debate."

"That today’s flow of creative expression, riding a tide of billions of instantly accessible digital images and clips, is rapidly becoming so free and recycling so reflexive that it is hard to imagine it being slowed, much less stanched, whatever happens in court."

The NYT's Randy Kennedy on Prince-Cariou, fair use, and appropriation.

"So it has come to this, eh?"

The Art Market Monitor:  Dealer Attacks Giacometti Foundation Director Over Fakes.

"What else, in times like these, might that kind of money be used for?"

Sebastian Smee feels a little queasy about the Peabody Essex Museum's recent announcement that it raised $550 million to "fund a massive expansion ...and to build up its endowment."

"Crystal Bridges is poised to make a genuine cultural contribution, and possibly to become a place of pilgrimage for art lovers from around the world"

Roberta Smith weighs in.

"A moral tragedy? Good lord."

More responses to Jeffrey Goldberg's broadside against Crystal Bridges.  Clive Crook says the two columns are "terrible," "among the angriest attacks on [Wal-Mart] I can recall reading, which is saying something. Coming from a writer I think of as a fount of common sense they shocked me."  And Michael Kinsley concludes:  "Walton could have put her museum in New York, where this sort of thing belongs. Most of us don’t get to Bentonville as often as we’d like. Or she could have decided not to build it at all, for fear that journalists would start comparing her to Marie Antoinette. Would that have been better?"

On Empty Spaces

Watkins College of Art professor Tom Williams is worried that "if people don’t step forward to defend [the Stieglitz] collection (and the university that houses it), and this deal goes ahead, it will disappear from this city for years at a time. These remarkable works will not be here for local schoolchildren and college students, and they will not be available to the larger Nashville community. Their habitual absence will leave an empty space in the culture of this city that may never again be filled."

"This deal," however, provides, that the collection will be there for local schoolchildren and college students for at least two out of every four years.  The rest of the time it will be available to the larger Bentonville community and its local schoolchildren and college students, filling an otherwise empty space in the culture of that city.

"The 2d Circuit's forthcoming decision in Cariou likely will be a significant landmark in the debate over appropriation art."

Says Paul Weiss's Lew Clayton.

"Artist Resale Royalties: Do They Help or Hurt?"

Kal Raustiala and Chris Sprigman at the Freakonomics blog.  Related post here.

"If the scheme is approved ..., an estimated 300,000 artists are due to receive funding."

EU proposes the world's largest ever cultural funding program.

"Goldberg is really attacking the foundation on which almost all American art museums are built" (UPDATED)

Bloomberg's Jeffrey Goldberg takes another whack at Alice Walton's Crystal Bridges Museum (previous whack discussed here).  Judith Dobrzynski is not amused.

UPDATE:  Lee Rosenbaum says "Goldberg has gone off the deep end."

"Is droit de suite really in the artists’ favor?"

Abigail Esman of Forbes has her doubts.

"Four Things to Know About the Nutty New Droit de Suite Bill Introduced in Congress Last Week"

From Artinfo's Shane Ferro.  Related thoughts from Lee Rosenbaum here.

"The theft of public sculpture has got to stop." (UPDATED)

Tom Flynn has had quite enough.

UPDATE:  Art Theft Central's Mark Durney weighs in.

"It's not a good plan to redress one perceived inequity by creating another."

Lee Rosenbaum, who says she has been espousing the cause of artists' resale royalties "since the '70s," is nevertheless not a fan of the recently introduced bill.

"The museum has hired a .. consultant ... to sell its permanent art collection. Some items have sold, and the proceeds were used to pay remaining creditors."

A reminder of what happens when we let them fail.

The end of the line for the Fayetteville Museum of Art. [via]

More on Artists' Copyright Claims

From Walter Robinson.

"Allowing museums to share in art royalties serves a double purpose, proponents of the federal bill said."

"As a matter of practical politics, it figures to put a potentially powerful constituency in their corner – just as excusing art dealers and individual collectors from paying royalties stands to preempt a good deal of potential opposition."

"Perez, a museum trustee, shifted the focus away from art -- from what matters -- to himself, putting patron above artist, money above art."

Here is an example of the Miami Art Museum's naming proposal drawing sharp criticism when other public institutions have been re-named with hardly a ripple of concern.

Are yoga poses copyrightable?

The Copyright Office says no.

"Visual artists deserve a share in the sales and resales of their creative works." (UPDATED)

The NYT's Patricia Cohen reports that resale royalty legislation has just been introduced at the national level:  the proposal is to "set aside 7 percent of the price of artworks that are resold for more than $10,000 at auction houses," half of which would go to the artist and "the other half to nonprofit art museums."

Some related posts here, here, and here.

UPDATE:  More from Helen Stoilas in The Art Newspaper:  "The legislation, as it stands, would only apply to the resale of works at public auction houses 'with more than $25 million in sales in the prior year'. Auction houses that operate only online would be excluded, as would private galleries."

"Arkansas is America too."

Bloomberg columnist Jeffrey Goldberg argues that Alice Walton's new Crystal Bridges Museum is "a moral tragedy" and a "compelling symbol of the chasm between the richest Americans and everyone else."  He says the museum was built on "the exploitation" of the Wal-Mart employees "whose sweat pays for her paintings."  He objects to Walton's "priorities":  she "has the influence to help Wal-Mart workers, especially women, earn more money and gain access to affordable health care," but instead uses her wealth to buy art for the museum.

Reuters' Felix Salmon has a good response here, under the headline "How Alice Walton has improved America."  He says, first of all, that the "sneer[ing]" Goldberg is looking a gift horse in the mouth:

"It’s not clear that Alice Walton does have a lot of influence within Walmart’s senior managerial ranks. Could Walton really help Wal-Mart’s workers earn more money and get better healthcare? Maybe she could; I’m not convinced. But here’s the thing: in what way does building a beautiful museum prevent her from doing just that? The only way, it seems to me, is if we’re in some kind of a zero-sum game, here, where the alternative to building the museum would be for Walton to take the money she would otherwise have spent on Crystal Bridges, and give it directly to Walmart workers."

And he says Walton's "impulses and her museum are admirable, whatever you think of Walmart":

"Walmart is a public company, now — it’s owned by hundreds of thousands of individual and institutional shareholders. ...Walmart has been good to Alice Walton, and she’s giving back to Bentonville and to America by building a fine museum in a part of the country which is relatively starved for cultural goodness. ... Well done to [Walton] for making that happen. Arkansas is a better place, now, thanks to Crystal Bridges, and Walton deserves our thanks. Not brickbats."

Judith Dobrzynski is with Salmon:

"Unlike many others in the art world, I have always believed that Walton was doing a good thing, bringing art to an area that sorely lacked the real thing. I have never understood the logic of those who complained about her efforts, as if non-city-dwellers should be content to travel to see art, and then, at the same time, argued for bigger government budgets for art .... I have no problem with the fact that she bought Kindred Spirits from the New York Public Library."

Fair use and appropriation

Joy Garnett live-tweeted yesterday's interesting panel discussion.

Selective Bereavement Syndrome

Saralyn Reece Hardy, director of the Spencer Museum of Art in Lawrence, Kansas, is "bereaved" because the Birger Sandzen museum in Lindsborg, Kansas sold a painting by Marsden Hartley.  "It's a loss," she says. "It's the reason we exist, to share our collections with the public and hold them there in good faith."

Funny how no one was bereaved over the dozens of works sold by other museums at auction last month.  I guess those museum do not exist to share those works with the public and hold them in good faith.

"There’s been a twisted interpretation that says Fisk has sold its art and it’s going away to this strange place in western Arkansas."

"We’re sharing this collection, and it will benefit not only people in Middle Tennessee and the young people at Fisk, but the people who are now traveling to a world-class museum in Arkansas where a collection of early American art will be there to see."

"A Canadian art authenticator has cast a wider net in his defamation lawsuit against The New Yorker ..."

"... , hoping to ream Gawker and about a half-dozen other media outlets and websites that publicized the magazine's original coverage."

Further thoughts from Lee Rosenbaum here.

Background here.

Is compiling a catalogue raisonné a "scholarly undertaking independent of the market"?

Cristina del Rivero says no:  "The inclusion/exclusion of a work submitted to a catalogue raisonné committee will affect its value on the market in a way not hugely dissimilar to an authentication board declaring a work 'Approved'/'Denied.'"  (She's responding to this piece by Jack Flam.)

"Why [has] this naming proposal ... drawn such criticism when other public owned institutions have been re-named with hardly a ripple of concern?"

Why indeed?  The Nonprofit Law Prof Blog looks at the latest crusade of the Hall Monitors.

Don't exert yourself

The AAMD's Chief Enforcement Officer continues to recommend that her organization "exert pressure" on Crystal Bridges for saving Fisk University from bankruptcy with a proposal that the Tennessee courts have found is the closest possible approximation of the donor's intent (complete adherence to such intent having been determined to be impossible), including keeping the works on the Fisk campus 50% of the time.  Yeah, I guess they should be punished -- I mean, have "pressure exerted" on them -- for that.  It is pretty awful.

Only Wrong When Brandeis Does It (a continuing series)

In today's New York Times, Carol Vogel reports that, to finance some repairs, Kenwood House in North London is "taking a page from American museums" and "will raise money by lending parts of [its] collections to other institutions."  Each borrowing museum "will pay Kenwood an undisclosed loan fee and cover the cost of insuring the art and preparing it for travel."

She meant to say rental fee for renting parts of the collection, right Hall Monitors?  Or is that only important to insist upon when we're talking about Brandeis and the Rose?  I just want to get the rules straight.

A little less chilly

In a case that previously "sent a chill down the collective spines of the major auction houses," Christie's has defeated the fraud claims brought against it by Guido Orsi.  The reason for the chilled spines was that Christie's didn't sell the work to Orsi; he bought it from someone else, who had bought it at Christie's.  But the claim was allowed to proceed anyway.

And proceed it did, until a couple of weeks ago, when the Court granted summary judgment for lack of evidence of fraud:

"Orsi primarily relies upon GB's [Basquiat's father, Gerard Basquiat] testimony with regard to knowledge and intent to defraud. ...[But] GB could not identify or even describe the person with whom he spoke [at Christie's], except to state that he was fortyish and blond, 'maybe 5'8 or 5'9 maybe' (GB Dep at 126-127, 130). GB testified that he did not know the man's name, the man was just wearing a business suit with no Christie's emblem, GB did not know the man's title, and the man did not say to GB that he was from Christie's Contemporary Art Department (GB Dep. at 130-131). ...When [asked] if he ever told anyone at Christie's that he thought it was a fake, ... GB clearly asserted, 'Never' (id.). He attested that he did not tell the man that the Painting was not authentic (id). GB stated that he did not tell anyone at Christie's that he thought it was a counterfeit and did not ask the man or Christie's to withdraw the Painting from the Auction (id. at 132-133). When asked about whether he told other Christie's employees, ... with whom he had significant contact before in connection with appraising his son's estate and selling some of the paintings, some of whom worked in the Contemporary Art Department, GB again answered 'No' (id. at 134-135). It is undisputed that GB took no further action in connection with the Painting. This testimony is insufficient to raise a genuine issue as to Christie's intent to defraud and to its knowledge. ... Under the proof presented, the trier of fact would have to assume that the anonymous and unidentified person with whom GB spoke, over 20 years ago, worked for Christie's, had some authority, and conveyed what GB told him to a person with authority at Christie's, to show that Christie's had knowledge and intent. This proof, at most, creates only a shadowy semblance of an issue, insufficient on a summary judgment motion."

So Christie's wins this battle, but the spine-chilling principle of the earlier decisions -- that an auction house can be sued by someone they've never done business with -- remains in place.

"The brief is compelling and well-written, and steps perfectly into the role of an amicus"

Nicholas O'Donnell was impressed with the Warhol Foundation's brief in the Prince-Cariou appeal.  I discussed the brief here.

"In the long run, permitting scholars to freely publish their opinions about works of art without getting entangled in complicated, expensive and often gratuitous lawsuits will benefit history and art history."

Dedalus Foundation president Jack Flam in the Wall Street Journal today:

"Since the exclusion of a work can greatly affect its market value, a good deal of pressure is sometimes exerted by owners of questionable works to have them included in the catalog. As a result, the scholarly authors of catalogues raisonnés have increasingly had to worry about potential lawsuits from collectors or dealers unhappy about the exclusion of works they own. ... As a result of this growth in litigation, many experts have been discouraged from giving opinions about authentication not only to the public but even to scholars studying other artists. Some artist-created foundations have entirely sidestepped giving opinions about authenticity by delaying the creation of catalogues raisonnés, or by declining to undertake supplements to already published catalogs. So far as I know, all such lawsuits have been unsuccessful, but they can nonetheless inflict an enormous loss of time and money on the foundations involved. ... There are laws, such as the anti-Slapp (Strategic Lawsuit Against Public Participation) statutes, that protect free speech for the public good. Since a substantial part of the U.S. art market is based in New York, the art community should work with that state's legislature to find a way to strengthen such laws so scholars can express their opinions without being intimidated or even silenced by the threat of litigation."

Everything You Ever Wanted to Know About the Knoedler Forgery Debacle But Were Afraid to Ask

From Julia Halperin at ARTINFO.

Art Law Decision by Judge Kaplan in the Southern District

You can read it here.  Plaintiff bought 18 paintings from defendant for $9.5 million, then sued "essentially on the theories that [defendant] misrepresented the 'fair market value' of the paintings and that four of them ... were not authentic."  A mixed result on the motion to dismiss -- the breach of warranty of authenticity survived, but Judge Kaplan didn't think much of the misrepresentation-of-value claims:  "Insofar as [this] claim rests on the assertion that the seller warranted that the paintings were sold at fair market value when, in fact, they were sold at prices higher than fair market value, the claim is without merit. As noted previously, there is no objective, discernable fair market value except perhaps for fungible assets traded on an efficient market."

"However impoverished an institution, selling its artworks is rarely deemed an acceptable solution by the art world and the press."

"But is it always the wrong thing to do? Fisk seems a good example to the contrary. The highly regarded institution, through no lack of effort, has not been able to fund itself effectively. O'Keeffe's magnificent gift has become a liability and Fisk has been unable to show it or look after it effectively. It does not intend to send the collection into private hands, nor to anyone who cannot take adequate care of it (Crystal Bridges is certainly not short of money with Wal-Mart behind it). In such circumstance, it is surely the the right choice to sell part ownership, rather than that Fisk should retain a collection it can't look after and cripple itself in doing so."

Elizabeth Emerson on the Fisk dispute.

Reves Lawsuit Against Dallas Museum of Art Dismissed

Emphatically.

Background here.

"Once a sculpture is stolen, the first source of information may be scrap metal dealerships."

The Art Loss Register's Chris Marinello:  The Flap Over Scrap -- Theft and Vandalism in Exterior Sculptures.

Pieta bonds?

Tyler Cowen:  "Of course it could never work, even though it makes economic sense."

"I think time will show that Mr. Lugo is someone who has been struggling with particular difficulties and went through a very difficult six-week-to-two-month period."

Not guilty plea for accused Picasso thief Mark Lugo.

"The point here is that the art market, like the stock market, runs on a combination of trust and storytelling ability."

Felix Salmon on the Knoedler news.

"One day after the Upper East Side’s 165-year-old Knoedler & Co. abruptly announced it would close its doors ..."

"... London hedge-fund executive Pierre Lagrange filed a complaint in Manhattan federal court alleging that the gallery sold him a forged Jackson Pollock painting for $17 million."

Related:  Federal Inquiry Into Possible Forging of Modernist Art.