"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.

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.

Headline of the Day

"Possibly Unhinged Sommelier Pleads Guilty to Brazen (and Sockless) Picasso Theft."

Background here.

A Primer on the California Resale Royalties Suit

From Andrew Russeth.

You can just stop

One more note on all those works flying out of the public trust in Philadelphia:

I liked this final quote from the Atwater Kent's new director, in response to those who wonder "what guarantees" are in place to ensure that there won't be additional sales "every time there's a debt."  His answer:

"I wouldn't permit that."

A great answer to the slippery slopists.  Once we sell one work, what's to stop us from selling thousands of works?  How do we keep from sliding down the slope?

The answer:  we just do.  We say:  I wouldn't permit that.

As I wrote in a related context about a year ago:

"If you're worried about paying your gas, electric, and water bills with deaccessioning proceeds ... don't pay your gas, electric, and water bills with deaccessioning proceeds.  ...  Problem solved. The slope really isn't that slippery. You just have to plow the roads now and then.  In fact, that's pretty close to the situation we have now. Works can be (and quite frequently are) sold for one purpose -- to raise acquisition funds -- and no one goes around worrying that, if we go down this road, we'll end up paying our gas, electric and water bills with deaccessioning proceeds. People understand that you don't have to slide down the slope. You can just stop."

Nine into one

I mentioned earlier this week that the Philadelphia Museum of Art is deaccessioning nine works that it holds in the public trust to be accessible to present and future generations.

What I didn't catch was that the proceeds from the sale of those nine works are being used to buy a work from another museum, the Atwater Kent Museum, which in turn is using the sales proceeds from its sale "to cover a $1.4 million construction loan."

It's a nice example of the absurdity of the Standard View on deaccessioning.

Financially stable large museum sells off nine works:  absolutely fine.

Small museum drowning in debt sells off a single work:  deplorable.  (For example.)

The only difference is the use of proceeds, but no one has ever explained why one use of proceeds (buying ever more art) is privileged over all others.

Or did I miss that?

"Until now, city laws have equated murals with commercial signs."

But "the Los Angeles City Council for the first time agreed this month to draft a new ordinance that would allow some murals."  LA Times story here.

Sentencing in Clementine Hunter Fakes Case

Two years probation, plus $400K in restitution.  Story here.  Background here.

"Charitable giving to the arts ... was up more than 5 percent last year."

NPR:  Arts Giving Is Up, But Hold The Applause.

Jim Johnson holds his:  "Yes, even during difficult times the rich often give buckets of money to charity. But it is important to keep your eye on the ball, because their philanthropy does not go to the poor, oppressed and downtrodden."

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

The Philadelphia Museum of Art is deaccessioning nine works from its collection of American art, five of which will be sold through Christie's next month.

Fortunately for the museum, those nine works just happened to be works that were somehow not held in the public trust, to be accessible to present and future generations, even though they had fallen under the aegis of a museum.  Whew.  What a lucky break.

Similarly, their sale will not cause potential donors to say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?  This is not the kind of sale that will make anyone say that.  Other sales will make people say that.  But not this one.  This one clearly will not have that effect.  Don't be so touchy.

"In [the settlement], the university says it has no intentions to put any of its art up for sale, but it does not say outright that it will never sell art."

That's from Judith Dobrzynski's report in The Art Newspaper on the return of the Rose Art Museum.  The initial round of press missed this point.

Charitable Giving Still Behind Pre-Recession Levels

Details here.

"That any of these works are being shown publicly now is the result of a complex set of private legal agreements between the individuals who many years ago discovered them, received them as gifts or purchased them and Ramirez’s heirs."

From the New York Observer.

More on the California Resale Royalty Suit

Apparently there is a third suit, against eBay.

And some commentary, plus links to the complaints against Christie's and Sotheby's, from Nicholas O'Donnell here.

More on the Warhol News

More coverage on the announcement yesterday that the Warhol Foundation is shutting down its authentication board.  Charlotte Burns in the Art Newspaper.  Kelly Crow in the Wall Street Journal.  Paddy Johnson:  "Holy shit."  And Reid Singer:  "Starting in 2012, the commercial work of 'authenticators' will be separate from the scholarly work of art historians. I doubt that art history will be affected in any significant way when we find out that such-and-such an edition of fifty prints were actually made by a studio assistant and sold for something illegal. Answering these kinds of questions shouldn’t be a major part of the Warhol Foundation’s job."

Resale Suit

The other big art law story today:   twin class-action lawsuits against Sotheby's and Christie's alleging violations of the California Resale Royalty Act.  Jori Finkel's LA Times story is here.  Kelly Crow in the Wall Street Journal is here.  Lee Rosenbaum has some thoughts here.

"In recent years, the foundation has been involved in legal disputes over its authentication process for works whose owners said they were by Warhol."

The Andy Warhol Foundation is dissolving its authentication board.  Carol Vogel's story is here.  Foundation President Joel Wachs told ARTINFO:  "I don't want to spend $7 million a year on lawyers."

Another "monetization" horror story

The New York Times:  "Barnstorming Masterpieces Move Into the Home They Helped Pay For."

So gross and icky and repulsive.

Or is it only wrong when Brandeis does it?

(Related post, from just a couple days ago, here.)

"I can tell you from my experience, large donors are very sensitive to the tax code."

The Hill has a report on today's Senate Finance Committee hearing on the charitable deduction.

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

Lee Rosenbaum:  "November is rapidly becoming Deaccession Month."

The latest:  MoMA is selling a Rufino Tamayo painting with "a distinguished exhibition history":  it's "been in the museum's collection since 1953...and has been included in exhibitions at the Metropolitan Museum of Art...and Tate Gallery."

Hey, isn't a work like that held in the public trust, to be accessible to present and future generations?

I guess not so much.

Lee explicitly connects this Tamayo to another one that was deaccessioned, by Randolph College a few years ago.  That sale, or course, was the Worst Thing That Ever Happened.  (Lee is still having "traumatic flashbacks.")

This sale of a Tamayo, on the other hand?

Come on, don't be so touchy.

How does the authenticity guarantee work in this case?

"Sotheby's to sell real drawing by fake artist."

Senate Hearing on Charitable Deduction

Tomorrow morning at 10 a.m.  You can follow it here.

Related, from Philanthropy Daily:

"Non-profit leaders understand that a reduced limit on tax deductions for charitable giving would crimp the giving of wealthy donors. While one might wish that wealthy donors might give just as much when the tax incentive was reduced, non-profit leaders recognize that this simply isn’t the case. Why? Economists have a straightforward explanation of such behavior: people buy less of something when its price goes up. Economists call this the 'price elasticity of demand,' which is a measure of how much demand for a good stretches as its price drops and how much amount demand for a good contracts as its price rises."

"Artist Can Paint Nude Models Only After Dark"

Reuters:  "An artist arrested for applying body paint to a nude model in New York's Times Square will have charges against him dropped if his models strip naked only after dark, according to a court agreement reached [last] Thursday."

"There is of course a considerable fee that the High is providing us."

The Atlanta Journal-Constitution on MoMA's alliance with the High Museum.

File under:  only wrong when Brandeis does it.

Authentication Panel

Columbia Law School's Kernochan Center has organized a symposium on October 28 titled "For Real? Legal and Economic Perils of Art Authentication."  Details here.  The last panel should be particularly good, but the whole thing sounds outstanding.

"I think both parties are in a poor position to prove ownership to the exclusion of the other."

Erie County can't sell the Hassam they've been thinking about selling ... because it's not clear they own it.

More on the Barnes Dismissal

Not as much reaction as I would have thought to the dismissal of the latest challenge to the Barnes move.  Maybe it was such a non-surprise that it isn't worth commenting on (though I'm sure it came as a surprise to some).

The LAT's Mike Boehm has a report here, including that the Friends plan to appeal.

Nicholas O'Donnell says that the case "is a reminder that no matter how important a museum is to a member, donor or visitor, he or she is almost certainly not going to get through the courtroom threshold to complaint about it."

And Christopher Knight trots out the tired old argument that "a monstrous question mark now hangs over the future of charitable donations of artistic masterpieces in the U.S":  "Any number of potential living benefactors are among those watching the tragic Barnes saga unfold, and they are wondering the same thing: If his will was not sacrosanct, what about mine?"

To which I will trot out the same old responses:

1.  No one's will is sacrosanct.  Wasn't true when Barnes made his gift, isn't true today.

2.  Let's get real.   Or as lawprof Alan Feld put it:  "This disincentive should have only modest effect on rational donors who see that the modification of conditions results from the combination of changed circumstances and the passage of a long period of time."

3.  This is especially so since, as James Panero has shown, "the seeds of destruction were sown by the hands of Barnes himself" through "overly restrictive operating guidelines" and "leadership problems."  The Barnes really is a unique case.  It doesn't provide a very good precedent for a lot of future donor-intent trampling.

4.  In fact, if anything, the case sends exactly the right message to those potential living benefactors who are so intently watching the case unfold as they decide what to do with their masterpieces:  "Do we want the message to potential donors to be, no matter how poorly you structure your gift, no matter how overly restrictive your operating guidelines, no matter how ill advised your investment limitations, we will never violate your intentions?"

BREAKING: Barnes Friends Lose

The Barnes Friends' latest challenge to the move has failed.  The decision is here.  As predicted, not only did they lose, they've also been sanctioned.  Some highlights:

• This dismissal was, unsurprisingly, on standing grounds.  The Court said "presently, we have essentially the same party [as in the 2008 petition] making exactly the same argument.  This is well-trod ground, and we must reach the same conclusion as we did in 2008. ...  The law of standing in matters involving charities is crystal clear and forecloses the possibility of the Friends' pursuing the instant petition."
• On the question of the Attorney General's supposed lack of "neutrality," the Friends "offered no case or other authority in support of this theory of mandatory impartiality."  The AG argues that its actions were "part and parcel of its responsibilities under the law that helped achieve a result that was in the best interest of the people of the Commonwealth.  We have no basis for finding fault in this stance."  Exactly.
• The Court points out that the "multimillion dollar appropriation" that opponents of the move go on and on about "is not news" and was explicitly discussed in the 2008 opinion.  I made the same point here (see second update in particular).  It adds that "the perception that this appropriation is a smoking gun in this matter has always left the Court somewhat mystified.  The appropriation was earmarked to fund a new building for The Foundation in Philadelphia.  Surely, even the most vehement critics of our decision in 2004 do not believe that, had the existence of the budget item been known at the hearings, the Court could have directed the legislature to redirect the funds to the existing gallery in Merion or sent The Foundation off with instructions to accomplish this on its own."
• A second, related petition filed by Richard Feudale "merit[ed] little discussion."  He, "as an attorney, must be cognizant of the chaos that would ensue if anyone with an opinion about The Barnes Foundation was permited to be heard.  Simply put, he lacks standing ...."
• On the question of attorneys fees, the Court sanctions both Feudale (whose filing is "the epitome of vaxatious, arbitrary and bad faith conduct") and the Friends, whose "resurrection of the budget appropriation item as a basis for standing, which this Court rejected in 2008, renders their filing sanctionable as well."

More later.

"One thing that bankers and painters have in common is that their services are Veblen-like: the more expensive they become, the more demand there is for what they do."

Felix Salmon on the art market.

Erie Hassam Update

Erie County officials continue to repulsively discuss the sale of a Childe Hassam hanging in their public library.  The proceeds would repulsively be used to seed an endowment for library collections.

Don't they know that they can't do that because the work is held in the public trust, to be accessible to present and future generations?  I mean, just ask the Brooklyn Museum.

It's not like it's the Season of the Museum Disposals or anything.

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

Lee Rosenbaum reports that this fall "is fast becoming the Season of the Museum Disposals."  The latest to get into the game is the Brooklyn Museum, which is selling off a work by Russian artist Vasily Vereshchagin.  The museum says the work "merits greater study and exposure than it could get here."  (It's kind of a Humane Society!)

It's a good thing that it's not the case that once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations -- because, if it were, that would really be a problem for this sort of thing.

Hot Hot Art

Chasing Thieves and Detectives through the Secret World of Stolen Art.

"To get into the museum so fast by disassembling a window, choose five specific works and then slip out unnoticed by the guards, that is quite impressive."

Three arrests in the big art theft in Paris last year.  But the works are still missing.

"Copyright is an uncomfortable meeting point between law and art."

The Brooklyn Rail on Cariou v. Prince.

VARA Follies

I have a piece in the new Art Newspaper on some strange recent decisions under the Visual Artists Rights Act.  It goes along with this story by Emily Sharpe about the increasing vandalism of LA's murals.

"Watching a museum die is painful."

Judith Dobrzynski reports on the closing of the Fayetteville, NC, Museum of Art.  This is a case where deaccessioning could not have kept the museum afloat -- "of 22 works offered in a live auction [last week], just six sold -- bringing a total of $13,000" -- but it's an important reminder of what happens when we let a museum go under.  If we prevent them from selling one work (or two, or three) to stay solvent, then the result may be that they end up selling that same work anyway ... along with every other work in the collection.  Clearly, that's much better.

That certainly seems to be the implication of Lee Rosenbaum's grilling of National Academy director Carmine Branagan, three years after the museum sold two paintings from its collection to pay operating expenses.  Branagan says they "profoundly" regret the loss of the two paintings, "but there was no choice. There was no choice! So the collective Academy made the decision that staying open and being able to have the opportunity to continue this historic legacy was what was important. ... If the decision was made not to do it, the Academy wouldn't exist."

That's not good enough for Lee, who issues Branagan a Deaccession Police citation for Insufficient Remorsefulness and forwards her Incident Report to the AAMD bureau ("I can't imagine that AAMD's arbiters of museum ethics will be pleased by Barnagan's responses to my questions").

So just to review:

Selling two paintings to keep from having to close a 175-year old museum:  Deeply, deeply troubling.  "Deplorable."  Repulsive. The AAMD would like to have a word with you.

Selling eight paintings -- including works by Monet, Gauguin, and Pissarro -- to buy a single work by Caillebotte:  No problem.  Knock yourself out.  Kind of a Humane Society.  It's not like there aren't thousands of other pictures at the museum.  Get a grip.

(I do note that, alone among the Deaccession Police, Lee opposed the latter sale too -- because it violated her principle (which is not, it's worth noting, the principle of the AAMD or the New York Board of Regents) that only works "deemed unworthy of the museum's collection" should be sold.  But her criticism of that sale -- which you can read here -- is extremely mild in comparison to her criticism of the "deplorable" National Academy sales.)

In the course of making the case for the eight-for-one deaccessioning, Boston Globe art critic Sebastian Smee says the following:

"[I]n cases like these, I think, it's important to be realistic, and not to take refuge in principle. (Principles are fine, but they have a habit of short-circuiting active thought and judgment)."

I couldn't agree more.  In the Great Deaccession Debate, it's the AAMD, the Brodskyites, the Deaccession Police who want to take refuge in principle.  They have their principle, their prissy fatwa -- thou shalt not sell except to buy more art -- and they cling to it, against all reason.  They are the enemies of active thought, and of judgment.  It's actually a little repulsive.

Did Albert Barnes intend to have a website?

And how did he feel about the color orange?

Someone call the donor intent police.

"The bottom line is that this development has little or no effect on the substantive question of infringement that the Court of Appeals will be called on to review in the coming months."

Nicholas O'Donnell on the recent denial of the motion to dismiss Richard Prince's appeal.

Saved

The Folk Art Museum will stay open.

"Please. Someone, everyone, do something to save the American Folk Art Museum from dissolution and dispersal."

Roberta Smith says "the transfer and dispersal of the collection should be fought to the bitter end, with every ounce of passion and ingenuity that the museum and its supporters can muster."

The museum's "erasure from New York’s cultural skyline would be a tremendous loss, for the city in general and for its role as a center of both art viewing and art making."  We "need the creative energy of this stubborn, single-minded little institution, its outstanding exhibition program and its wondrous collection, an unparalleled mixture of classic American folk art and 20th-century outsider geniuses."  "All options" must be "thoroughly considered."

But ... are "all" options really being considered?

It seems to me this is a perfect test of the sanity of the absolutist position against deaccessioning.  It would be a "tremendous loss" for the museum to close.  We should fight to the bitter end to save it, with passion and ingenuity.

Okay.  So if we could save the institution through the sale of some work, why would we not do that?

Remember:  museums sell work all the time.

Just this morning, we saw a report that the MFA Boston is selling eight paintings -- including works by Monet, Pissarro, Sisley, Renoir, and Gauguin -- to buy a painting.

How can it be okay to sell work to buy a painting, but not to save the insititution?

Does that really make sense to anybody?

Are we serious about saving the Folk Art Museum or do we just want to stand around wringing our hands about "ethics"?

Please.  Someone, everyone.  Do something.

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

The MFA Boston is selling "eight paintings from its collection, including works by Claude Monet, Paul Gauguin, Alfred Sisley, Camille Pissarro, and Auguste Renoir. The works, valued at between $16.6 million and $24.3 million, were all gifts to the MFA."

Remember:  once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations.

And if this sale is allowed to go forward, somebody will say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?

Yeah, right.

"The president thus will inhibit giving by making it less attractive to give. And this will impose pain on the recipients."

Fay Vincent in the Wall Street Journal.

"A nice move if you want to preserve the museum as a playground for the privileged and the rich"

Laurie Fendrich is not a fan of MoMA's new $25 admission fee.

"Today’s proposal is the same plan that President Obama outlined in the spring as a way to cut the budget deficit and earlier in his presidency as a way to pay for the health-care bill."

"Nonprofit groups said they are prepared for a similar fight in the face of the latest plan."

Prince Appeal Moving Forward (UPDATED)

The NYT's Randy Kennedy reports.

UPDATE:  Sergio Muñoz Sarmiento says this is nothing major:  "Basically Prince continues with his appeal, but all this means is that his appeal can begin before the damages trial."

The Saddest Day Ever

May 19, 2012.

Sad because that's the day people can start seeing the Barnes Collection in this place rather than in that place, four and a half miles away.  Those four and a half miles of course make all the difference.  How can we even go on?

The Simplest Art Fraud Ever

Gets busted.

Stolen Art Alert

A Renoir has gone missing in Houston.

"Funding a jobs program by reducing charitable gifts does seem to be a strange way to improve the economy."

Robert Frank on the Obama jobs bill.

"White House Would Cut Deductions to Pay for Its Jobs Plan"

Including charitable deductions.

Similar proposals have come up before, but never went anywhere.

"This is not a surprising result, since artists have focused on active youths, outsiders and nudity as artistic subjects since the beginning of time."

"Gordon will have to share her ravers, ramblers, and raucous figures with other photographers who choose to focus on such common themes."

Banksy Ownership Dispute Resolved

"Artists at 555 Nonprofit Gallery and Studios received clear title to the mural as part of a $2,500 settlement reached earlier this summer with the company that owns the decaying Packard Plant in Detroit."

Background here.

"Denying copyright protection to works of art involving living materials not only performs a disservice to individual innovative artists, but acts contrary to years of case law and violates the constitutional principle of promoting the useful arts."

Volunteer Lawyers for the Arts has filed an amicus brief in support of Chapman Kelley's Supreme Court cert petition.

"It is now in a private collection, and hasn't been seen in years."

Judith Dobrzynski makes a deaccessioning discovery on a Labor Day visit to the Met.

Tell me again about the public trust.

Gordon-McGinley Update

McGinley moves for attorneys' fees.

"If bigger doesn’t result in better, the Whitney will have done New York a terrible disservice, one that could have been easily avoided if only it had raised funds by selling a few artworks out of its vast holdings."

"But 'de-accessioning'—the selling of artworks from the collection—is a no-no in the museum world."

Adam Lindemann on the Whitney's upcoming move downtown (and related subjects).

Philadelphia Museum Insurance Suit Dismissed

In the ARTnewsletter [$], Daniel Grant reports that the Philadelphia Museums' "Frigon" claim against AXA Insurance was dismissed this summer because "the museum had not filed its lawsuit within its one-year allowance outlined in the insurance contract."  The museum was also "ordered to pay the insurer's defense costs."

"Shopping the Museum Archives"

"In a bid to boost recession-depleted coffers, museums are scouring their storerooms for artworks to sell online."

Is that material held in the public trust?  It's hard to keep track of the rules sometimes.

"The suit against Gagosian was dismissed because, as the judge pointed out, the gallery employees could not be held responsible for the excessive force used by police."

Artinfo's Julia Halperin has the details.

"Brownback's press secretary ... said the governor wants the arts to thrive in Kansas -- but not with public money."

Kansas is "the first state in the country to effectively do away with its state arts agency."

Related thoughts here.

"Times when I suddenly become willing to jump through hoops: when it will get me a $250,000 drawing."

Reid Singer on the stolen "Rembrandt" in LA:  "Weirdness and WTFness abound."

"I really find it staggering how many people can’t see the difference between stealing a physical object and copying something you don’t have permission to copy."

Matthew Yglesias on copyrights and wallets.

Possible Defense: "Well, excuuuse me!"

"Forgers Who Duped Steve Martin Go To Trial."

Earlier post here.

"Do we really want someone controlling the fate of $30 billion of art 60 years after his death . . ."

". . . pursuant to instructions that make no sense at all if one is concerned about the art as culture?"

Peter Friedman on the Barnes.

"We can't for the life of us verify that it is a Rembrandt"

"Investigators are refusing to return a purported Rembrandt drawing that was stolen from an auction at an upscale hotel and then recovered last month, citing questions about the authenticity and ownership of the piece."

"The Weirdest Art Case Ever?"

Artinfo's Shane Ferro breaks down the "bizarre" SpongeBob SquarePants legal battle.

New Issue of Journal of Art Crime

The Spring 2011 issue of ARCA's Journal of Art Crime is out.  I wrote about the following question:  "Can a state declare an entire subject matter off limits to photographers?"  (Short answer:  No.)

"Why do thieves take the risk of stealing works of art so well-known as to make their resale impossible?"

A review of two new books on art theft.

Odd Nerdrum Sentenced to Prison in Norway for Tax Evasion

The NYT's Robin Pogrebin has the story.  He plans to appeal.

Barnacles

"A former lead artist on the cartoon series 'SpongeBob SquarePants,' who faces a lawsuit from his art dealer concerning what she says was his hiring of accomplices to burglarize her gallery, has fired back with his own suit, accusing her of fraud."

Background here.

Art Dealers Behaving Badly

Part I.

Part II.

(via)

"By attempting to do an analysis of this kind but not doing it comprehensively, the real value of the exhibition gets lost amid the noise."

Bad Culture's Jon Treadway has some questions about that economic impact assessment commissioned by the Virginia Museum of Fine Arts that I mentioned earlier here.

"Right now we're living off our reserves"

Another museum in danger of closing.

"At the time the fecal matter was discovered, the Gallery was open to the public."

Sperone Westwater Gallery is suing sculptor Charles Saulson, who "has been feuding with the adjacent eight-story gallery since the $20 million art house, which has a strip of black rubber butting up against Saulson's building, was erected two years ago."

Life Goes On

At the Barnes:

"In the 2012-13 academic year, on the parkway, things will return to the way they were in Merion before the closing - with a difference: Students will again be taught in front of the ensembles of paintings, sculptures, and decorative objects, but classroom sessions will continue. Who knows? Perhaps the new order of art-plus-JPGs will prove to be more effective and popular than the old. But we won't know that until the relocated Barnes opens its doors."

"Options Dim for Museum of Folk Art"

That's the headline on a follow-up in yesterday's New York Times about the possible closing of the Folk Art Museum.

Again, one option that's not even mentioned is a sale of part of its collection.

For example:  the museum owns "the single largest public repository of works by Henry Darger."  I know I'm famously deaccession-friendly, but suppose, for the sake of argument, that a sale of that collection to another institution (thus satisfying the Ellis Rule and keeping the works in the public trust) could raise enough money to fully solve their financial problems.  Wouldn't that make sense as an option?

Would you rather have the Folk Art Museum continue to exist, minus the Darger collection?

Or would you rather it completely dissolve?  Sure, its collection could be transferred to other institutions, but as one of its curators tells the Times:

"Neither [such institution] would fulfill the function of a stand-alone folk art museum.  We are so much more than the sum of our collections. We’ve played a very pivotal role in the development of this field. The contribution in terms of the scholarship would no longer occur, and that would be a tragedy."

It would be a tragedy.  And the options are dimming.  Doesn't it make sense to at least have this conversation?

"Infringement claim smacked down"

Rebecca Tushnet has a detailed analysis of the decision in Gordon v. McGinley.  She thinks a fee award "would be well justified."  In the comments, Bruce Boyden adds, "based on the photographs I've seen, it seems a good candidate for Arnstein v. Porter's exception for a suit alleging Bolero infringes on When Irish Eyes Are Smiling."

Art theft on the rise

I'm quoted in this Art Newspaper story on the recent spate of high profile thefts.

"I think the civil jury here has sent a strong message to those dealing in stolen art that there will be a price to pay for that activity."

"Michael Bakwin, who was the victim of the largest residential theft in Massachusetts history when art was stolen from his house in the Berkshires in 1978, won a $3 million civil judgment yesterday against the man who possessed the artwork for more than two decades and tried to sell it."

The defendant was Robert M. Mardirosian, "a retired criminal defense lawyer, [who] was convicted in federal court in Boston in August 2008 of possessing six of the stolen paintings and was sentenced to seven years in prison."