Wednesday, March 30, 2011

Barnes News

The hearing in the Barnes case yesterday seems like it was a non-event:  the Judge set a briefing schedule; the Barnes and the Attorney General have until mid-April, then the Friends have until the beginning of May to respond.  Stephan Salisbury has a report in the Philadelphia Inquirer.

He also reports that yet another petition opposing the move was filed this week, this one by Richard Ralph Feudale, a lawyer and the author of Barnes Rune 2012 (Decoding the Mysteries of Pennsylvania's Barnes Foundation, A Special American Place).

Salisbury also has this quote from someone from the attorney general's office:

"He argued that his office, charged with protecting the public interest in regard to nonprofit charitable organizations, was not a neutral observer.  'We determine the public interest,' he said. 'We're an advocate. In this case, we advocated along with the Barnes Foundation [for the move], because we thought it was the best way . . . to maintain the Barnes.'"

I think that's exactly right.  I've never understood this notion that it was somehow wrong for the AG to push for the move.  Once he decided that, all things considered, that was the best outcome, what was he supposed to do?  When Lee Rosenbaum calls, for example, for "Super Cooper" to block the Fisk deal, isn't she calling on him to take a side in the dispute?  Does his having done so open the court's decision up to challenge on the ground that the attorney general favored one side in the dispute over the other?  The Friends petition accuses the AG of "forfeit[ing] his neutrality" (e.g., paragraph 22), but, if he has, then hasn't Super Cooper done so as well?  It's just a fundamental misunderstanding of the attorney general's role.

"We thought it fell under fair use." reports that, in order to distinguish synthetic DNA from its natural counterpart in an experiment they were doing, geneticist J. Craig Venter’s team coded several famous quotes into the synthetic version, including James Joyce’s: “To live, to err, to fall, to triumph, to recreate life out of life.” But, "after announcing their work, Venter explained, his team received a cease and desist letter from Joyce’s estate, saying that he’d used the Irish writer’s work without permission."

As James Grimmelmann notes in the first comment here, "you would think the Joyce estate had learned nothing from Shloss v. Joyce" (about which see here).

"I thought I better recover the photograph before he goes underground, destroys it, or tries to sell it to someone who is not going to return it."

An important Czech photo, stolen from a Prague museum earlier this month, is found.

Saturday, March 26, 2011

Barnes Update (UPDATED 2X)

The Philadelphia Inquirer's Stephan Salisbury reports that the Barnes Foundation and the Pennsylvania Attorney General have filed their responses to the Friends of the Barnes's latest attempt to reopen the case opposing the move: "In [the latest] petition, the Friends of the Barnes asked Judge Stanley R. Ott, who has presided over the case since 2002, to take another look, based largely on quotes from the 2009 documentary movie The Art of the Steal. The Barnes and the attorney general argue in their responses that there is nothing new in the opponents' legal briefs or the movie, and that the Friends of the Barnes and its members cannot intervene in the case anyway because they have no legal standing."

UPDATE: The Main Line Times has more, including that the Barnes and the AG have asked for their attorney's fees. I'm not surprised.

UPDATE 2: LA Times art critic (and Art of the Steal talking head) Christopher Knight discovers a "surprise" in the motion: one of the five Philadelphia Inquirer stories cited in support of the proposition that the information in the petition is "not new" is from 2005, five months after the court ruled that the collection could be moved. That's true, but it's worth noting that there was a second petition filed in 2007 (by some of the same parties who've brought this third suit), which the court dismissed three years ago. So the 2005 article is "not new" in the sense that it preceded that second lawsuit.

"The case illustrates the financial risks of the art market and highlights the difficulty of valuing an artist's work."

The Wall Street Journal's Robert Frank has more on Norman Waitt's lawsuit against Gerald Peters Gallery.

Wednesday, March 23, 2011

We Demand That You Not Close the Museum You Are Not Closing (a continuing series) (UPDATED)

Brandeis is renovating the Rose. Judith Dobrzynski has the story.

UPDATE: The Boston Globe has more: "major renovations" to protect the collection "for the long haul."

Sunday, March 20, 2011

Big Fair Use News: Patrick Cariou Prevails in his Copyright Lawsuit Against Richard Prince (UPDATED 3X)

Rob Haggart has the details. The decision is here. Background, including predictions of an easy win for Prince (in response to which someone says: "I wouldn't be so sure: litigation is always uncertain, and never more so than when it comes to appropriation art"), here. Back with more after I've had a chance to read the decision.

UPDATE: I've now read the decision, and the key bit is that the court rejected the fair use defense because, as Artnet's Walter Robinson puts it, "Prince's works do not specifically comment on Cariou's originals." (Robinson says: "Face it, the notion of 'appropriation' just doesn't play well in our law courts.") The NYT's Randy Kennedy writes that "Judge Batts wrote that for fair-use exceptions to apply, a new work of art must be transformative in the sense that it must 'in some way comment on, relate to the historical context of, or critically refer back to the original works' it borrows from."

That hasn't always seemed to be a requirement in other fair use cases. In Blanch v. Koons, for example, the Second Circuit noted that Koons used "Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media" (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch's image). Quoting the Supreme Court's Campbell decision, the court said the test of transformativeness is whether the later work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." It's hard to imagine, to take another example, Shepard Fairey's Obama image passing muster under Judge Batts's standard. (That image was many things, but a commentary on the underlying photo was probably not one of them.)

Sergio Muñoz Sarmiento says the decision "give[s] credence to my theory that courts are increasingly becoming agitated with this 'free-for-all' mentality of certain artists when it comes to appropriating and commercializing off of other artists’ works."

The Copyright Litigation Blog's Ray Dowd says "the opinion is noteworthy and will basically EXPLODE the contemporary art world."

Charlie Finch says "having a judge as an interpreter of the meaning of art remains Kafkaesque: we can trot out the entire oeuvre of Andy Warhol, Robert Rauschenberg and a thousand other artists as violators of Judge Batts’ standard. But what of photographer Cariou? Is he not an artist, as well?"

Photo Teacher Paul Turounet "wonder[s] what this might mean for artists such as Thomas Ruff, Penelope Umbrico, Doug Rickard and Michael Wolf, appropriating imagery from the internet, including various search engines, Google Streetview and Flickr?"

Finally, good summaries of the decision from The Art Newspaper's Charlotte Burns and David Walker of Photo District News.

UPDATE 2: More reactions coming in. Ed Winkleman: "The ruling was a chilling decision for artists who work in appropriation."

Peter Friedman: "We need not go so far as to conclude that Cariou’s lawsuit signals the death of appropriation art in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how plainly and directly Prince’s appropriations damaged Cariou’s opportunities to economically benefit from his own work, the outcome (if not all of the reasoning) of this new case is obviously correct" (emphasis added).

Greg Allen, on the other hand, still can't believe Prince "somehow lost his open & shut copyright infringement case," and says the whole thing is "basically a flabbergasting shitshow":

"If it stands, it would have major, sweeping, and stifling effects. Not only would the current operating assumptions of fair use and transformative use be ratcheted way back, but the contemporary art world would be turned upside down. It would restrict both how artists appropriate, or even refer to, copyrighted work. And it would turn galleries into copyright police, with an affirmative responsibility to clear images, sources, and references for the work they show and sell. If visual artists and the art market have been operating in some kind of an appropriation bubble, this decision would pop it. Artists would have to adopt the sampling, licensing, and rights clearing practices and infrastructures of the music industry . . . . [T]he decision has some glaring omissions and relies rather heavily on almost-20-year-old textbooks and articles from law journals, while ignoring several highly relevant, recent decisions. The most notable ignored precedent is Blanch vs. Koons (2006), which happens to involve another Gagosian artist, and which seemed to set out a workable test of transformative use."

UPDATE 3: Interesting interview with Cariou here.

Thursday, March 17, 2011

"A report in today's BNA Daily Tax report is sending shivers down the spines of tax-exempt organizations." (UPDATED)

The Nonprofit Law Prof Blog explains why.

UPDATE: Michael Rushton comments.

"There's a whole constituency in the art world that acts like hall monitors, policing the manners of everyone." (UPDATED)

That's Peter Schjeldahl, quoted in Judith Dobrzynski's follow-up to her New York Times article today on the growing prevalence of single-collector exhibitions. She adds that "he, like so many others, just wants to see art that's normally behind locked doors." Also: "This certainly should not be the third-rail kind of issue that some art pundits want to make it." Very few of them are.

UPDATE: The Art Market Monitor: "Dobrzynksi makes an excellent argument for the essential role of collectors in defining collecting fields and amassing collections that no institution could ever form by committee."

"Berry-Hill stacks up lawsuits"

The Art Newspaper's Martha Lufkin reports.

"The Trust had five legs welded to the bottom of 'Lagoon,' a matter on which the artist was never consulted."

Anthony Caro disowns a work altered by its owner.

"Museums exist to educate the public and delight them; it makes sense to feature these collections if you can."

Museums around the country are embracing single-collector exhibitions.

Wednesday, March 16, 2011

"This settlement marks the final resolution of the disputes over our rights in the AP’s photograph of Barack Obama."

It's finally over.

More on the Adams Settlement

The New York Times has a story this morning on the Ansel Adams settlement. The gist of it is that "it is not exactly clear just what has been resolved, beyond a cessation of name calling," but it seems to me that, if the settlement ensures that Norsigian "cannot use Adams’s name in selling prints from the negatives," then the Adams Trust has gotten prety much what it wanted out of the suit.

Tuesday, March 15, 2011

"First came jail and a whopping fine."

"Now, [LA] City Atty. Carmen Trutanich is seeking a one-of-a-kind court injunction to bar Gheorghiu from profiting from art bearing his telltale 'tag.'"

Adams Settlement

The Ansel Adams lawsuit has settled:

"Under said agreement, Rick Norsigian and PRS Media agree to not use Ansel Adams' name or likeness or the ANSEL ADAMS trademark in connection with the sales, promotion or advertisement of [the works at issue]. Norsigian and PRS Media may continue to sell [such works], subject to a disclaimer approved by The [Adams] Trust, and provided they do so in a manner consistent with state and federal law. Further, both parties have agreed not to make any defamatory statements about the other or unlawfully interfere in each other's businesses."

Thursday, March 10, 2011

That's the thing about legal rows

They tend to escalate.

The Art Newspaper's Charlotte Burns has the latest developments in the Ansel Adams litigation.

Wednesday, March 09, 2011

The Next Fair Use Case

Involves Mr. Brainwash (of Exit Through the Gift Shop fame) and Run DMC. The Art Newspaper has the story.

FYI, it will soon be a felony to photograph farms in Florida

Eugene Volokh has the details.

Tuesday, March 08, 2011

"This provides us with a great cushion, so that that we can continue the quality and variety of art projects in the park."

I meant to flag this one before the weekend, but Carol Vogel's latest Inside Art column included a little report that the non-profit Madison Square Park Conservancy had sold two pieces given to it by Sol LeWitt in 2005. The sales raised $1.4 million.

The Art Market Monitor's post about it carried the headline "Madison Park Deaccessions LeWitt Sculptures," which I thought was very clever, because obviously no one has (or could have) any problem with the sale. We can all agree that the Madison Square Park Conservancy is not repulsive. So the case against deaccessioning does not reside in the non-profit status of the selling institution, as some have tried to argue. We recognize that the Madison Square Park Conservancy has a larger mission that can be advanced through the sale of these works. So too with other types of non-profits, like medical schools. So why is it so difficult to admit that museums also have larger missions that can, in the right circumstances, be served through the sale of some work?

Friday, March 04, 2011

"Engel said it wasn't worth the time and trouble of trying the case."

The LAT's Mike Boehm reports that Clint Arthur's pointless lawsuit against Louis Vuitton has settled, "for a $12,000 refund, plus interest — what Louis Vuitton had offered before he sued."

So to recap:

In the summer of 2008, Arthur sued LV for violating the California print disclosure statute in connection with the sale of some works by Takashi Murakami at his exhibition at L.A. MOCA earlier that year. At the time, I wrote that there was something odd about the claim:

" As I read the statute, the available recovery for a violation is 'the consideration paid by the purchaser for the [print], with interest ..., upon the return of the multiple in the condition in which received by the purchaser' -- in other words, you can return the print and get your money back (with interest). If you can show the violation was willful, you can get three times that amount (but presumably you still have to return the print). I would think that Vuitton ... has a pretty strong defense to a willfulness charge since they are not really in the art-selling business and therefore wouldn't have reason to know about something the LA Times calls 'an obscure chapter of the California Civil Code called the Fine Prints Act.' .... Vuitton has already offered the plaintiff a refund plus interest (i.e., what he would be entitled to for a non-willful violation), but he turned it down."

In 2009, a state court judge dismissed the case filed there, calling it a "prime example" of "opportunistic litigation."

Arthur's separate federal lawsuit somehow survived some early motion practice, but, eventually, last spring, most of that lawsuit was thrown out as well:

"We're left, then, with a 'gotcha' claim: that LV violated the technical requirements of the California Fine Prints Act. There really isn't any question that they did so. So Arthur is entitled to a refund; that's the remedy for a violation of the statute -- and Arthur could have had one at any point during this process. The only remaining issue would seem to be whether or not it's fair to charge LV -- not generally in the art gallery business -- with willfully violating what the LA Times called 'an obscure chapter of the California Civil Code,' such that Arthur (and, perhaps, anyone else who wants to trade in their print) is entitled to treble damages. So, at best, Arthur would be entitled to $18,000 per print instead of $6,000. It all seems so pointless to me."

And finally, the recent settlement, with Arthur finally accepting the refund that was offered to him all along.

Wednesday, March 02, 2011

Linkage (art crimes edition)

Creeping back

In The Art Newspaper, Georgina Adam and Charlotte Burns report that auction house guarantees, "which disappeared during the downturn," are making a comeback, and that, "among art dealers, there are few more divisive subjects."

I reviewed the relevant legal rules a while back here.

Tuesday, March 01, 2011


Artelligence Conference

For those interested in monitoring the art market, The Art Market Monitor has put together a one-day conference on "understanding art as an asset," on April 13, that you won't want to miss. Details here.