More More Moore

Daniel Grant had an update in the New York Times today on the University of Alabama-Daniel Moore lawsuit.  There's an appellate court hearing on Thursday.  This is what the parties are appealing:

"The District Court Judge Robert Propst wrote in his 2009 ruling that there was no reason for buyers of Moore’s prints to assume that the products were licensed and endorsed by the university. Rather, he wrote, 'it is likely that people who buy the Moore paintings do so, at least partially, because of their loyalty to the University of Alabama and its football team.'  The judge, however, did prohibit Moore from selling his images on products of a more commercial nature, like coffee mugs and calendars, without obtaining a license from the university, and his ruling was vague on the number of prints in an edition that the artist could create."

Oh Sister

I don't remember seeing this in the earlier reports on this story, but, according to this article in the Albany Times-Union, not only did that upstate order of nuns lose their fraud claim against the two dealers, there was also a defamation award in the dealers' favor, to the tune of $250,000.

More on Appropriation and Fair Use

Had a chance to read the Cariou appellate brief.  They smartly keep the argument as narrow as possible:  they don't say all appropriation is infringement, just that this particular example -- where "a transformative purpose is negated by the sworn testimony" of the artist (p. 5) -- is.  They say Prince "admi[tted] that he had no message he wanted to convey about Cariou's photographs and only appropriated them because he liked them" (pp. 1-2).

Relatedly, Cat Weaver says "the dueling Cariou v Prince briefs have added new certainty to my theory that transformative use is a singularly unhelpful notion."

And Joy Garnett has organized a panel, "The Case For Appropriation," Feb. 16 at SVA.

Art Dealer Faces Fraud Charges

The NYT's Patricia Cohen has the details.

Overtime

The University of Alabama's lawsuit against artist Daniel Moore is still going!  Oral argument on the appeal scheduled for Feb. 2.  Jon Solomon of The Birmingham News says it's "embarrassing" and a "PR nightmare" for the university.

Prince-Cariou News

Patrick Cariou's lawyers filed their appellate brief yesterday.  Haven't had a chance to read it myself, but in the meantime, here are reports from ARTINFO's Julia Halperin and Artnet's Rachel Corbett and commentary from Peter Friedman.

"The new lawsuit seeks some $14 million from Mr. Gagosian for various alleged misdeeds in the sale of Roy Lichtenstein’s Girl in Mirror."

Dan Duray has the details on a new lawsuit involving Gagosian Gallery and the Cowles family.  He points out that, were it not for this suit, "news might not have broken last week that the lawsuit between [Gagosian] and collector Robert Wylde had been settled for $4.4 million."  For background on that earlier suit, see here.

"While it may sound like a good idea in principle, the law is misguided for several reasons."

In the NYLJ, Judith Prowda, the Chair of the NYSBA Entertainment, Arts and Sports Law Section, argues against the proposed resale royalty bill.  She says "empirical studies have shown that the resale royalty right is ineffective and the benefits highly skewed" and that "artists may in fact be worse off in the long term with the resale royalty, as dealers may have less money to promote their careers in the primary (first sale) market and instead shift their business away from royalty liable art in the secondary (resale) market."  She concludes:  "While it is hard to argue with the concept of fairness for artists, in reality, the law does more harm than good to the majority of artists."

"Experts have been persuaded to opine that the affair is 'Australia's largest-ever art scandal' and 'threatens to destroy trust in the local industry for years.'"

An Australian art dealer has been arrested and charged with "87 offences relating to his investment art fraud scheme."

"It's not as if we're selling our opinions in competition with a photographer."

"Using the photo in a judicial opinion couldn't conceivably be hurting the copyright holder."

Judge Posner helps himself to some fair use.

"Word of the disbanding comes amid several major forgery scandals that have entangled a number of art authentication boards in messy litigation" (UPDATED)

The Basquiat Authentication Committee is disbanding.

UPDATE:  The Art Market Monitor:  "The committee itself may turn out to be less important than Enrico Navarra’s catalogue raisonné."

Update on the California Resale Royalty Class Action

The auction houses have filed a (joint) motion to dismiss.  You can read the motion here; background about the case here.

The main argument is the Commerce Clause argument:  as a "state law[] which seek[s] to regulate economic activity outside the State," the statute is "plainly unconstitutional."  "[W]here State A purports to regulate the sale of goods occurring in State B simply because that sale involves a resident of State A, the regulation is invalid."

They also make the back-up arguments that the statute violates the Takings Clause -- "it confiscates the private property of select individuals and transfers that property to other private individuals" -- and is preempted by the Copyright Act (because it conflicts with its "first sale" provision, which "entitles a lawful owner of a copyrighted work to resell that work without restriction").

Along the way, they make the point that the statute is not a tax:  "The resale royalty is neither exacted from the general public nor transferred to any government agency."

"Defying the economic gloom"

The Mei Moses art index was up 11% in 2011, "beat[ing] the total return of the S&P 500 index of US equities by about 9 percentage points."

Bananas

Courthouse News Service:  Velvet Underground Wants to Free Warhol's Banana.

"A great art project indeed!"

Sergio Muñoz Sarmiento:  Is This Copyright Infringement of an Artist's Painting?

"Hopefully, this is one step towards the day when we can live out our faith without fear of persecution."

"The Church of Kopimism, whose principal tenent is the right to file-share, has been formally recognized as a religious organization in Sweden."

"Knoedler forgery scandal grows"

The Art Newspaper's Charlotte Burns reports.

Background here.

Affirmed

The Ninth Circuit has upheld Halsey Minor's judgment against Christie's.  The decision is here.  Background here. 

Nun Too Happy

An upstate group of nuns have lost their fraud case against a dealer arising out of a Bouguereau they sold to him.  Background here.  He bought the painting from them for $450,000 and then resold it for $2.5 million. He "denied any conspiracy to defraud the nuns, countering that they are merely experiencing seller's remorse. 'Sometimes you just get lucky,' he said."

Jeopardy

The Tennessean had a story over the weekend with the rather dramatic headline: "Fisk art deal in jeopardy."  What that turns out to mean is just that the Tennessee Attorney General may decide to appeal the latest ruling approving the deal.  It's not in any more jeopardy than it was the day that ruling came down or any day since.  The deadline to appeal is Jan. 28.

We also hear from "the larger art museum community," represented in this instance by the director of the Georgia Museum of Art at the University of Georgia, who informs us that "the case could change the boundaries for selling off artworks."  The AAMD and AAM say sales proceeds should be used "solely to acquire more art or maintain existing collections," but, if this decision is not put in jeopardy and the Fisk-Crystal Bridges collection-sharing arrangement is allowed to happen, those boundaries could change.  But why would that be so?  Isn't it more likely that the boundaries (i.e., the AAMD and AAM policies) will stay right where they are, but this deal will be an "exception" to (or, if you prefer, "violation" of) those boundaries?

Athens Art Theft

Paintings by Picasso and Mondrian were stolen from the National Art Gallery in Athens today.  Art Theft Central's Mark Durney says Greece's Culture and Tourism Ministry "has seen its budget cut by 35% since 2009" and wonders if "perhaps, the new austerity measures and workers’ reactions to the budget cuts contributed to the ineffectiveness of the museum’s security system and practices."

"Mr. Lucky is not, in fact, so lucky."

The Gallerist's Michael H. Miller reports that a New Orleans man named Robert E. Lucky Jr. has been sentenced to two years in prison for selling fake Clementine Hunters.

"Virtually every traditional media company in the United States loudly and enthusiastically supports SOPA, but that doesn’t mean it’s good for the rest of us."

I haven't been linking to all the discussion of the Stop Online Piracy Act (SOPA), but David Carr had a good overview in the Times last week, and Martha Lufkin has a piece on it in The Art Newspaper.  From the latter, it seems that ARS supports the bill, while VAGA is more non-commital.

Win Win

Carol Vogel reminds us today that "for more than a decade museums have been joining forces to buy" art. It’s "an arrangement that works to everyone’s advantage," a way "to defray costs while allowing a wider public to see significant work."

Exactly.  That's why everyone's so excited about the Fisk-Crystal Bridges sharing arrangement.  Right?

"I really don't want to see anyone get into trouble, but I'd like to get my painting back."

NY1:  LES Gallery Offers Reward For Return of Stolen Artwork.

"There is no road map for artists whose subject matter includes existing images."

Daniel Grant:  Will the Legal Status of Appropriation Art Be Decided This Year?

Test Pilot

The new year begins with this back-and-forth between Judith Dobrzynski and Lee Rosenbaum over Boston's newly-revised "payment in lieu of taxes" (PILOT) program.  For background about the program, start with New England School of Law Professor Eric Lustig, here and here.  Inside Higher Ed has a good piece on it here, and sharp criticism from Tim Delaney, President of National Council of Nonprofits, here ("To enforce its legally unenforceable program, Boston has threatened to paint a Scarlet letter of shame on every nonprofit that does not comply with the city's demands for payments. Such coercion to obtain what the Commonwealth's law prohibits is outrageous and threatens everyone; who's next, when Boston -- or any government -- wants something the law prohibits?") and Taylor Armeding here ("These 'requests' are a bit like Don Corleone making someone an offer he can’t refuse. If a standard guilt trip doesn’t work, the university, the medical center, the museum, the charity are told in not-so-veiled terms that if they don’t pay up, good luck the next time they come before a city board seeking a permit.  It is extortion, all prettied up as fairness and good citizenship.").