On chandeliers and price lists

The New York Times had a front page story a couple days ago that, as The Art Market Monitor put it, was "a jumble of concerns about the art market and how it isn't regulated."  There seemed to be two main concerns:  so-called "chandelier bidding" (the fact that "[a]t major auctions the first bids announced for a piece are typically fictional — numbers pulled from the air by the auctioneer to jump-start bidding") and that galleries don't post price lists.

As for the first issue, Felix Salmon explained back in 2007 that chandelier bidding is "not a bad thing at all: in fact, it’s a necessary thing if the auction, as designed, is to work."  Its function is "to get the bidding up to the reserve price. But remember, that’s exactly what both the buyer and the seller want: they both want a deal acceptable to them. If there were no phantom bids, then the item for sale would simply not get sold."  "There is no harm done":  "if the deal does get done then everybody’s happy, and if it doesn’t then that’s the same outcome as if no phantom bid had been made."

Dealer Ed Winkleman takes on the other issue here:

"I don't see why this is really a newsworthy 'problem.'  In the 10+ years I've been in the art business, I have never once heard anyone complain unprompted about the lack of prices being posted other than journalists. ... I'm personally not sure why this issue keeps coming up in the press.  Perhaps ... and I'm just wondering out loud here ... it's because the lack of posted prices confirms some journalists' resentment that if you have to ask you can't afford it. ...[I]f this practice prompted complaints to the government on a regular basis, perhaps I could see the Times' 'expose' serving some public good.  As it is, though, it really seems much ado about nothing."

"What is doubly ironic in this situation is that the champions of redistribution seek to neuter the single most effective device for redistribution that is available to modern societies—the charitable deduction."

Richard Epstein on "The End of Charity?":

"It is tempting to think that the limitations on deductions will hurt the rich by cutting back on their deductions. But the burden will fall heavily on the recipients of charitable support, for as the price of making a charitable gift rises ..., the level of charitable giving will decline."

Kravis v. Bryant

Bloomberg:  "Henry Kravis ... sued collector Donald L. Bryant Jr. claiming he reneged on an agreement to donate paintings by Jasper Johns to the Museum of Modern Art in New York."

"Perhaps the Louvre should sell some of its lower-tier works to private collectors."

Tyler Cowen on the deadweight loss from museum art collections.

"This suit is the fourth filed in Manhattan federal court against Knoedler & Co. since it closed its doors in November 2011"

Here we go again.

Latest on the Gundlach Theft

From ARCA's Catherine Schofield Sezgin.  Background here.

The tragedy of the Barnes continues

The Philadelphia Inquirer:  "Attendance at the Barnes Foundation, which opened with much fanfare on the Benjamin Franklin Parkway in May, has exceeded all projections, topping 200,000 in only seven months."

All those philistines eating their Big Macs.

Tell me again about the public trust (dumping 16 Old Masters at Sotheby's edition)

Laura Gilbert has the details.

As we all know, 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.  Not these, I guess.

Is it all just a matter of semantics?

The Nation's Jon Weiner has a post criticizing Columbia University for having sold a Rembrandt in 1974 for $1 million that's now "back on the market this year, with a price tag of $47 million."  He says the rise in price makes them "look foolish."

Judith Dobrzynski responds here, noting, among other things, that Weiner "forgets ... that Columbia doesn’t have an art museum — unlike Brandeis and his other generalized colleges."

I think that's the standard way of thinking about these things -- that it's one thing for a university to sell a work out of what it calls a "museum," and another thing for it to sell from the university's (non-museum) collection.

Is it any wonder, then, that Brandeis thought about re-branding its museum as something else?

Three people have been arrested in that big Dutch art heist

Story here.  Background here.

"News flash for the media: You can't sell photos grabbed from Twitter."

That's the headline from Ars Technica, regarding photojournalist Daniel Morel's victory in his copyright lawsuit against news organizations that used his photos of the 2010 Haiti earthquake after they were posted on Twitter.  The decision is here.

Eric Goldman has everything you need to know about the decision.  His bottom line:

"AFP should have looped in the co-defendants and written a check from day one. After furiously litigating the case for almost two years, it's definitely going to be writing a check to Morel. ... [T]here are a ton of interesting issues addressed in the order, but the simple takeaway is something we already knew: stuff that's posted online is not necessarily fair game for recycling, especially not photos ...."

More on Harney v. Sony (UPDATED)

From Pitt's Mike Madison:

"The analysis is pretty straightforward:  (i) Photographs can be copyrighted.  (ii) This photograph is original enough to be judged copyrightable.  (iii) Most if not all copyrightable works can and should be separated analytically into original and therefore protectable elements, on the one hand and un-original elements (things that are copied from others, or things that are simple or trite, or things that are “facts” or “ideas” in copyright-speak), on the other.  (iv)  An accused infringer is liable only for copying or adapting or publicly performing or displaying original material without permission or excuse.  (v) Sony and the other defendants clearly adapted the plaintiff’s photograph without permission, but they adapted un-original parts on the one hand and copied too little of the original parts on the other."

In the comments James Grimmelmann predicts the case "may well enter the copyright teaching canon: it does a good job walking through the core issues of originality, filtration of uncopyrightable elements, and similarity of expression."

Earlier post here.

UPDATE:  My friend, copyright guru Bob Clarida emails:  "It's a fascinating case on human-interest terms, and it makes the copyright issues really clear: you can copy something very closely, but you don't infringe unless you copy protectable elements. Everybody gets that, rationally, but to see these pictures really is worth many thousand words."

Gonzalez-Torres ... Büchel ... Weiwei ... and Zaretsky?

I'm thrilled to be part of this exhibition at ICI opening next month.

"Last week the Court of Appeals agreed to review the Jenack decision."

Sheppard Mullin has an update on the Jenack auction house case.  They give a maximalist reading of the Appellate Division decision ("The Jenack decision, if left uncontested, could have far-reaching implications for the New York auction business").  Not everyone agrees.

Hey, donor intent trumps all, right?

I love this New York Times story by Patricia Cohen involving the Brooklyn Museum.

Seems a large group of works were given to the museum in 1932 by the estate of Col. Michael Friedsam.  It turns out, though, that about a quarter of the 926 works  are "fakes, misattributions or of poor quality."  The museum would like to deaccession those items and avoid the costs of storing them.

So what's the problem?

Well, according to Cohen, "the will specified that the art should go to the colonel’s brother-in-law and two friends if the collection was not kept together."  So if the museum gets rid of the 229 unwanted items, it runs the risk of losing the whole collection.

The Donor Intent Police should of course be thrilled with that outcome.  If the will says the collection is forfeited if it's broken up, then that's the way it has to be.  After all, if people can't be certain that the fakes in their collection will remain in storage at major museums, why will they ever make another donation?

It's of course a ridiculous situation, but the Donor Intent Police have no standing to all of a sudden start interpreting the conditions of people's gifts in the light of changed circumstances.  That's the point of their strident opposition to the Fisk transaction:  who cares if Fisk has to shut its doors:?  The donor said no sales and that means no sales, no matter the consequences.  Same with the Barnes.  Who cares if the institution was running out of money?  Who cares about increased public access to the collection?  All that matters is the intent of the donor (interpreted in the most literal way of course ... the Donor Intent Police are all strict constructionists).

So now that this shameless attempt to violate a poor donor's intent has been made public, I expect we'll get the usual howls of outrage from the Donor Intent Police.

Won't we?

"Infringement depends not on whether Sony copied, but on whether Sony copied protected elements of the original."

Rebecca Tushnet has a detailed summary of an interesting copyright case out of the First Circuit.

"Charitable groups say they fully expect their deduction to be under threat in the weeks and months to come"

The Hill:  Charitable groups fear tax victory in ‘fiscal cliff’ deal will prove hollow.

"More people will see the artwork in its new location"

A new home for the Maine labor mural.

Other than that, the story was accurate

There’s a really silly article regarding Richard Serra in the new Art Newspaper. Apparently it’s breaking news that one of his drawings needed some conservation in 2011. Really, that’s all there is to the story.  (Full disclosure: Serra is a longtime client of our firm.)

The headline and lede say Serra “threatened” to “withdraw” one of his drawings from the Broad Collection.  That’s not true at all; he simply objected to its being exhibited given its sub-optimal condition, which he had every right to do.

The story goes on to suggest that “historical accuracy” may have been compromised because … I’m not sure why, really.  The drawing was made in 1989.  It was damaged, and in 2011 he restored it. He left the date as 1989, and the suggestion of the story is that there was something wrong with that. But we don’t change the date of a work every time it’s restored.  There’s no “historical inaccuracy” involved.  It’s really a ridiculous story.

"For a high-income donor who makes a large gift to charity, the Pease limitation may significantly reduce the amount of itemized deductions that a donor might otherwise expect to report."

Good summary of the new tax act's impact on planning for charitable donations.

"The second theft from the museum in two months"

Patti Cohen in the NYT:  Rare Box Stolen From Oakland Museum.

"The Associated Press said that he identified himself with the Occupy movement, and that he said he had defaced the painting as an act of social and political defiance."

NYT:  Accused Picasso Vandal Surrenders at U.S.-Mexico Border.

"Which leads us to ask, 'Hello?? Background check?!'"

ARTINFO:  French Neo-Nazi Museum Guard Adds Art Theft to a Long Criminal Resume.

Museum theft in Norway

ARCAblog:  "The museum has posted detailed versions of the photos on their Facebook page and would like help spreading the images world wide. Please like and repost. With the help of social networking perhaps these objects will be reported as being seen."

"These things sometimes take two years. It’s rare that I’m able to have a recovery in a three-week period, let alone over a holiday."

Another recovery negotiated by Chris Marinello and the Art Loss Register.

"The case has left no guidelines as to whether the IRS would in another case be entitled to set a value on a legally unsaleable artwork ..."

". . . but in this instance common sense seems to have prevailed."

"So how does it feel to have one's core beliefs turned upside down?"

Legendary architecture critic Ada Louise Huxtable died this week at 91.  Michael Kimmelman has a nice appreciation here.

Huxtable was among the philistines who admired the new Barnes:

"The 'new' Barnes ... shouldn't work, but it does. It should be inauthentic, but it's not. It has changed, but it is unchanged. The architects have succeeded in retaining its identity and integrity without resorting to a slavishly literal reproduction."

The LA Times reports that she donated her entire estate to the Getty.

"6 Ways the Fiscal Cliff Deal Will Impact the Art World"

Rachel Corbett rounds them up.

"New York Strengthens Law Governing Consignments From Artists to Galleries"

Still catching up on pre-holiday reading, a good summary of the amendments to the NY consignment statute from Amelia Brankov in the NYLJ.

"With the advances in 3D scanning and other digital technologies, I suspect it is easier than ever to duplicate work and create copies."

"An epidemic of sculpture knock-offs is plaguing the art world."

"Fiscal Cliff Deal Could Hurt Charitable Giving"

Reports the Chronicle of Philanthropy.  According to the story, the Charitable Giving Coalition wrote a letter to Sen. Reid this summer "stating its opposition to the [charitable] deduction limits."

Nonprofit Law Prof Vaughn James is unsympathetic to the Coalition's argument:  "I cannot understand why the organization's members believe that the only reason people give to nonprofits is to get a tax deduction!"

Funny how the nonprofit community can be so confused about why people give to their organizations!

In fact, some people believe that if you eliminated charitable deductions, every hospital and university and not-for-profit agency across the country would suddenly find themselves on the verge of collapse.

LaChapelle Lawsuit

The NY Post has the details.

"What really has riveted the attention of the art world in the past season has not been the art but the law"

Daniel Grant's year-in-review at the Huffington Post.  Among others, he mentions the Richard Prince appeal ("The decision of the appellate court is likely to reverberate for years to come"), the Eggleston case ("it may establish a legal definition of 'limited edition' that instructs artists, galleries and publishers on what is and isn't permissible"), the Knoedler cases ("the lawsuits against Knoedler ask, What comprises 'due diligence': What do we expect of art dealers when they sell us expensive artworks by important artists?"), and the Resale Royalty decision.

If Dr. Barnes wanted you to glimpse it, either too high or too low, always too far away, from the stairs ...

... then that's the way you'll glimpse it, dammit.

Rejoicing in the Wall Street Journal, Karen Wilkin doesn't seem to grasp the obvious point that the intentions of a long-dead donor (however hazily expressed) are far more important than "being able to study this glorious, prescient vision of a pastoral idyll at eye level, close up."

Fiscal Cliff Deal: A Primer for Nonprofits

From the Nonprofit Quarterly.

"As it happens, the amount the Met paid for the Duccio would, according to the Fistula Foundation, pay for the surgery needed by 100,000 young women whose lives will otherwise be ruined."

Utilitarian Peter Singer on where to direct your charitable contributions.