"The lawsuit claims the gallery’s conduct is 'self-dealing that can only be described as Byzantine.'"

Daniel Schnapp has news of a lawsuit by Michael Ovitz against Perry Rubinstein Gallery.

"Ms. Sonnabend’s name is now dutifully listed among the founders in the museum’s lobby."

Holland Cotter explains how MoMA's new Sonnabend show is in part "a byproduct of legal hassles":

"[Rauschenberg's] 'Canyon' plays a major role here. The show revolves around it in a very basic way. Because it incorporates the remains of a bald eagle, an endangered species, the work could not be sold. When Sonnabend died and her collection was appraised for tax purposes, her heirs ... valued the unmarketable 'Canyon' at zero; the Internal Revenue Service, however, estimated that it was worth $65 million and was prepared to tax the estate accordingly.  A deal was struck. If the piece was donated to a museum, the estate tax on it would be dropped. Both the Met and MoMA badly wanted it, and Sonnabend’s heirs made conditions for a gift. The receiving institution would be required to mount an exhibition in Sonnabend’s honor and inscribe her name in the museum’s list of founding donors."

"The elephant labored and produced a mouse."

That's how one defense lawyer summed up the result in the strange, "self-defeating" breach of confidentiality suit brought by Marguerite Hoffman.  The jury awarded her $500,000.  "Hoffman’s lead attorney had suggested a figure as high as $22.4 million in closing arguments," according to The Dallas Morning News.  I never really understood the damages theory in the case (among other things).  The one thing that seems clear is that many more people know about Hoffman's sale than would have had the case not been brought.

"The ownership of the artwork has been fiercely contested during a three-week trial in which Fawcett's final wishes and her relationship with O'Neal were dissected."

Ryan O'Neal has won possession of a Warhol portrait of Farrah Fawcett.

Oh the horror

I picked a good week to be busy with the day job because I was able to avoid the spectacle of the usual suspects reacting to the issuance of Christie's final report on the value of certain works in the DIA's collection.  Some merely threw up, but others fainted and had to be revived with smelling salts.  Still others remain in their beds, unable to go on in a world where values are assigned to artworks.  It's just too much to bear.  (This aversion to ever valuing art explains the well-known practice of museums not to insure their collections.)

In any case, if you can handle it, here is a report from Mark Stryker in the Detroit Free Press.  Here is Randy Kennedy in the Times.  The report itself is here.  Be strong.

The Jenack Decision

Was running around today, but the big news was that the Court of Appeals issued its decision in the Jenack case.  The decision is here.  Tons of coverage, including Graham Bowley in the NYT, Laura Gilbert in The Art Newspaper, and Nicholas O'Donnell at The Art Law Report.  The bottom line, as Gilbert puts it, is that the court "reversed an earlier decision that had alarmed auctioneers and those in the trade because, if upheld, it could have required them to disclose sellers’ identities" if they wanted to create a binding contract.  A few quick thoughts:

1.   Footnote 10 seems to vindicate the Olsoff Interpretation -- that the lower court decision was "narrow and technical" and "deal[t] only with the evidence that is required if an auction purchaser defaults."  The footnote says:  "Of course, if Jenack had other written documentation of this transaction that provided the seller's name, that certainly would satisfy the [statute of frauds], but there is no such documentation in the record" (my emphasis).  Of course!

2.   Though I think the decision is ultimately the right one, there's still something odd about the statutory interpretation the court employs to get there.  The relevant statutory provision says that, in the case of a sale at public auction, the statute of frauds can be satisfied if, at the time of sale, the auctioneer "enters in a sale book," among other information, (a) "the name of the purchaser" and (b) "the name of the person on whose account the sale was made."  But, says the court, since "it is well settled that an auctioneer serves as a consignor's agent," the relevant sale book (or "clerking sheet") provided "the name of the person on whose account the sale was made" by listing the name of the auctioneer (Jenack).  But if that's the case, it seems the court has read prong (b) right out of the statute:  the provision at issue only applies to sales at public auction -- but since the auctioneer is (always) the consignor's agent, prong (b) will always, by definition, be satisfied.  The court has redrafted the statute to say only the buyer's name must be entered in the sale book.

3.   The main sense you get, reading the decision, was that the court felt like the buyer here was getting away with something -- that he was "using the Statute of Frauds as a means of evading a just obligation" -- and they just weren't going to let him do that.  Sometimes that's what it comes down to.

Resale Royalty Report

The Copyright Office has issued its long-awaited report on resale royalties.  You can read it here.  The NYT's Patricia Cohen has a brief story here.  Art in America's Tracy Zwick is here (I'm quoted in that one).  The Art Newspaper's Julia Halperin is here.  Judith Dobrzynski comments here ("Still, it remains very unclear whether Nadler’s bill can get through Congress — or even get on the schedule").

Ann Freedman Defamation Settlement

Laura Gilbert has the story in The Art Newspaper:  "The suit was based on a New York magazine article published in August in which Grassi criticised Freedman’s due diligence in researching a group of Abstract Expressionist paintings that turned out to be fakes. As part of the settlement, Grassi retracted his statements."  Background here.

Holland Cotter has the answer for Detroit

Here it is:  "If it proves that the worst seems about to happen, the art world should get itself out to Detroit en masse and put its communal spirit to good use: Form a human circle around the building and, in one voice, just say no."

That should work.

Earlier in the same article, he had noted:  "Like all insular communities, the art world is a consensus culture. Week after week, the same people say the same things about the same shows."

Yes, they do.

"The deal would raise roughly $500 million from a consortium of national and local charitable foundations and funnel the money into retiree pensions on behalf of the value of the art at the DIA." (UPDATED)

A grand bargain in Detroit?

UPDATE:  The Art Market Monitor says the discussions are "a reminder to the shrieking and fretting arts writers who framed the issue as a moral cause when it was a political fight between various Detroit-area constituencies."

And applause from the DIA.

Morel v. AFP: How The Case Was Won (UPDATED)

Find out next Monday.

UPDATE:  You'll have to wait a little longer to find out.  I'm told the panel has been postponed.  Date TBD.

"It’s pretty hard to see how a market which has doubled in a decade can be considered to be 'tepid' and 'in a doldrums'" (UPDATED)

Felix Salmon goes to town on the James Stewart state-of-the-art-market piece I mentioned over the weekend.  The Art Market Monitor identifies the piece's "most serious" failure:

"The crux of Stewart’s complaint is that not all works are selling at tremendous prices. But the necessary ingredient of a healthy market is discrimination. If all works sell well, there’s no market just a mad rush to acquire an undifferentiated mass of work. And that would be the worst sign of all for art."

UPDATE:  Further thoughts from Kathryn Tully at Forbes.com.

"The dark you're in doesn't compare to the dark the citizens of Detroit suffer day in, day out and the crime that results from that."

Nearly half of Detroit's 88,000 streetlights are broken.

"Philadelphia Wants To Use Eminent Domain To Turn An Artist's Studio Into A Parking Lot And Supermarket"

Story here.  George Mason's Ilya Somin comments here.

Is the art market really going through the roof?

James B. Stewart says no.  Jim Cramer says it's a "brilliant piece."  Marion Maneker says not so much:  "Stewart is sadly pedestrian in his analysis. Makes you wonder how much else he's gotten disastrously wrong."

"If the defendants are found liable, some legal experts say, it could have broad implications for the art world by threatening to turn such confidentiality agreements into restrictions or even prohibitions of resales."

The Wall Street Journal has an update on Marguerite Hoffman's strange, "self-defeating" lawsuit for breach of a confidentiality provision in an agreement for a Rothko she sold.  The trial starts in Dallas next week.

The agreement provided that the parties would makes "maximum effort to keep all aspects of this transaction confidential," and the claim is that the buyer breached that promise, not by talking about the transaction to anyone, but instead by selling the work at auction, where, although "the Sotheby's catalog and website didn't name Mrs. Hoffman as a prior owner," the "publicity surrounding the auction ... outed her as a previous seller."

Speaking of removing art from the market

We know that museums themselves would never do anything as "grim and venal" as "putting a pricetag on," or "monetizing," art.

That would never happen.

Wait ... hold on a second.  This just in:  the Pennsylvania Academy of Fine Arts just sold a Hopper for $40 million.

Tough break for PAFA.  I guess this will lead to its dissolution, a kind of nonprofit controlled liquidation, if you will.  Donors will stop giving.  And let's hope the surrounding counties hadn't  agreed to a special tax for its benefit because, if so, man have they blown that.

Anyway, back to Detroit.  What I don't get is why the creditors can't understand that MUSEUMS DO NOT SELL ART.  It just isn't done.  It's grim and venal and simply doesn't happen.  What, I wonder, could ever give anyone the opposite idea?

Philip Kennicott has an idea for "removing as much art as possible from the market"

"Would an art easement work, in which museums sold the right to sell their art, but held on to the art itself?"

Who exactly would pay them for "the right to sell their art" (without getting the art itself)?

The Day's DIA

Today's big Detroit news was that Christie's finished the appraisal that people have been waiting for.

Two points for now.

A lot of the press coverage is giving the impression that the entire collection was valued at under $1 billion.  This Washington Post article, for instance, under the headline "Detroit Institute of Arts works worth less than thought, surprising many," says:

"Some thought the Detroit Institute of Arts collection — which includes Van Gogh, Tintoretto and Rembrandt works, among others — could be worth upward of $8 billion, but city manager Kevyn Orr told the Free Press that Christie’s estimate for the works started below $1 billion."

Or here's CNNMoney.  The headline:  "Detroit's art worth $452 million to $866 million."  The lead:

"Detroit's city-owned art collection is worth between $452 million and $866 million, far less than most expected, according to a preliminary estimate by Christie's auction house."

But that's not true.  As Randy Kennedy's NYT story correctly points out, "Christie’s examination was limited to works that were bought entirely or in part with city funds .... So the appraisal covers only a small part of the collection in terms of numbers — less than 5 percent of the museum’s 66,000 works."  He adds that "art experts enlisted by The Detroit Free Press this year to conduct a quick, unofficial appraisal had said that 38 of the museum’s masterpieces alone would be worth at least $2.5 billion in the current art market."  (Mark Stryker notes that only 6 of those 38 were included in Christie's appraisal.)

So this appraisal doesn't tell us what the value of "the collection" is.

The second thing I wanted to mention is that the museum seems to have settled on its talking points.  From Kennedy's article:

"The museum’s director, Graham W. J. Beal, has said that any sale of art will most likely lead to the museum’s dissolution; donors would stop giving, and the museum will lose a crucial tax stream established last year by surrounding counties to provide the museum with badly needed operating revenue."

First there's the sky-is-falling business again.  The sale of any of the art will lead to the museum's dissolution.  Any of the art.  (Because, as we all know, museums never ever under any circumstances sell art.  Any of it.)  But why would it lead to dissolution?  Presumably for the two reasons that come after the semicolon:  (1) donors would stop giving and (2) the museum will lose the tax revenue from last year's millage.

Let's start with the second one.  As I've said before, they don't have to lose the millage.  If it happens, that would just be a punishment imposed by the surrounding counties.  (Also known as Kicking Someone When They're Down.)  More importantly, the millage is supposed to bring in $23 million a year for 10 years.  The city could in theory decide to sell $460 million worth of art (settle down, not advocating it, just making a point) and "replace" the $230 million in millage moneys and still have another $230 million left over.  There would be no "dissolution" of the museum.  So: stop.

On the other point, I know I'm missing the deaccession outrage gene, but it just completely escapes me.  If the city comes through this desperate, horrific process and, at the end of the day, the museum remains standing but in a somewhat diminished capacity -- say it's 90 or 95% of what it was pre-bankruptcy -- are we supposed to think that the response of potential donors is going to be hell no, I'm not donating anything to that museum.  If the city goes through a Chapter 9 bankruptcy again, they may sell the work I donated!  In what world does that make any sense?  Particularly since, even in the midst of this desperate, horrific, unprecedented process, the city has bent over backwards (to this point anyway) to look only at works that were not donated.  (Again, "Christie’s examination was limited to works that were bought entirely or in part with city funds.")  If the city survives this and comes back to life, wouldn't donors be flocking to help the museum?  I find the whole thing just baffling.

As I've said before, send better talking points.

Four Simple Rules For Writing About Art Auctions

From Felix Salmon.

"Many legal specialists and government officials say they expect Detroit will be found eligible for bankruptcy protection." (UPDATED 5X)

Big day in the Detroit bankruptcy proceeding.

UPDATE:  It's on.  More later.

UPDATE 2:  The Detroit Free Press's Mark Stryker on what it could mean for the DIA:

"In announcing the city of Detroit is eligible for bankruptcy, Judge Steven Rhodes created a benchmark for selling city assets, including art, but did not rule on whether he would allow the sale of treasures at the Detroit Institute of Arts.  Rhodes said that when deciding whether to sell any asset, the city 'must take extreme care that the asset is truly unnecessary in carrying out its mission.' Rhodes also said that a one-time infusion of cash from the sale of city assets would not solve Detroit’s insolvency. Rhodes, who mentioned the DIA by name, did not expressly remove the art from possible sale."

More later!

UPDATE 3:  Here's the New York Times story.  The takeaway:  "The judge made it clear that public employee pensions were not protected in a federal Chapter 9 bankruptcy, even though the Michigan Constitution expressly protects them. 'Pension benefits are a contractual right and are not entitled to any heightened protection in a municipal bankruptcy,' he said."

UPDATE 4:  Here is a sword-rattling tatement from the DIA: "The DIA remains hopeful that the Emergency Manager will recognize the City's fiduciary duty to protect the museum art collection for future generations and that he will abide by the Michigan Attorney General's opinion that the City holds the art collection in trust and cannot use it to satisfy City obligations. If the art is placed in jeopardy, the DIA remains committed to take action to preserve this cultural birthright for future."

UPDATE 5:  Finally (for tonight), here is Randy Kennedy in the Times on what the ruling means for the art specifically.  DIA director Graham Beal does his sky-is-falling routine, claiming that the sale of any art (even 8% of the collection) would lead to a "nonprofit controlled liquidation," whatever that is.

“It might take us a while but we will get this [passed]."

A resale royalty bill will be re-introduced in Congress in the new year.

A Deaccessioning Solution

In a review of a William Kentridge piece now up at the Met, Holland Cotter says:

"The piece ... has recently been acquired jointly by the Metropolitan and the San Francisco Museum of Modern Art. ... [S]urely the nature of the purchase establishes a salutary practical model, in a time when cash is tight and art prices sky-high, for institutional resource-sharing in the future."

As I've said before, if it's a salutary thing for Museum A and Museum B to buy work jointly, then it's got to be a salutary thing for Museum A, in a time when cash is tight, to sell a 50% interest in a work (or works) to Museum B.  The result is exactly the same.  It's a kind of modified Ellis Rule.

"The lawsuits keep coming."

Two more Knoedler cases.

Is it wrong for auction reserves to be secret?

Daniel Grant considers the question here.  Felix Salmon made the case for secrecy here.

"The rate of recovery and successful prosecution in cases of art theft is startlingly low ..."

"... with one expert putting it at only 1.5% globally."

"The court gave short shrift to any nonmonetary interests, which might seem like an odd result in a moral rights case"

Rebecca Tushnet on the 5Pointz decision:  "This VARA dispute makes some interesting moves on irreparable harm."

Hey, they're just looking out for the public trust

NYT:  "Sicily’s regional government has set a travel ban on 23 of the island’s most important artworks, a decree that says such works, many of which were recently lent to museums in the United States and elsewhere, should not circulate abroad except under extraordinary circumstances."

"In the filing, the creditors argued that Orr is not moving aggressively enough to monetize the art." (UPDATED)

The battle for Detroit's art heats up.

UPDATE:   More from Nicholas O'Donnell:  "The upshot ... is that the court cannot compel the sale of DIA’s collection.  This cannot be repeated enough, since coverage continues to miss that point.  The only real question is if the city resolves to sell the collection, can the museum stop it? The view here is that it cannot, but expect much more ink to be spilled in court on that issue."

"Judge denies government’s request for stay in Knoedler suits"

"Judge Paul Gardephe rejected the US Attorney’s argument that their continuation would prejudice possible criminal proceedings, saying 'it is impossible to predict when, if ever, additional criminal charges will be filed'."

"Getty’s and AFP’s decision to not settle with Morel is inexplicable."

More on the Morel v. AFP verdict from the Technology & Marketing Law Blog.

"I don’t think there’s a Pollock expert in the world that would look at that painting and agree it was a Pollock." (UPDATED)

Patricia Cohen in the NYT on an authentication dispute involving Pollock mistress Ruth Kligman.  There was a long Vanity Fair piece on this about a year ago.

UPDATE:  ARCAblog rounds up some reactions.

"A story in which everyone comes out badly."

"Come January 25th of next year, Sotheby's will hold an auction of more than 200 works of American folk art from the collection of former gem dealer Ralph Esmerian."

Bubble puzzles

Matthew Yglesias in Slate (writing not about the art market, but the same question arises there, I think):  "A bubble is most likely to be occurring when conventional wisdom says there is no such bubble."

"If it does come to pass that the Wolkoffs find themselves on the hook for whatever absurd figure a lawyer convinces a compliant New York jury to cough up, it will be a legal outrage."

The New York Post editorial board is not impressed with Judge Block's decision in the 5Pointz case:  "It says much about the dismal state of property rights in this city that the judge who authorized the Wolkoffs’ plans to demolish their building practically invited those who had painted on it to file in civil court for damages for the loss of their artistic works. He did so by suggesting that the US Visual Artists Rights Acts may well protect the 'ephemeral nature' of graffiti on a building. Translation: The owners may have to pay damages for painting their own building!"

BREAKING: $1.2M Jury Verdict in Morel v. AFP

Reports Mark Jaffe.  Eric Goldman was right that AFP was going to be writing a check to Morel some day.

"Many commentators ... have implied that the case is a slam dunk for Jenack, which is just not so."

Nicholas O'Donnell on the oral argument at the Court of Appeals in the Jenack case:  "The view here is that the buyer (Rabizadeh) got the better of the argument, but one has to wonder how the equities will weigh on the court in a case where the winning bidder simply repudiated a voluntary transaction."

The Knoedler List

The Art Newspaper has the list of Knoedler buyers, what they paid, and what the gallery paid Rosales.  Greg Allen tweets:  "Knoedler paid Rosales $1m for that 1949 Newman, then shopped it to a museum for $18m. #theyknew."

5Pointz Opinion (UPDATED 2X)

The Judge issued his decision -- a really interesting one -- in the 5Pointz VARA case today.  I'll post a link when I find one. [UPDATE:  Here we go.]

He begins by noting that "[t]his marks the first occasion that a court has had to determine whether the work of [a graffiti] artist -- given its ephemeral nature -- is worthy of any protection under the law" (p. 2).

He ends up answering yes ... in theory ... VARA "makes no distinction between temporary and permanent works of visual art" (p. 25), it "protects even temporary works from destruction" (p. 26).  He left open the question whether the works qualified as works of "recognized stature" for purposes of VARA protection (a question "best left for a fuller exploration of the merits after the case has been properly prepared for trial, rather than at the preliminary injunction stage," p. 24).

But he still denied the injunction, because the artists couldn't show irreparable harm:  "plaintiffs would be hard-pressed to contend that no amount of money would compensate them for their paintings":

"[P]aintings generally are meant to be sold. Their value is invariably reflected in the money they command in the marketplace. Here, the works were painted for free, but surely the plaintiffs would gladly have accepted money from the defendants to acquire their works" (p. 25).

He adds that "the ineluctable factor which precludes ... injunctive relief" was "the transient nature of the plaintiffs' works."  They "always knew that the buildings were coming down."  "Particularly disturbing is that many of the paintings were created as recently as this past September, just weeks after the City Planning Commission gave final approval to the defendants' building plans.  In a very real sense, plaintiffs' have created their own hardships" (p. 26).

So the transient nature of the works precludes injunctive relief ... but it doesn't preclude "potentially significant monetary damages if it is ultimately determined after trial that the plaintiffs' works were of 'recognized stature'" (p. 27).  And here's where it gets really interesting.

He closes by noting that the City Planning Commission required 3,300 square feet of the exterior of the new buildings to be made available for art.  But the defendants, he says, "can do more":

"They can make much more space available, and give written permission to Cohen to continue to be the curator so that he may establish a large, permanent home for quality work by him and his acclaimed aerosol artists.  For sure, the Court would look kindly on such largesse when it might be required to consider the issue of monetary damages; and 5Pointz, as reincarnated, would live" (p. 27).

Is it me, or do you get the feeling he's trying to tell them something?

UPDATE:  Foley Hoag on the moral of the story:  "[T]his case is a cautionary tale for artists and property owners alike. ... Given a slightly different fact pattern, the artists might have successfully blocked demolition.  If an artist and a property owner contemplate a piece of artwork that will be intrinsically connected to a building, it is in everyone’s best interest to actively address that fact before the art is created.  The parties could agree to a VARA waiver, find a way for the art to be detachable, or make the art a 'work for hire,' in which case the artist would receive compensation, but VARA protections would not attach.  If the parties can’t agree on one of those options, it might be best for the artist to find a different canvas, and for the owner to find a different artist.  Otherwise, artists risk having to combat unexpected attempts to demolish their work, and property owners risk having their rights in their property limited for the duration of the artist’s life."

UPDATE 2:  Sergio Muñoz Sarmiento comments here, fixating on fixation.

"Did the Nazis steal the Mona Lisa?"

Noah Charney in The Guardian.

"I cried this morning, I swear to you."

5Pointz is wiped clean.

"Is art a criminal enterprise?"

Michael Wolff in USA TODAY.

Tell me again about the public trust (it's pronounced dee-AK-session edition)

The Toledo Art Museum has sold more than 200 works and "another 50 works are scheduled to be auctioned in January."  "It costs money and takes up space to store works that are never going to be displayed, so why not find a different home for them on the open market?"

"The case centers on a relatively simple question: does one of Warhol’s depictions of Fawcett belong to her longtime lover, Ryan O’Neal, or should it join its twin at her alma mater, the University of Texas at Austin?"

Trial's about to start in Los Angeles.  "Fawcett decreed in her will that all her artwork go to the school, yet O’Neal insists that Warhol gave him a copy of the portrait as a gift and it belongs to him."

Here's my question for those who say there is a "bubble" in the art market

What is the right price for the Bacon that sold for $142 million this week?

$127.41 million?

$93.8 million and forty three cents?

This isn't Snapchat or Twitter.  There's no P/E ratio to look at, or revenues, or any of the other metrics by which you can make claims about the "true" value of the asset in question.  There are no "fundamentals" when it comes to art.  As Peter Schjeldahl says, "any price—many millions, a buck fifty—paid for any work of art is absurd."  What makes this one any more or less absurd than any other?

"What Is the Value of Stolen Art?"

A lengthy piece in today's New York Times Magazine.  Derek Fincham is impressed.

"The question is how the elite palaces will react."

Virginia Postrel on the rise of 3-D printing.

BREAKING: Cert. denied in Prince-Cariou

Story here.

Dia Lawsuit Dropped

Story here.

Two publics are better than one

The Fisk-Crystal Bridges sharing arrangement marches on, with the works remaining at all times in the public trust ... and now benefiting the public in Arkansas as well as the public in Tennessee.  It's a win-win.  Besides sharing the financial burden, having a second venue is fair to the collection, which gets more visibility.

"When authenticators are afraid to practice their profession, it has a far reaching effect."

Nicholas O'Donnell reports on some proposed legislation in New York that would help protect "authenticators."

Resale Royalty Panel

Nov. 25, hosted by IFAR.  Register here.

"Sources tell Local 4 the dollar amount the EM will need to help clear the city's balance sheet is about $200 million out of the museum."

Suppose that's the worst case scenario -- the museum has to come up with $200 million and then they'll be left alone.  Is that the end of the world, all things considered?  Does the Detroit Institute, minus $200 million worth of work, cease to exist?  The museum has been -- conservatively -- estimated to hold $2.5 billion worth of art.  (And it could be a lot more.)  But even on that conservative estimate, it would come out of this, in a worst case scenario, with 92% of its collection intact.  (And that assumes that 8% would just be sold off completely; what if, instead, they entered into a Fisk-like joint ownership arrangement for some part of the collection?)  Of course nobody wants to lose that 8% (except, I suppose, the people in the city whose museum acquires it, assuming it's a museum that acquires it), but it's important to keep straight what's at stake here.  Assuming Local 4's sources are correct, it seems a little over-dramatic to me to talk about "closing the museum."

"I love the work and it’s going to tear my heart out to see it torn down, but as a judge I have to apply the law." (UPDATED)

"I can’t grant the injunction."

The Daily News on the 5Pointz case.

UPDATE;  Some thoughts from Sergio Muñoz Sarmiento here.

"2 Founders of Dia Sue to Stop Art Auction" (UPDATED)

Randy Kennedy has the story here.

UPDATE:  Tyler Green adds a detail.

New Art Law Book

I've been meaning to mention that my friend Judith Prowda has just published the excellent Visual Arts and the Law:  A Handbook of Professionals.

"Federal District Judge Frederic Block said he would be 'hard-pressed' to stop the building’s owners ... from tearing it down."

Here's one report on today's preliminary injunction hearing in the 5Pointz VARA case.

"Gates questions why anyone would donate money to build a new wing for a museum rather than spend it on preventing illnesses that can lead to blindness." (UPDATED)

Bill Gates takes the Peter Singer utilitarian line on philanthropy.

UPDATE:  A reader points me to this related op-ed by Robert Reich from 2007.

"If a fake is good enough to fool experts, then it’s good enough to give the rest of us pleasure, even insight."

Blake Gopnik looks on the bright side of art forgery.

"For VARA to apply, the work must be of 'recognized stature.'"

"Since over the artists have repeatedly repainted the warehouse walls, 5Pointz might have a hard time establishing that the graffiti there is of 'recognized stature'. The constant repainting might lead the court to conclude that the graffiti artists did not have any expectation for their paintings to be permanent, which would remove the case from the scope of VARA. Moreover, Thomas F. Cotter, a professor specializing in intellectual property at the University of Minnesota Law school, noted that extending VARA protections to 5Pointz would seem to leave the Wolkoffs with no practical legal means of tearing down their own building, which “wouldn’t make a great deal of sense."

The American University IP blog on the 5Pointz graffiti case.

Pop

Felix Salmon is seeing signs that the art market "bubble" is about to burst.  (Is it me, or is Felix Salmon always seeing signs that the art market bubble is about to burst?)

The Art Market Monitor responds here (and suggests no, it's not me).

I'm not sure the "bubble" metaphor makes much sense as applied to the art market in the first place.  I think this may be closer to the mark.

Knoedler Update: Enter Tony Cha Cha

Patricia Cohen has the latest details.

A point about 5Pointz

And, on the subject of graffiti art, another interesting recent art law story is the VARA lawsuit brought by a group of artists to block the destruction of 5Pointz, "the graffiti mecca in Long Island City."  They got a preliminary injunction, with a fuller hearing scheduled for next week.  Here is one news report.

One interesting aspect of the case is the temporary nature of the works at issue.  The building owner points out that the website for the program notes that pieces are generally "left on display for anywhere from one day to two years," and are "typically displayed for a mere matter of days, weeks, or months, only to be painted over and replaced with a new image."  (I know that's to some extent a disputed fact in the case, but let's assume it's so for the moment.)  How should this affect our thinking about VARA's application?  Imagine that the practice was that each work stayed up for 24 hours and no more.  Could it be a VARA violation to paint over (or tear down) that work?

A "distracting, frothy combination of art, money, celebrity and urban exploit"

I also missed covering all the Banksy-related goings on over the last couple weeks, but Roberta Smith has a good rundown.

"In the wake of the appellate decision there still remains uncertainty about the extent to which one artist’s use of another artist’s imagery in creating a follow-on work is protected from a copyright lawsuit"

"Moreover, it remains unclear—when there is a suit—what sort of evidence a court must consider in refereeing the dispute ...."

Michael Straus, Chairman of the Warhol Foundation, on where we are after Prince-Cariou.

I agree.

The Murkiest Realm

Also in the Times this week, Patricia Cohen on a lawsuit by the Calder estate against his longtime dealer, Klaus Perls, claiming that he "surreptitiously held on to hundreds of Calder’s works and swindled the artist’s estate out of tens of millions of dollars."  As Cohen tweets:  "Theft, betrayal, Swiss accounts, code names, hush money, fakes. What more could you want ...."  Christopher Knight has a favorite detail in the story: "'Madame Andre' wasn't a person, but a nickname for the Perls Swiss bank account."  The New Yorker's David Grann (whose name may be familiar to regular readers of the blog) says:  "Swiss bank accounts, allegations of betrayal & fraud, & more evidence that the art world is the murkiest realm."  Or, as Michael Wolff puts it:  "Seriously, are there any honest people in art? Or just a corrupt industry?"  For her part, Lee Rosenbaum "find[s] many of the charges by Calder grandson Rower against the late dealer Klaus Perls hard to believe."

"Forging an Art Market in China"

The New York Times had a massive feature on the Chinese art market the other day, well worth reading.

Felix Salmon adds his usual excellent commentary here.  If you don't have time to read the whole story, Jori Finkel sums it up in one sentence:  "Crazy financial speculation + strong copyist tradition in art = a Chinese art market flooded with fakes."  Lee Rosenbaum calls it "shocking" and "revelatory," but The Art Market Monitor is not shocked at all:  "Who seriously thought art in China was anything more than a speculative instrument, a wild casino?"

You MUST read this post (just a suggestion)

The Met got part of a lawsuit relating to its admissions policies thrown out -- the part alleging that it has no authority, under its lease with the city, to charge even a suggested admission fee.  Randy Kennedy has the story here.

The part of the lawsuit alleging that the museum misleads people into thinking the admission fee is mandatory (the more interesting part, in my view) survives.  Nicholas O'Donnell says "those remaining claims face a tall hurdle to survive."  Hrag Vartanian has called the misleadingness claims "the ultimate in legal trolling."  Lee Rosenbaum, on the other hand, thinks "the wording and typesize of the Met’s signage should make it clear and obvious that the amount paid is indeed discretionary" and that the museum "should just take care of that now, without waiting to be forced into greater clarity by a judge’s edict."

Let's get this started again

I've been neglecting the blog lately -- and, like clockwork, there's been a ton of art law happening.  Let's see if we can play some catch-up, but, first, just wanted to extend my thanks to Pippa Loengard for inviting me to be part of a panel discussion on deaccessioning up at the Kernochan Center at Columbia Law School earlier this week.  Speaking of which, they have their annual symposium a week from tomorrow.  Details here.

The latest on Prince-Cariou

I'm quoted in this Art in America piece on the latest developments.

Tell me again about the public trust (education of Kevyn Orr edition)

Gallerist's Dan Duray reports that the Cleveland Museum of Art is selling a pair of works at Christie's next month.

This is a helpful lesson to Detroit emergency manager Kevyn Orr that, if you need money for something (in this case, buying art), selling works from a museum collection is a perfectly acceptable way to obtain it.

He may be hearing from certain people that the works the city owns can't be sold because they are "held in the public trust," but obviously that can't be right or else it wouldn't be possible for the Cleveland Museum to just sell these off like this.  That's obvious, isn't it?

"We can clearly speak of negligence with serious consequences."

A little swamped again, but this story is just too good not to pass along:

"A Romanian man who has admitted to stealing masterpieces by Gauguin, Monet and Picasso on Tuesday threatened to sue the Dutch museum he took them from for making his robbery too easy."

On the Smith-Clay Resolution (UPDATED)

Art in America's Brian Boucher has a report on the agreement reached last week between artist Lauren Clay and the Estate of David Smith.  (I negotiated the settlement on behalf of the Smith Estate.)  He leaves out a crucial element of the agreement – namely, that Clay agreed not to make any more work based on Smith’s work without permission.  With that commitment in hand, the Estate had no problem allowing this limited body of work to be shown.

Sergio Muñoz Sarmiento has some thoughts on the underlying merits here.

UPDATE:  Art in America has a new piece up with a fuller description of the settlement:

"As part of the deal, which allows her to show and sell the seven works, Clay has acknowledged that these are her only pieces based on Smith's sculptures and agreed not to make further such works except by mutual consent. She resolved not to make multiples based on these seven works and pledged to exhibit an agreed-upon artist's statement along with the sculptures wherever possible."

Be sure to check out Nicholas O'Donnell's post (with images) here as well.

"The emergency manager’s deputies have repeatedly told DIA leaders that he needs $400 million-$500 million from them ...."

The Detroit Free Press has a look at some possible ways to "squeeze cash from billions of dollars of city-owned masterpieces without actually selling them."

There's an interesting dynamic at play here for the Deaccession Police.  Their instinct is always to throw cold water on all of these ideas.  For example, if someone suggests the city rent out the works, they will say "there's no real money in that."  They think any effort to generate value from the collection is just so ... icky.  (I believe that is a technical term fully recognized under the bankruptcy statute.)  They want to, as a bankruptcy lawyer quoted in the article says, "pretend the art doesn’t have value."

But I think there's real careful-what-you-wish-for potential here.  If they keep dumping on the alternatives to sale, if they keep arguing that the other options won't work, then that opens the door to the emergency manager saying, "Look, we tried to come up with ways to keep from having to sell the art, but everyone kept telling us those ideas wouldn't work.  We hate to have to do this, but there is no alternative to selling."

If I were a member of the Deaccession Police, I'd be talking up the possible rental streams every chance I got.

MoMA Acquires Occupy Wall Street Art

And Jim Johnson says it's "very, very depressing news."

"The latest outdoor artwork by the modernist sculptor to have been nipped by thieves in Britain"

The New York Times:  Another Henry Moore Work Is Stolen in Britain.

"If people were able to exchange opinions freely, cases like [Knoedler] would come to light much more quickly."

The Art Newspaper: AbEx fakes scandal silences the experts.

"Keep in mind that art sellers very often have preferences over the quality of buyers they sell to."

Tyler Cowen:  Price ambiguity as a buyer sorting mechanism.

"Because Amazon does not disclose sales figures, it is unclear whether this gamble is paying off."

The NYT's William Grimes: Art Collections a Click Away.

More from Grimes here.

Earlier post on the Amazon Art experiment here.

Sotheby's Battle

The other big story has been hedge fund manager and "activist investor" Daniel Loeb going after Sotheby's CEO William Ruprecht.  Wall Street Journal story on the initial salvo here.  Reuters on the poison pill response here.  Felix Salmon says Loeb is going to lose.

Knoedler Knews

One of the two big art law stories over the last few days was the Southern District decision denying a motion to dismiss a pair of collector lawsuits brought against Ann Freedman and Knoedler.  Laura Gilbert has the story in The Art Newspaper.  To me, the big takeaway was that the court sustained the RICO claims alleging a "pattern of racketeering activity," which, as Gilbert points out, carries the potential for treble damages.

And furthermore

I've been busy with the day job, but, before moving on to catch up on some of the other big art law stories over the last few days, the additional points I wanted to make about last week's big New York Times story on Detroit are:

1.  The story says that, in contrast to any proposed sale here, "museums regularly sell minor artworks in a curatorial culling process, using the proceeds to acquire other pieces."

That's not true at all.  The Hopper the Pennsylvania Academy is selling is not a minor work.  The Yves Klein the Brooklyn Museum sold last year is not a minor work.  The Cindy Sherman the Akron Museum sold last year is not a minor work.

It's misleading to suggest that the distinction is between sales of major works, on the one hand, and sales of minor works in a curatorial culling process, on the other.  Let's at least be honest about what's going on.  It would be more honest to say "museums regularly sell any damn works they please and they call it 'ethical' so long as the proceeds are used to buy more art."

The difference isn't in the quality of the works sold.  The difference is solely in the use of proceeds, and there is one use of proceeds -- to buy more and more art -- that the museum world wants to privilege above all others and then use smoke and mirrors to avoid having to ever actually explain why that use of proceeds is the only legitimate one.

2.  We again hear that a sale of "even a portion" of the collection would "cause an immediate withdrawal of the tax revenue that was voted into being last year by three Michigan counties."  But, as I've pointed out, that's not an unavoidable feature of that tax.  It would just be a punitive measure imposed by the surrounding counties, a form of blackmail.  They could just as easily leave the tax in place.

Tell me he did not just say that

Randy Kennedy has a story in today's Times about the situation at the Detroit Institute.  I hope to have more to say about it later, but for now, I was stopped in my tracks by the following quote from AAM president Ford Bell:

"Our tradition in this country is that artworks are held in trust for the public good, and you can’t have it both ways. You can’t say the works are held in trust until we decide they’re an asset, and we need to sell them."

Are you kidding me?

Am I awake?

Isn't that exactly the AAMD/AAM approach to deaccessioning?  They say the works are held in trust ... until they decide to sell them.

That Hopper was held in trust ... until PAFA decided to sell it.

Those Rymans, Chamberlains, and De Marias were held in trust ... until Dia decided to sell them.

That $30 million Persian rug was held in trust ... until the Corcoran decided to sell it.

And these are just in the last few months.  The list goes on and on.  The plain fact is that museums sell work all ... the ... time.

As museum director Hugh Davies has said:  "We museum directors can huff and puff about how once we bring these artworks into our collections ... they're held in trust for future generations. It's B.S. We go on and sell them [and use the proceeds to buy more art]."  It is, as Gresham Riley has said, simply an exercise in smoke and mirrors.

Bell is exactly right:  you can't have it both ways.  I've been saying that -- in those exact words -- for years.

"[T]he institute has fallen back on the worthless response selling art 'just isn’t done' in the museum world"

"But they’re not living in the museum world now. They’re living in the bankruptcy world."

Detroit News columnist Nolan Finley says the Detroit Institute "lives in a shocking state of economic denial":

"In recent days, I’ve talked to three people at the top of the decision-making in the bankruptcy process. All said, without question, that at least part of the collection will have to be — their word — 'monetized' before the bankruptcy is resolved.  The questions are how, and how much?"

He says "the business folks on the DIA board ... need to take this over and negotiate a deal" with the Emergency Manager to "deliver the $500 million or so I’m told he wants from the artwork as painlessly as possible":

"Can that money be found in the more than 60,000 DIA pieces in storage? Can leasing art deliver a cash flow? Would wealthy DIA donors buy the pieces and loan them back permanently to the museum? Could the major works be collateralized to back a bond sale?"

"If They Replaced Detroit's Art Treasures with Fakes, Would Anyone be Able to Tell?"

In The New Republic, Michael Kinsley says:

"By not thinking outside the box, Detroit is losing an ideal opportunity to test a suggestion made three decades ago by a curmudgeonly Harvard political scientist named Edward Banfield. Banfield wrote a book called The Democratic Muse, in which he proposed that paintings and sculptures in public museums be sold and replaced by high-quality reproductions. Most museum visitors, he argued, couldn’t tell the difference ... and thus would get the same experience from the fakes as they would from the originals."

Christopher Knight is not amused.

"The total excess payments in some years ran to more than $100 million, a crushing expense for a city in steep decline"

The New York Times:  Detroit Spent Billions Extra on Pensions.

"The main point holds true I think, that nobody really loves the ALR, but they do perform a service for the Art Market."

Derek Fincham weighs in on the NYT story on the Art Loss Register.

"You usually would expect a gallery ... would kind of do due diligence when they heard a story as cockamamie, far-fetched, and unbelievable as this"

The Art Market Monitor:  Jerry Saltz Doubles Down on Due Diligence Doubt.

"78% of respondents said they oppose a possible plan to sell DIA art to help resolve the financial crisis."

Story here.

Here's my question:  what if 78% of respondents said they were in favor of the plan?

Would the Deaccession Police then support a sale?

"But for the Register, despite its official-sounding name and pivotal role as a monitor, profits have not come easily, and the company’s future looks increasingly cloudy" (UPDATED 2X)

The New York Times takes a look at the Art Loss Register.

UPDATE:  Tom Flynn comes out of retirement to offer some (pointed) comments. Dorothy King describes her own experience with ALR here (and be sure to scroll down for the comment in response from Larry Rothfield).

UPDATE 2;  Noah Charney:  "The article was interesting and made clear why so many people within the world of art investigation, policing, and security find the ALR to be problematic."

Restitution Symposium

At DePaul Law, Nov. 14.  Details here.

"My fellow employees and I are entitled to a pension."

NYT:  Residents of Detroit Go to Court for Pensions.

BREAKING: Rosales Pleads Guilty (UPDATED)

Gallerist has the story.

UPDATE:  Lots more coverage.  New York Times here.  Wall Street Journal here.  Art Newspaper here.  And, on Twitter, Georgina Adam ("Oh boy, this is really going to shake everything up") and Lee Rosenbaum ("Who will Rosales implicate? She's agreed to 'cooperate fully' with enforcers for a possibly lighter sentence").  Lee also has more at her blog.

Ann Freedman Goes on Offense (UPDATED)

She's filed a defamation suit against dealer Marco Grassi.  He was quoted in the recent New York Magazine article about her as saying:  ""A gallery person has an absolute responsibility to do due diligence, and I don't think she did it. The story of the paintings is so totally kooky. I mean, really. It was a great story and she just said, 'this is great.'"

UPDATE:  The Art Market Monitor posts the complaint.

"The Louvre Is Allegedly a Hotbed of Crime"

Including roving bands of aggressive pickpockets.

Roberta Smith weighs in on Detroit (UPDATED)

She calls a possible sale "deeply alarming" and "cluelessly self-destructive."  The arguments will be familiar to anyone who's been following the discussion, but apparently some people really wanted to hear them made by someone at the Times.

A few reactions:

1.  She says selling "some of the art" would be "a betrayal of public trust and donors’ bequests."  As we saw yesterday, the donor bequests issue is complicated here.

2.  She also says it would be "a violation of the museum’s nonprofit status."  I don't know where she gets that; I don't think it's a violation of "nonprofit status" to sell some assets.

3.   She says the possible sale raises the question "who owns the art housed in public nonprofit institutions" and that "those who answer that it is held 'in public trust' are not just mouthing idealistic catchwords."  She doesn't say what else they are doing, but I have my usual question:  who owns the Hopper painting that the Pennsylvania Academy has decided to sell?  Is that work not held "in public trust" and if not, why not?

4.  She quotes Graham Beal's statement that "selling any art would be tantamount to closing the museum" and then says:  "This was not hyperbole. As nonprofits, museums can sell art only to buy other, supposedly better art. If Detroit’s art were sold to repay the city’s debts, it would violate the city’s own 1919 agreement with the institute. It would also automatically rescind the year-old tax vote by the three counties."  I'm not sure any of those leads to the conclusion that selling "any art" (don't they have a Hopper lying around somewhere?) is tantamount to closing the museum, but let's take a closer look one by one.

In the first sentence, the conclusion -- "museums can sell art only to buy other, supposedly better art" -- doesn't follow from the lead-in ("as nonprofits").  It is not a feature of all "nonprofits" that they can sell art only to buy other art.  I guess you could say "As a member of the AAMD, the museum can only ..." but then you'd be appealing to the ethics rules of a private organization; you're not saying something about the essential nature of "nonprofits."  And in any event, it isn't clear how the violation of that rule -- in this extreme circumstance -- would be tantamount to closing the museum.  The museum would still be there, with one, or two (or however many) fewer works.

I'm not familiar with the terms of the 1919 agreement between the city and "the institute," but, again, I don't see why a breach of that agreement (for example by selling one Van Gogh) would be tantamount to closing the museum.  It may be wrong, it may be a breach of contract, it may be repulsive.  But why is it tantamount to closing the museum?

And last, this may be splitting hairs a little, but to say a sale would "automatically" rescind the recent millage sounds, to me, like, by its terms, it does not apply in the event of a sale.  But in fact, what I believe has happened is that the surrounding counties have threatened to cut it off if any sales happen (though correct me if I'm wrong about that).  That's like me announcing that, if PAFA sells the Hopper, I will blow up the museum, and then saying "we can't sell the Hopper; it would be tantamount to destroying the museum."  The millage is not being "automatically" cut off as a result of the potential sales; instead a decision has been made by certain political actors to cut off funding if they don't like the outcome of the bankruptcy process.  And, in any event, even the loss of the millage wouldn't necessarily be tantamount to closing the museum.  During the campaign for its passage, the museum said, if the millage didn't happen, "there would be a severe reduction of museum services and programs," including, perhaps, "opening selected galleries only on weekends, elimination of school tours, public programs and community outreach."  They did not suggest it would be tantamount to closing.

UPDATE:  Sergio Muñoz Sarmiento has some thoughts.

And speaking of Mark Stryker's exhaustive history of the DIA

(Last one for tonight, I promise.)  I wanted to break out in a separate post his (excellent) summary of where things stand at the moment:

"The complexity of the situation defies reductive analysis. ... Neither the federal judge in the case nor creditors can force the sale of any asset. However, creditors are pushing for sales to increase the amount of money they'll get beyond the 10 to 20 cents on the dollar Orr is currently offering. In the end, Orr could decide he needs to sell art to get a deal. And if the judge believes the city hasn't done enough to monetize its assets, he can deny Orr's reorganization plan and pressure him to find more cash, which could force a sale.

"The DIA's legal protections also remain unclear. Michigan's attorney general has issued a formal opinion that says a forced sale of DIA art would be illegal because the museum holds the works in the public trust. However, many experts say such reasoning may not hold up in federal bankruptcy court. The DIA has lawyered up, and behind the scenes is preparing for a potential legal fight that could take months or years to resolve. ...

"Some who favor selling argue that it's morally unconscionable to protect the art while city workers may have their pension cuts and city services, including fundamental police and fire protection, remain hamstrung by lack of resources. But those who oppose a sale argue that money would mostly go to Wall Street, that ... destroying one of the city's greatest cultural institutions would leave Detroit weaker, not stronger, post-bankruptcy."

One question:  do you get the sense that the Deaccession Police -- the Day for Detroit crowd -- agree that "the complexity of the situation defies reductive analysis"?

Speaking of clever ...

James Cuno has an op-ed in The Art Newspaper under the headline "The Immorality of using Detroit's art to bail out bankrupt city," but he doesn't really get around to the immorality argument until the last two paragraphs.

When he finally does, he makes an argument not unlike the one I discussed in the post below.  There, the Detroit Institute is trying to create donor intent going forward.  Cuno tries to read in implied donor intent with respect to the past:

"[The city] accepted gifts of works of art from donors who believed that they were going to serve a lasting, public purpose, and it bought others with funds provided by donors who thought similarly. Some no doubt believed that the works of art with which they were identified would forever remain in the museum’s collection. Others presumed that if they were sold, the resulting funds would be limited, as museum professional guidelines stipulate, to the purchase of other works of art. Others may have imagined that the funds could be used to support conservation and education. In any case, they all must have thought that their gifts were going to be used to enhance public access to works of art."

I see a number of problems with this argument, including the following.

First, it assumes every violation of donor intent is "immoral."  But even if you buy his story about what the donors "must have" thought, not every departure from donor intent is necessarily immoral; that has to be argued for, not assumed.  (For example.)

Second, to the extent donors believed their gifts "were going to serve a lasting, public purpose," well, helping to pay retiree pensions, or to save Detroit from total collapse, are lasting public purposes as well.

Third, I could be wrong about this, but, based on the exhaustive history of the DIA just published by the Detroit Free Press's Mark Styker, I think it's factually incorrect.  According to Stryker, the museum "became a city department" in 1919 and began to "dr[a]w operating funds from the same pool of money that supported parks, police and other services."  "Flush with city cash, the DIA embarked on a buying spree between 1922 and 1930 that landed some its greatest treasures" -- Van Gogh, Rembrandt, Bruegel, Matisse, Bellini, Van Eyck, etc.  If this is right, then, with respect to these works at least, THERE ARE NO 'DONORS' TO SPEAK OF IN THE RELEVANT SENSE.  Cuno's (clever) "implied donor intent" theory never even gets off the ground.

Manufactured Intent

This is interesting.

The Detroit Institute is going to insert into its deed of gift form "a line stating that from any sale of the work, the proceeds can only be used to buy more art."

So what they're doing is creating the "donor intent" that they will then turn around and rely on to limit sales.  It's clever, but that's a funny conception of donor intent.  Isn't it more an expression of donee intent?

And I have another question.  One of the main arguments we hear against deaccessioning is that it discourages future donations.  We've seen it a million times.  Why wouldn't somebody say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?

But now we see Detroit going ahead and forcing donors not only to confront the fact that their work might be sold -- that there is in fact no guarantee that it won't be sold tomorrow -- but to actually sign off on it.

It's almost as if museums don't really believe that donors are put off by the possibility of future sales.

"'Central Victim,' hmmmm.”

Via Art F City, some thoughts from Josh Baer on Ann Freedman's NY Mag interview:

"Now that it appears that the defense that the works were not fakes seems to be have evaporated – will Freedman and Knoedler offer $$$ (tens of millions) back as refunds to the 'lesser' victims??? What about the red flags of raising prices 6-700%?? What about their assertions to buyers about some experts who never saw works (although many did) and cataloging that would never happen?"

"Two more guilty pleas in case involving Helly Nahmad"

The Art Newspaper's Laura Gilbert has the details.  Some background here.

"Christo is one step closer to realizing his dream of coating parts of the Arkansas River with shimmering cloth panels"

The Wall Street Journal: Colo. Judge Refuses to Block Christo’s ‘Over the River’ Project.

By the way: the Royal Geographic Society is repulsive

It's selling paintings to plug a pension deficit.

Serious question:  what kind of belief is the belief that deaccessioning (other than to buy more art) is wrong?  If you follow the debates at all, it certainly feels like a moral judgment:  it's repulsive, Stalinesque, beyond the pale.  So why don't we see the same sort of outrage from the usual suspects when, say, a U.K. museum sells work to plug a pension deficit?  If it's morally repulsive, it's morally repulsive, no matter where it happens.  Right?

So complicated, the Deaccession Police Handbook.

Where were we?

A point I wanted to make before the holiday (and other impediments to blogging):  I don't know if it comes through on the blog, but I'm not the world's biggest fan of the AAMD approach to deaccessioning.  Yes, it's true.  But, putting two recent posts together gives, I think, a reasonable outline of an alternative approach:

1.  Judge each case on its merits.

2.  Trust the intelligence and professionalism of museum professionals and the seriousness of responsible boards of trustees.

There.  Is that so hard?

"Deciding that this was a reasonable decision, the association has become willing to judge each case on its merits."

Judging each case on its merits -- what a novel concept!

Deviating

Lee Rosenbaum continues to be outraged by the AAMD's lack of outrage at the Pennsylvania Academy's Hopper sale.  She's figured out that the "AAMD will censure deaccessions only when sale proceeds are not used exclusively for acquisitions. Any other deviations from responsible stewardship, no matter how egregious, get a pass."

But what she doesn't see is that the AAMD has no criteria by which to judge a sale a "deviation from responsible stewardship" other than by reference to how the proceeds will be used.  That is, as far as the AAMD is concerned, if the proceeds are "used exclusively for acquisitions," then -- by definition -- it's an example of responsible stewardship.  If the proceeds are used for anything else, then -- again by definition -- it's always a deviation from responsible stewardship (and always an "egregious" one at that).

If you like those "ethics," you can have them.  I'll pass.

"Selling any art would be tantamount to closing the museum"

The DIA's director Graham Beal would have you know.

Any art!  Even one work.

Tantamount.

Unless of course the proceeds are used "to acquire more (and better) art."

Then it's fine.

Not tantamount at all.

Don't be so touchy.

"We don’t need the AAMD to serve as a museum police force." (UPDATED)

Exactly!  Where do I sign the petition?

David Ross, in a BlogBack to Lee Rosenbaum, says she should lay off the calls for the AAMD to DO SOMETHING NOW about the Pennsylvania Academy's decision to sell an important Hopper.  He writes:

"I do not think this is an issue for the AAMD, or any external oversight body except the museum’s own trustees. They are the men and women entrusted with the preservation of the works held by their museum. If they agree, then you may (and should) criticize them and their director. ... I feel strongly that we should trust the intelligence and professionalism of museum professionals and the seriousness of responsible boards of trustees. We don’t need the AAMD to serve as a museum police force. State and federal tax authorities and attorneys general can and do enforce violations of law, and that’s how it should be.  So criticize all you like when you feel an institution is selling work you feel they should not, and turn up the heat when you feel trustees are not living up to their responsibilities, but don’t expect the AAMD to solve or even address your concern."

Precisely, and I have just one question:  why shouldn't it apply to all deaccessions, regardless of how the proceeds are used?

UPDATE:  Sergio Muñoz Sarmiento is signing the petition too.

Felix Salmon on the true age of mechanical reproduction (UPDATED)

Good stuff.

UPDATE:  The Art Market Monitor agrees.

Quick Hits

Schulhof sues.

McEnroe wins.

"Rub should take a short drive over to Philbrick’s place to explain why 'Weehawken,' entrusted to PAFA’s care, must remain in Philadelphia for the benefit of its public." (UPDATED)

Lee Rosenbaum remains the only member of the Deaccession Police to seriously grapple with what it might mean for works to be held in the public trust.

The others are content to say:

Works sold for any reason other than acquisitions -- OMIGOD! REPULSIVE! PUBLIC TRUST!!!!

Very same works sold for acquisitions -- No big deal.  Don't be so touchy.  (For example.)

But here's Lee, on yesterday's news that the Pennsylvania Academy of the Fine Arts is selling "a treasured historic masterpiece" from its collection:

"How can the Association of Art Museum Directors convincingly argue for 'the City of Detroit’s responsibility to maintain and protect an invaluable cultural resource [the collection of the Detroit Institute of Arts] that has been entrusted to its care for the benefit of the public,' when one of the association’s own members ... has just announced plans to cavalierly and irresponsibly monetize a treasured historic masterpiece from PAFA’s collection ...?"

She adds:

"How can Detroit successfully (and rightfully) argue for the sanctity of its collection when other museums regard their masterpieces as expendable?"

As I've said repeatedly, the works are either held in the public trust or they're not.  Can't have it both ways.

UPDATE:  More from Lee:  "If AAMD looks the other way when one of its own ... plays fast and loose with the public trust that the 'permanent collection' will ... remain permanent, the credibility of its no-sale argument in Detroit may be seriously undermined."  Ya think?

"The chart of historic gold prices does suggest that art prices may settle in where they are for some time to come"

The Art Market Monitor:  If Gold Is Setting Up For A Historic Tear, What About Art?

Ann Freedman is more shocked than everybody (UPDATED)

She tells James Panero in New York magazine.

Judith Dobrzynski has "a nagging question; Knoedler sold 40 allegedly fraudulent works for $63 million. But she paid much, much less to Rosales. How does she explain that gap? Rosales knew what she had. How did Freedman get such giant markups without doing additional research, conservation, or any of the other things that allow dealers to double and triple the prices they charge?"

Greg Allen:  "Like Vincente Gigante in GVill, Freedman's shuffling around the art world in a victim robe."

UPDATE:  Patricia Cohen says what makes Panero's an exclusive is it's a "story no one else wants."

Tell me again about the public trust (Edward Hopper edition)

The Pennsylvania Academy of Fine Arts is selling one of its two "signature oil paintings" by Edward Hopper.  Hey, what do you need two signature oil paintings for?  Isn't one enough?

Since the proceeds will go into "a fund largely for acquisition of contemporary art," it's all good.  The signature oil painting is not held in the public trust.  Future generations can fend for themselves.  Potential donors will not say, "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?" Don't be so touchy.

The Philadelphia Inquirer's Stephan Salisbury asks a good question:  "Why not seek donors to seed the new acquisition fund instead of selling?"

The museum director's answer:  "We have extensive capital needs for our buildings. ... We have to harbor our resources."

This points up another way in which the Standard View on deaccessioning is completely incoherent.  If you use the money to buy more art, this view holds, that's perfectly fine; if you use the money for any other reason, up to and including keeping from going out of business, that's repulsive, Stalinesque, etc. etc.  But money is fungible.  Suppose the academy needs $10 million for capital needs and $10 million for acquisitions.  And suppose they can raise $10 million from donors.  They can say they're using that $10 million for the capital needs and so the proceeds from the sale of the Hopper will go to acquisitions.  But we could just as easily say the $10 million from the donors went to the acquisition fund and the Hopper proceeds are being used for the capital needs.  It's all just a semantic game.  Why anyone takes it seriously is beyond me.

Read more at http://www.philly.com/philly/entertainment/20130828_Pennsylvania_Academy_to_sell_Hopper_painting.html#TGWlYjBwKGumj2Jp.99

into a fund largely for acquisition of contemporary art
Read more at http://www.philly.com/philly/entertainment/20130828_Pennsylvania_Academy_to_sell_Hopper_painting.html#TGWlYjBwKGumj2Jp.99

into a fund largely for acquisition of contemporary art
Read more at http://www.philly.com/philly/entertainment/20130828_Pennsylvania_Academy_to_sell_Hopper_painting.html#TGWlYjBwKGumj2Jp.99

Pennsylvania Academy of the Fine Arts, owner of two signature oil paintings by Edward Hopper
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The Pennsylvania Academy of the Fine Arts, owner of two signature oil paintings by Edward Hoppe
Read more at http://www.philly.com/philly/entertainment/20130828_Pennsylvania_Academy_to_sell_Hopper_painting.html#TGWlYjBwKGumj2Jp.99

The Pennsylvania Academy of the Fine Arts, owner of two signature oil paintings by Edward Hoppe
Read more at http://www.philly.com/philly/entertainment/20130828_Pennsylvania_Academy_to_sell_Hopper_painting.html#TGWlYjBwKGumj2Jp.99

The Pennsylvania Academy of the Fine Arts, owner of two signature oil paintings by Edward Hoppe
Read more at http://www.philly.com/philly/entertainment/20130828_Pennsylvania_Academy_to_sell_Hopper_painting.html#TGWlYjBwKGumj2Jp.99

The Pennsylvania Academy of the Fine Arts, owner of two signature oil paintings by Edward Hoppe
Read more at http://www.philly.com/philly/entertainment/20130828_Pennsylvania_Academy_to_sell_Hopper_painting.html#TGWlYjBwKGumj2Jp.99