Saturday, November 30, 2013

“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.

Wednesday, November 27, 2013

"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."

Tuesday, November 26, 2013

"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'."

Monday, November 25, 2013

"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!"

Friday, November 22, 2013

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."

Thursday, November 21, 2013

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. ."

Wednesday, November 20, 2013

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.

Tuesday, November 19, 2013

"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."

Sunday, November 17, 2013

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.

Monday, November 11, 2013

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-winBesides 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.

Saturday, November 09, 2013

"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.

Friday, November 08, 2013

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

Randy Kennedy has the story here.

UPDATE:  Tyler Green adds a detail.

Thursday, November 07, 2013

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.

Tuesday, November 05, 2013

"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.

Monday, November 04, 2013


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.