Wednesday, February 26, 2014

New Resale Royalty Legislation Introduced

Patricia Cohen has the story in the Times.  Lee Rosenbaum has a close analysis here, including the following:

"The amount of the royalty payable on a resale would be capped at $35,000.  This is a major collector-friendly change:  There was no cap in [the] previous bill."

New Orleans residents foil plot to steal Banksy mural

Story here.

Monday, February 24, 2014

"The courts have taken an approach to fair use that we do not believe was originally intended."

The NYT's Patricia Cohen had an interesting piece over the weekend on efforts by photographers' groups to push back against expansive interpretations of fair use.  Alfred Steiner thought it misled by failing to "emphasize [the] crucial difference between one copy (artwork) and many copies (movie)."  For more on that distinction, see here.

60 Minutes on art forger Wolfgang Beltracchi

You can watch it here.   Deborah Solomon and Jillian Steinhauer were unimpressed.

Derek Fincham says "it was a reminder of how little safeguards protect genuine works of art from forgeries." I would say it's a reminder of how little difference there sometimes is between genuine works of art and forgeries.

Saturday, February 22, 2014

"Bateman said Randolph College’s Maier Museum of Art is not a 'museum' but part of a 'non-profit institution that owns art.'"

"As a result it operates not according to the rules and regulations that govern museums but the fiduciary responsibilities of an institution of higher education, said Bateman."

Bateman is Randolph College's President, and I think he's clearly right.  For those interested in this issue of university-owned artworks -- I mean really interested in grappling with the complexities rather than doing the usual Ohmigod Repulsive routine -- I would start with the law review articles mentioned here and here.

It's also interesting to compare Randolph's approach to that taken by the Brandeis administration during the Rose debacle.  Brandeis started out by conceding too much rhetorical ground to the Deaccession Police.  They thought if we have a "museum," we are bound by their rules.  So they came up with what turned out to be a disastrous plan to "close" the Rose.  But that put them on the defensive right from the start.  Randolph, on the other hand, made the decision to stand up to the deaccession bullies, to refuse to accept their way of framing the debate.  As Bateman says in the article linked above:  "They [the AAMD and the other deaccession bullies] have a single position and they don’t want anyone to think about these issues in any way other than the way they want you to think about it."  I think he just summed up about five years of my blogging on this subject in one sentence.

Friday, February 21, 2014

"The lawsuit on Friday seeks $40 million in damages and says the plaintiffs lost sales because potential buyers were deterred by the foundation’s statements and actions."

An authenticity lawsuit against the Haring Foundation.

The latest from Detroit

Mark Stryker:  Orr's plan would protect artwork, but it's not a done deal yet.

Their sword's grown old and rusty

The big news this week is that the Corcoran Gallery is giving up the ghost.  Carol Vogel has the details.

For now, I'll just say that it's a massive instance of the Ellis Rule -- the deal "ensure[s] that the Corcoran’s art collection would remain in public institutions."  So, while the usual suspects will fall over themselves in the usual competition to see who can be THE MOST OUTRAGED by this OUTRAGEOUS OUTRAGEOUSNESS, my initial reaction is that I'm with David Ross:  "I agree this is sad, and that the Corcoran has long been a tragic institution, but this is not such a bad outcome."

Or, as Tim Schneider tweeted:

"After firestorm over (now remote) possibility of Detroit Institute of Art having to deaccession/sell parts of their permanent collection, a bit surprised I haven't seen more relief over fact that Corcoran Gallery of Art's collection will stay safe (ie public) w/Natl Gallery. Which isn't to say the whole scenario is good news. It's messy and from a historical standpoint, sad. But it could be worse. Just imagine outrage if announcement was that Corcoran would be selling off works to keep limping forward, recoup losses, or pay creditors."

Yes, imagine the outrage.  But is it really better to transfer the entire collection to the National Gallery than to have given them some of the collection in exchange for the cash needed to keep the Corcoran afloat?

Are we sure about that?

Tuesday, February 18, 2014

"A guard asked the man to put it down, but instead he threw it to the ground, smashing it" (UPDATED)

NYT:  Ai Weiwei Vase Is Destroyed by Protester at Miami Museum.

Six thoughts from Ann Althouse.

UPDATE:  There's video of the incident.

Who's Faking Whom?

Just learned of a First Department decision from November that could wreak some serious havoc on the world of authentication litigation.  The decision is here.  Briefly, Dealer A sells some work to Dealer B and sues for non-payment.  In defense, Dealer B claims (among other things) that “some or all” of the works are fakes.  Dealer A denies this:  he says that, during the period of time Dealer B had possession of the works, “either [Dealer B] or some other custodian forged the authentic works that [he] originally gave to [Dealer B].”

The trial court (Justice Kornreich again) holds that “the only opinion that can shed any light on the authenticity of the Returned Works is that of an expert who has examined the originals and the Returned Works and has the wherewithal to detect a forgery” -- in other words, an authentication expert who saw the works before they were sold and can look at them again now.  The First Department affirmed.  “The motion court correctly determined that ... the testimony of an expert who viewed the consigned works before they left [Dealer A] and who can testify that they were forgeries when they left and were forgeries on their return.” “This,” they add, “is consistent with how art work and forgeries are identified, authenticated and detected.”  No biggie.

But imagine an ordinary authentication lawsuit.  A collector buys a work from a gallery, with a warranty of authenticity.  Some time later, the collector discovers (let’s imagine conclusively) that the work is a fake and sues the gallery.  The gallery can now say, “Wait a minute.  The Pollock I sold you was genuine.  Yes, this is a fake, but how do we know it’s not a fake created by you ‘or some other custodian’ in the two years since the work left the gallery?”  Unless the collector can produce an expert who examined the work before the sale and can say it’s the same as the one he now has in his possession, he loses.  That can’t be right, yet it seems to be what the case says.

Now, the facts in this First Department case were kind of odd – Dealer B had passed the works on to another party, who “had custody of the art for 2 to 6 years” leading up to the lawsuit – so maybe the intention was to limit it to similar situations where “chain of custody” is an issue.  But again, there is nothing in the language of the decisions themselves that is so limited.  Definitely worth watching to see how this develops.

Monday, February 17, 2014

“In essence, plaintiffs’ breach of contract cause of action alleges that, with the benefit of hindsight, it appears to have entered into a bad bargain”

I finally got around to reading the decision on the motion to dismiss Ron Perelman’s lawsuit against Gagosian Gallery.  I had gotten the impression from the headlines in the press (see for example here, here, here) that it was something of a victory for Perelman, but it turns out to have been a pretty decisive victory for Gagosian.

The court threw out the breach of contract and unjust enrichment claims, as well as the breach of fiduciary duty claim:  “plaintiffs’ allegations make clear that they were experienced and sophisticated business investors who entered into negotiated, arm’s-length transactions with defendants, which does not give rise to a fiduciary relationship. … Moreover, plaintiffs’ reliance on the fact that Perelman and Gagosian were friends for 20 years, ‘socialized together,’ were ‘business acquaintances,’ had ‘worked together’ previously  and invested together, to establish a fiduciary relationship is unpersuasive.”

All that’s left is the “fraud” claim, which alleges that, as part of a complicated “exchange” transaction, the gallery “knowingly” “overvalued” the works Perelman got back.  Apparently the gallery put in some evidence that this was not the case, but “these Invoices are not the type of conclusive documentary evidence upon which the Court generally relies on a pre-answer motion to dismiss.”  So the claim survived for now.

For background on the case, here is Felix Salmon in 2012 correctly observing that “you don’t become a fiduciary because you’re friends, or because you’re knowledgeable, or any of those other reasons.”  He said the suit was “utterly ridiculous, and will almost certainly get thrown out of court.”  Close.

Sunday, February 16, 2014

Flagrant egregiousity

A couple of follow-up points on Randolph College's recent sale of a $25 million Bellows.  (Not to be confused with the Pennsylvania Academy of the Fine Arts recent sale of a $40 million Hopper.  The former is the Worst Thing That's Ever Happened.  The latter is nothing for anyone to be concerned about.)

First, I like how Randolph's president deals with the slippery slope objection:

"Randolph’s collection contains significant works, Dr Bateman said, that aren’t up for sale, such as works by Georgia O’Keeffe and Edward Hopper. Asked if the logic of selling off the Bellows shouldn’t concern those afraid that similar arguments could be made to sell the O’Keeffe or the Hopper, Dr Bateman said that wasn’t the case. 'We know how much money we need and it can be done with these [already planned] sales,' he said."

That's a good answer, but what really interests me is:  how come we never hear the same question with the "good" kind of deaccessionings?  How come no one ever asks if the "logic of selling off the Hopper" shouldn't concern those afraid that similar arguments could be made to sell lots of other masterpieces?  I saw some people criticize the Hopper sale, but only on its own merits (just as one could criticize the Randolph sale on its own merits).  But you never see anyone criticize sales-to-buy-more-art on slippery slope grounds.  That's reserved exclusively for sales where the proceeds are used for other purposes.  Strange.

I also wanted to call attention to the statement issued by the AAM on the sale.  Here it is, in its entirety:

"The sale of George Bellows’s 'Men of the Docks' by the Maier Museum of Art at Randolph College is a flagrant, egregious violation of our Code of Ethics for Museums, showing total disregard of an important tenet common to the charter of all museums: collections are held in the public trust. And the public’s trust is the coin of the realm for museums. Strict adherence to the highest standards and best practices has made museums of all types among the most trusted sources of information for the American people. And the sale of 'Men of the Docks' threatens that lofty status. Further, the trust of both the public and elected officials at all levels of government has enabled museums to remain largely a self-regulated industry; this action belies that distinction. The 3,500 museum members of the American Alliance of Museums—and especially our 441 college museum members—vigorously protest the sale of a great American artistic treasure."

Is it me, or are they not even trying any more?  The "coin of the realm"?  What is that supposed to mean in this context?  This action belies what distinction?  Who is going to be convinced by this kind of rhetoric that didn't already completely agree with their position?  What then is the point?  It's almost as if they felt like they had to say something so the Deaccession Police couldn't criticize them for not saying anything.

Their statement on the Pennsylvania Academy's Hopper sale was less publicized, so, as a public service, I am reproducing it here:

"The sale of Edward Hopper's 'East Wind Over Weehawken' by the Pennsylvania Academy of the Fine Artse is a flagrant, egregious violation of our Code of Ethics for Museums, showing total disregard of an important tenet common to the charter of all museums: collections are held in the public trust. And the public’s trust is the coin of the realm for museums. Strict adherence to the highest standards and best practices has made museums of all types among the most trusted sources of information for the American people. And the sale of 'East Wind Over Weehawken' threatens that lofty status. Further, the trust of both the public and elected officials at all levels of government has enabled museums to remain largely a self-regulated industry; this action belies that distinction. The 3,500 museum members of the American Alliance of Museums vigorously protest the sale of a great American artistic treasure."

It's the coin of the realm, people.  What more do you need to know?  You can read the whole statement here.

Oh, one other important distinction between the two sales:  the (bad) Randolph sale was to the National Gallery in London, so the work remains in the public domain.  The (good) PAFA sale was to an anonymous private buyer.

As usual, it all makes perfect sense.

Artist Pension Trust After 10 Years

Daniel Grant gives a status report.  Some background, from when it was just starting out, here.

"The only way Starbucks will be hurt by this is if it decides to sue rather than laugh"

Kal Raustiala and Chris Sprigman on the legality of "Dumb Starbucks."

Monday, February 10, 2014

"I don’t want to be the judge who has a Picasso destroyed.

Preliminary injunction granted blocking the removal of "a large curtain painted by Pablo Picasso that has decorated the Four Seasons Restaurant since its opening in 1959."

Friday, February 07, 2014

Why do the Deaccession Police hate the British?

Carol Vogel reports today that Randolph College has sold a George Bellows painting to the National Gallery for $25.5 million.  I haven't bothered to check, but I'm sure the usual suspects are rending their garments.  But as Vogel tells it, it sounds like a pretty good deal all around: "It is the first major American painting to enter the National Gallery’s collection. The acquisition is also the start of a partnership between Randolph and the museum. Curators will go to Randolph to lecture; students from the college will be invited to do internships at the museum; and it is possible, officials at the college said, that from time to time, Randolph will be able to borrow the painting."


Most importantly, the work stays in "the public trust."  Or have we decided the British don't count as part of the public?

Thursday, February 06, 2014

I think we may need a ruling from the Deaccession Police on this

Here's a fascinating one.

A Portuguese bank owned a bunch of MirĂ³s.  "Crippled by debt and management irregularities," the bank was taken over by the Portuguese government, which sought to recoup some of its losses by selling the work.

But aha ... the moment the works became owned by the government, they became "cultural property" that it would be outrageous to sell.

If the bank had sold the works and used the proceeds to pay its creditors (including the government), I assume that would have been non-controversial.  But by switching the order around (seizing the works and then attempting to sell), the government boxed itself into a corner.

"How does someone so capable of protecting his own art interests get taken in by a scam of this magnitude?"

ARTINFO's Rozalia Jovanovic reports on a lawsuit brought by "art dealer and former Wall Street shark Asher Edelman."

The biggest art forgery case in Canadian history?

The keyboardist for the Barenaked Ladies claims to be one of the victims.

Wednesday, February 05, 2014

It's held in the public trust ...

... but we don't want the public to actually get to, you know, see it.  Controversy over a MoMA plan for its sculpture garden.

Sunday, February 02, 2014