"Police Say Rome Airport Workers Ran Art-Theft Ring"

Story here.

"Prioritizing giving to the arts over other charities comes from the passions, what donors think matters."

Michael Rushton on effective altruism and the arts.  (For more on effective altruism, see here and here.)

I'm beginning to think they might not solve this case

Boston Globe:  Latest search for Gardner paintings came up empty.

"Five Legal Cases Changing the Art Market as We Know It"

Really good end-of-year piece by Laura Gilbert at Artsy.  Not all five are "cases," but I especially liked her take on the proposed authentication legislation in New York:

"THE TAKEAWAY:
If the bill passes in its present form, authenticators still face the risk of paying their own legal fees, even if they win, which is what sidelined them to begin with. Whether the possibility that a losing plaintiff will have to pay their fees will provide enough reassurance for authenticators to once again re-enter the market remains to be seen."

Also good (but not quite as legal-focused):  Georgina Adam in The Art Newspaper:  2015's biggest art market developments and what they mean.

"Even a secretive museum is better than no museum."

Kriston Capps has a long post on the issue of collector-founded museums, discussed recently here. To his credit, he seems to recognize it's a complicated issue.  For example:  what would happen if we crack down too hard on these museums?

"What if the Kreegers hadn't seen any incentive in turning their home and art fortune into a museum for the public? What if it didn't make sense for Duncan Phillips, or Henry Frick, or Alice Walton, or William Corcoran? One alternative is every art lover's nightmare: collectors who buy artworks and never show them at all."

The whole thing is worth reading.

This is why nobody authenticates any more

The New York Post:  "A California man claims in a Manhattan lawsuit that he lost out on an $800,000 payday after a Russian art foundation wrongfully declared one of the works he owned a fake."

The proposed New York State legislation isn't going to meaningfully change things, either.

In limine

The Art Newspaper's Laura Gilbert:  Lawyers battle to tip balance of evidence before Knoedler trial. Trial starts Jan. 25.

"If we could ban slippery slope arguments, the quality of public debate would be vastly greater."

Eric Posner on the deaccessioning debate.

Not really -- he's talking about something completely different.  But I really liked that quote.

Held in the public trust (television spectrum rights edition)

This story from a few days ago put me in mind of the deaccessioning debate.  Howard University has its own public television station, and it's considering selling off the rights to the spectrum on which it broadcasts ... for "hundreds of millions of dollars."  Can it do so?  Is the spectrum "held in the public trust" the way a painting hanging on the walls of the station is presumed to be?

What interests me most about the story is the way it presents both sides of the issue -- "proponents of a sale argue that it could stave off more painful cuts to the university’s core operations and could bolster financial aid," while those against a sale argue that "Howard has a responsibility not only to its students but also to Washington to keep the station on the air" (sound familiar?) -- and then leaves it there.  Neither side has a trump card to win the debate.  But imagine if one side had a conversation stopper, an "ethical" principle handed down by, say, the AA(PB)D (the Association of American Public Broadcasting Directors) that prohibited consideration of the sale.  Wouldn't that be weird? And wouldn't it be weirder still if the rest of us credited that "ethical" principle as anything more than an expression of the desired outcome of one side of the debate?  Yeah, that would be crazy.

Here We Go Again

Another infringement suit against Jeff Koons.

Story here.

The experts -- including my co-teacher Amy Adler -- weigh in here.

Second Circuit Affirms Haring Decision

Earlier this month, the Second Circuit affirmed a District Court decision dismissing authentication-related claims against the Haring Foundation.  You can read the decision here.   I think the most significant aspect the decision -- and potentially a hugely important tool for defendants in these sorts of cases -- is that it confirmed the lower court's take on the "special damages" requirement (discussed in point 6 of my post on the earlier decision):  that is, because the plaintiff could not name both (1) the specific individuals who decided not to buy the work and (2) the price they would have paid, they could not make out a claim for product disparagement.  As I said in the earlier post:

"That would, as I say, be a difference-maker ... but is it right?  I am minding my own business with what I think is a $50 million painting by Artist X hanging on my wall.  Out of nowhere, the Artist X Foundation (or some other well-respected authority on Artist X's work) announces to the world that my painting is not an authentic work by Artist X (and is therefore now worthless) ... and there's nothing I can do about it because I can't point to a specific sale that I lost?"

Apparently, yes.

Lawsuit of the Day

New York Post:  "A Manhattan man is suing the Met, claiming it’s committing sacrilege by depicting Jesus as a blond."

Second Circuit Affirms Biro Dismissal

Story here.  Opinion here.  Background here.

"Exactly why the opera destroyed the sculpture is unknown."

"Two years after artist John Raimondi learned the Palm Beach Opera had sold one of his signature bronze sculptures for scrap, he has settled a lawsuit he filed against the non-profit ...."  Amount undisclosed. Background here.

Another Knoedler Settlement (UPDATED)

This one involving John Howard and the fake de Kooning he bought for $4 million.  Laura Gilbert has the story in The Art Newspaper:  "The forgery scandal ... spawned ten lawsuits. Including Howard’s case, five of them have now settled.  The trial of a sixth, brought by Sotheby’s chair Domenico De Sole and his wife, Eleanore, is scheduled to begin on 25 January."

UPDATE:  More here.

"With the settlement, both are resolute that they will not have anything to do with each other in the future."

A settlement in the Danh Vo-Bert Kreuk lawsuit.  Background here.

"More than a million people have visited The Barnes Foundation since the art museum moved to Philadelphia from a suburb in May 2012."

"That's almost three times the number of visitors who saw its extensive collection in its former home in the five years before the relocation."

The AP:  Barnes art museum looks to build on successful move.

But ... theft!

Related:  Julia Halperin in The Art Newspaper:  How the Barnes Foundation is reinventing itself.  Among other things, "[o]ver the next five years, the Barnes plans to launch its first formal exhibition programme, commission new work by contemporary artists, digitise its archive and open up its collection to scholars."

But ... conspiracy!

Also related:  Barnes Foundation announces free weekday admission for college and university students.

It's an outrage, I tell you.

"It is hard to overstate the gravity of the Castelvecchio thefts."

Thomas Marks on the recent theft of 17 paintings from one of Verona's most important museums.

"The letters were sent after an article in The New York Times earlier this year that examined the proliferation of tax-exempt private museums created by wealthy art collectors, sometimes in their own backyards." (UPDATED)

The NYT's Patricia Cohen reports that the Senate Finance Committee is looking into the issue of collector-founded museums, "questioning whether the tax-exempt status they enjoy provides sufficient public benefit to justify what amounts to a government subsidy."  Her earlier article is here.

As I said when the previous article was published:

"My general take on this is that, while there are certainly valid concerns here, one way to look at these arrangements is as part of the deal we make in order to get broader access to these (amazing) collections eventually.  ...[T]hink of Glenstone as a future Barnes.  Some day we will cherish the collection the way people cherish the Barnes.  If part of the price we have to pay to get there is to allow the founders to keep the collection close to their hearts (and living rooms) in the early years, that doesn’t seem like too bad a deal. Life is short, art is long."

Or, as Cohen puts it in the last paragraph of the new story:

"Several well-established art institutions, like the Isabella Stewart Gardner Museum in Boston, the Frick Collection in New York, the Phillips Collection in Washington and the Barnes Collection in Philadelphia, grew out of a wealthy art collector’s private purchases."

UPDATE:  Paddy Johnson says "[h]onestly, this is a good thing. The Brant Foundation, for example, is open to just about nobody most times of the year, putting into question the public good the museum serves."

"In May last year, Fayadh was sentenced to four years in prison and 800 lashes. But on 17 November, another judge in the court of Abha in southern Saudi Arabia ruled that Fayadh be executed for apostasy."

The Art Newspaper:  Art world rallies around artist sentenced to death in Saudi Arabia.

"Masked bandits broke into one of Verona’s most important museums and stole 17 paintings."

Story here.

Freeport News

1.  Mostafa Heddaya:  Are freeports "a disaster waiting to happen?"  Well, they're storage facilities, so the same risks that apply to other storage facilities apply to them too.

2.  Artnet:  Swiss parliament approves stricter regulations for freeports and customs warehouses yesterday -- including a six month limit.

File under: judges don't like, and don't get, VARA

Nicholas O'Donnell spots a "muddled" VARA ruling out of California.  See his discussion here. You can read the decision here.

Motion to dismiss in the monkey selfie lawsuit

Slate's Jordan Weismann has it here.  He says "the gist of the motion ... is pretty simple: Under 9th Circuit precedent, animals ... only have standing to sue when Congress explicitly says they do. Copyright laws don't mention any right of action for monkeys. Therefore, this case is for the birds."  Prawfblawg's Howard Wasserman says "the motion argues both lack of standing and failure to state a claim, both based on the argument that copyright protections do not extend to non-human animals. As I argued in [a] prior post, I believe that under Lexmark the proper basis for dismissing is failure to state a claim."  More from the Washington Post here.  Background here.

Ulay v. Marina

Noah Charney has a good write-up in The Guardian.  It's a breach of contract claim ("With the encouragement of Abramović’s gallerist Sean Kelly, a contract was drawn up to manage their joint oeuvre"), and it's being heard in Amsterdam.

"Fukunaga's borrowing appears to be another episode of 'It's not stealing if I can afford the potential legal bills.'" (UPDATED)

"That's the kind of image appropriation that happens when bigger and more powerful members of the entertainment industry—like Fukunaga and Netflix—rationalize the pilfering of original ideas from their poorer fellow artists with little or no credit and zero remuneration."

Christian Viveros-Fauné on the strong similarities between the new movie Beasts of No Nation and the work of Irish artist Richard Mosse.

UPDATE:  Some thoughts from Brian Frye.

"Everyone lives in fear right now in the art market. No one will authenticate anything."

More on Richard Polsky's new Warhol authentication service.

Rent I Pay

Is the single-venue gallery on the road to extinction?  Judd Tully considers the question here.  Felix Salmon says the answer is no and the proof is in the state of the rental market in Chelsea.

"[I]n the face of lawsuits from disgruntled collectors ..., most foundations shuttered their authentication committees."

"However, ArtNews reports that well-known Warhol expert Richard Polsky has launched a new one-man Warhol authentication service. Only $2,500 per! While Polsky can probably avoid at least some of the conflict of interest allegations that hounded the Warhol Foundation's late Art Authentication Board, I anticipate other potential issues. For example, it seems that Polsky has a rather strong incentive to lean in favor of finding that works are authentic. Curiously, his authentication service only requires the submission of digital photos. Perhaps he plans to look at the actual works in question if he is uncertain? But then again, in the ArtNews interview, Polsky repeatedly claims a 'sixth sense' as to whether putative Warhol's are authentic. With great power comes great responsibility? I'm not sure I trust Polsky's spider-sense as much as he does."

Brian Frye on art forgery and its discontents.

"Right now, the New York State Sales and Use Tax is the biggest promoter of my business that I can have."

Fritz Dietl On His New Delaware Freeport.

New Warhol Authentication Service

Run by Richard Polsky.

"We just decided to finally give collectors and investors the ability to do this here in the United States."

An art freeport grows in Delaware.

Answer: not so much

Laura Gilbert at Artsy:  Have Multi-Million-Dollar Forgery Scandals Changed the Art Market for Good?

How to get a loan at 1%

Start by having an art collection like Steve Wynn's.  BloombergBusiness story here.

Is this a VARA violation?

Cosby mural in D.C. defaced.

These sorts of attempts at censorship typically backfire

Ai Weiwei swamped by Lego donation offers after ban on use for "'political" artwork.

What a Time to Be Alive

You may have seen the video for the rapper Drake’s latest single, “Hotline Bling,” which is clearly “inspired by” the work of my client James Turrell.  Turrell has issued the following statement in response:

“While I am truly flattered to learn that Drake f*cks with me, I nevertheless wish to make clear that neither I nor any of my woes was involved in any way in the making of the Hotline Bling video.”

"Authenticated as original"

I'm quoted in this Observer story on a mystery Basquiat in Nashville.

Deaccessioning in the NYT Ethicist Column

Sort of.

(And last one this morning, I promise.)

A few weeks ago, the great Kwame Anthony Appiah fielded a question from a librarian at a "large public university" who was upset about the library's plan to deaccession a bunch of books.

He starts his answer by declaring that "public institutions are a public trust."  Uh oh.

But it's not clear exactly what he has in mind by that.  He seems to suggest what it means is that "any citizen ... has the right to ask whether those who run them are carrying out the purposes for which they've been chartered."  Okay, if that's all it means, I can go along with that.

He then goes on to say:  "But the decisions you’re talking about don’t sound morally wrong. They reflect a judgment at odds with your own; they don’t reflect corruption, abuse or a total abandonment of the institution’s pur­poses."

I can really sign on to that.  That could work as a standard for evaluating any sale by a museum. Get rid of the silly "use of proceeds" distinction.  Instead, ask:  does this sale reflect corruption, abuse, or an abandonment of the institution's purposes?  (I'm willing to give up "total" in Appiah's formulation.)  If the answer is yes, then go ahead and raise hell.  If the answer is no, then it's just "a judgment at odds with your own."  Relax.

(Also, in response to a separate question in the same column, Appiah has some interesting things to say that bear on the question of donor intent.  He mentions the case of Franz Kafka, who had "asked his friend and executor Max Brod to destroy all his papers and manuscripts when he died, and we’re glad Brod didn’t. Yet there’s more to the story. Brod had warned Kafka that he would never do so — this, too, was a solemn vow — and believed that if Kafka really wanted this bonfire, he would have appointed another executor. That matters, too."  I agree, and have always felt that donor intent is a much more complex thing than the anti-deaccessionists like to pretend.)

"This is my painting. This is not a painting of Spain. This is not a national treasure, and I can do what I want with this painting."

Do private individuals hold works in the public trust?  If not, why not?  What's the difference between that and, say, a private college?

Are these European national cultural property laws just a natural extension of public trust/anti-deaccessioning thinking here?  Some related musings here.

Don't tell Detroit

Sticking with the theme, the Mayor of Venice is proposing to sell off some of the city's artwork -- including masterpieces by Klimt and Chagall -- to pay down municipal debt.  Repulsive?

Our research staff is currently checking to see if Venice is a member of the AAMD.

Tell me about the public trust (hundreds of donated antiques edition)

Continuing the theme this morning, the New York Times reports that "in the last few weeks, [the Met] has sold paintings and sculptures at Doyle New York auction house" and on Oct. 27 Christie's will offer "hundreds of donated antiques" for sale.

I like how, when it's an AAMD-approved sale, we hear in the first sentence that the works are being brought "out of storage."  (Why, it's like they're being "liberated"!)

We never seem to hear about their storage status when it's a sale the Deaccession Police don't like.

In the same way ...

... no one thinks it's unethical for St. Charles Borromeo Seminary near Philadelphia to sell off part of its art and book collections.  (In the same way as this, I mean.)

Again:  it's not the non-profit status.

So what is it?

"There’s a strong feeling that as board members we are responsible for protecting the club and ensuring its success in the future. The most important way to do that was through a sale."

This is a couple weeks old, but I didn't want to let it pass without mention.  The Washington Post reports that "the National Press Club and its affiliated journalism institute will sell a Norman Rockwell painting the artist gave them more than 50 years ago and bank the estimated $10- to $15-million windfall to support future programs."

You probably haven't heard anything about this, and with good reason.  This is, and ought to be, utterly noncontroversial.  As the Press Club's President says, the sale will allow them "to expand our mission and do even more for the profession of journalism and press freedom."

Now, if you're a member of the Deaccession Police, or even just a sympathizer, you may be saying:  "Who cares?  What's your point?  The National Press Club is not a museum?  What do they have to do with anything?"

The answer is that the way this connects to the general deaccessioning debate is that it shows that non-profit status alone (and the tax benefits that come with it) is not enough to give rise to a public trust.  (I don't know what kind of entity the National Press Club is exactly, but I believe "its affiliated journalism institute" is a 501(c)(3).)  One of the questions I've asked around here (repeatedly) is how do museums come to hold their work in the public trust?  Literally, how does it happen?  One answer that's sometimes given is that, as a result of their non-profit status, "we" have a claim on the works.  But the Press Club example shows that isn't right.  Non-profit status alone doesn't get you there.

I submit to you that there are lots of other institutions -- colleges and universities chief among them -- who are more like the Press Club than museums:  they have larger missions to serve, and if they conclude that selling a work of art will further that larger mission, they should be free to do so.

I would also submit to you that museums are more like the Press Club than what the Deaccession Police imagine museums to be.  They too have larger missions, and if the sale of work is in furtherance of that mission, why be so touchy about it?

This is obviously huge

A victory for Google in the Second Circuit on its book scanning project.  Fair use.  Leval.  Transformativeness.  Major implications for all sorts of copyright issues.  You can read it here.  More to come later.

"An objective way of marking art would be particularly attractive at a time when reliance on subjective expertise, or connoisseurship, and often-incomplete provenance, seems to be waning."

Is synthetic DNA the answer to the problem of art forgery?

"It shows how even after decades it is possible for treasures such as this to be returned to their rightful homes."

The Art Newspaper:  French national treasure recovered after 32 years.

Also going to trial in January

Shepard Fairey, in Detroit.

"Plaintiffs have offered ample circumstantial evidence demonstrating that Freedman acted with fraudulent intent and understood that the Rosales Paintings were not authentic."

"This evidence includes, inter alia, the fabricated stories of provenance, which shifted dramatically over time; the efforts to concoct a 'cover story' with Rosales; Rosales’ willingness to repeatedly sell purported 'masterworks' to Knoedler for a fraction of their value on the open market; Rosales’ refusal to share any meaningful information about the purported source of the paintings, and her unwillingness to sign a statement representing that the paintings were authentic; Rosales’ inconsistent accounts of the size and scope of Mr. X’s collection, which grew over time to include more than thirty hitherto undiscovered 'masterworks'; the absence of any documentation concerning the paintings; the issues raised about the Diebenkorns Rosales brought to Knoedler early on; and the October 2003 IFAR Report – which Freedman reviewed – and which rejected the concocted provenance tale concerning Ossorio and raised serious concerns about the authenticity of the 'Green Pollock' purchased by Jack Levy."

The judge in the Knoedler lawsuits issued his written decision on the summary judgment motions last week.  Graham Bowley has a good write-up in the Times here.  The Art Market Monitor has posted the decision here.  Trial is set for January.

Lots of interest within the decision, including the way the court distinguishes (in footnote 27) the ACA Galleries case from a couple years ago, where summary judgment was granted because the purchaser "had the opportunity to fully investigate the authenticity of the painting but failed to do so."  Judge Gardephe says:

"The facts here are not comparable.  Plaintiffs do not not operate art galleries, and they are not in the business of buying and selling works of art.  Instead, they are consumers who relied on representations made by one of the most reputable and most established art galleries in New York City."

"At the time of the shooting, Ramos was with a group of 10 artists working on the Oakland Super Heroes Mural Project."

"The series of six murals is being produced by ArtEsteem, the art-and-literacy arm of Attitudinal Healing Connection, a West Oakland group that seeks to stop violence by inspiring people with art and education."

An artist was shot and killed while working on site in Oakland.

"Maldonado was imprisoned at the end of last year for reportedly showing 'disrespect of the leaders of the revolution'"

artnet news:  Amnesty International Calls for Release of Cuban Street Artist.

"Once you know the story, his empty frames become a lot less empty than they appear."

Noah Charney on a piece currently installed on the High Line that deals with "the most frequently stolen artwork in history" -- the Ghent Altarpiece.

"The police said they were treating it as a suspicious death."

NYT:  Art Thief's Body Found in London Canal.

Daniel Mendelsohn tweets:  "'Suspicious'? What makes them think *that*?!"

Settlement in the Tuymans copyright suit

Gareth Harris has the story in The Art Newspaper.  Background here.

"The more important question is whether there’s a rational case for any prewar creative work to still be under copyright."

"The answer is no."

Economist Tim Harford on copyright incentives.

Can you hear me now?

NYT:  Ai Weiwei Returns to Beijing to Find Listening Devices in His Studio and Home.

"Twenty-five years ago this month, a Cincinnati jury wrote an exclamation point into the story of the culture wars that were raging through art museums and academia." (UPDATED)

One of the photos involved in the Mapplethorpe obscenity trial is being sold at Sotheby's this week, "the first time in 23 years that any of the 15 prints from the edition have come up for public sale."

UPDATE:  Sold, for $478,000.

Big news: summary judgment denied in Knoedler lawsuits

Laura Gilbert has the story in The Art Newspaper.

"But the most curious aspect of deaccessioning norms is their incoherence."

Brian Frye has a really interesting post on deaccessioning over at the Nonprofit Law Prof Blog.  He has some very generous things to say about my writings on the subject, building up to the following point:

"As any economist knows, incentives matter. So what are the incentives for deaccessioning norms? The art market depends on scarcity. For most works of authorship, scarcity is ensured by copyright. But the art world is unusual in that the scarcity of artworks is ensured by the fact that they are unique or artificially limited objects. In other words, the value of artworks is maintained by the fact that there is a limited number of works on the market. At least in part because a vast number of artworks are in the collection of museums, which are largely prevented from selling those works by deaccessioning norms. How do museums obtain those works? Often by donation, typically from the very people who buy and sell those works for profit. The people who donate works to museums have a vested interest in ensuring that donated works stay out of the market, in order to ensure scarcity."

What culture? What public?

I contributed to an online debate at the website of the Colección Cisneros on the question "Does the public have a right to culture?"  Sergio Munoz Sarmiento kicks off the discussion here.  My response is here.

"The underlying agenda is to bully us until we move out."

"But that is not going to happen."

NYT:  Artists Space Gallery Suspends Shows in Landlord Dispute.

More monkey business (UPDATED)

Apparently a lawsuit has been filed over the famous monkey selfie ... on behalf of the monkey.  I kid you not.  Slate's Jordan Weissmann gets this one right, I think:

"First, it's obvious that copyright is a sideshow here. The lawsuit is part of a thus-far-unsuccessful line of 'animal personhood' cases, which have tried to claim that various fauna deserve rights similar to homo sapiens. These are, suffice to say, a bit controversial, seeing as they would upend everything from scientific testing on animals to, possibly, the existence of zoos.  ...  Even if you are the sort who believes that animals should be entitled to some human rights, however, extending that idea to intellectual property law is patently idiotic. Copyrights exist in order to encourage more artists, writers, and musicians to create new work by making sure they can earn money off of their labor. ... Giving a macaque a copyright, meanwhile, does not promote jack. You cannot incentivize a monkey to spend more time behind a camera by dangling out the promise of financial compensation. ... OK. So, PETA filed a silly lawsuit. In other news, it was warm in Florida last week, and Starbucks is doing a brisk business in pumpkin spice lattes. The reason this suit is particularly galling, though, is that, in this case, the group has sued not a massive corporation with a significant legal budget, but a random nature photographer, who will likely have to drag himself into court and quite possibly spend some of his own money to defend this ludicrous claim, at least until a judge has the decent sense to dismiss it."

UPDATE:  Howard Wasserman at PrawfsBlawg:  "The lawsuit raises an interesting (although I believe easy) question of statutory standing and the zone of interests of the copyright laws--namely, whether a non-human enjoys rights under the statute. This article explains why the answer should be no."

"A French appeals court on Wednesday dismissed a lawsuit by the descendants of the art collector Peggy Guggenheim ..."

". . . who had sought to gain more control over how her Venice museum is managed by the Solomon R. Guggenheim Foundation in New York."

Good question

Nate Harrison:  What Is Transformative?

"In the high-stakes art world, a fear of lawsuits is putting a muzzle on authenticators."

I'm quoted in this Fortune magazine story on authentication.

Franz West Archive Sues Gagosian

Eileen Kinsella has the story here.  In a nutshell, there are apparently two entities -- the Archiv Franz West and another private foundation he created near the end of his life -- who are battling it out in the Austrian courts over ownership of certain copyrights.  Gagosian seems to be caught in the middle.  The judge here in New York has denied the Archive's request for a TRO blocking the gallery's current West show in its Madison Avenue space.

Breaking News: Your art dealer is not your friend

Via Clancco.

More on the Effective Altruism Movement

In the London Review of Books.

"We've also hired a lawyer to sue Shin Gallery for damages to the value of our condominiums. See you in a Court of Law."

A neighbor -- who "paid $1.3 million for my condo at 50 Orchard Street" -- is threatening to sue a Lower East Side Gallery because of the fake massage parlor they've installed at the gallery (until November). Gothamist's Lauren Evans brings the mockery.

$500m Guarantee

From Sotheby's to Alfred Taubman's estate.

Is the effective altruism movement bad for the arts? (UPDATED)

Discussed here.

UPDATE:  Related thoughts from two of the sharpest guys around:  Adrian Ellis here, and Felix Salmon here.

Kenneth Rogoff on the art market and capital flight from China

Here.  An opposing view here.

Tell me again about the public trust (sing louder edition)

ARTnews reports that Christie’s will be auctioning off more than 200 works from the Met's collection of English furniture and decorative arts next month.

That's more than 200 works that, having fallen under the aegis of a museum, were held in the public trust, to be accessible to present and future generations -- except now, it having been determined that they "would sing louder and better in someone’s home," are being "liberated."  They are no longer part of the public trust.  Voila.

You may also be concerned that future potential donors of English furniture and decorative arts might say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?  But don't worry:  they will understand that, unlike the more than 200 works the museum is selling now, the works they are thinking of donating clearly will sing louder and better in the museum.  It's easy to tell which works sing louder in which settings.  And better.  It's easy to tell if the work you are thinking of donating will sing better at the museum.  No uncertainty about that at all.  So there's nothing to worry about.  It's all good.

Held in the public trust ...

. . . at least until the expiration date.

The Museum of Food and Drink is coming to Brooklyn.

National Cultural Heritage Law Moot Court Competition

At DePaul.  Details here.

"One of the things we're trying to do is communicate to all potential taggers … that we do take this seriously."

Shepard Fairey will go to trial in Detroit.

Held in the Public Flush

A toilet museum is opening in Japan.

"The complaint filed by Simchowitz in Central California Federal Court is eye-opening for its combination of candor, hubris, and delusion."

Greg Allen on the Stefan Simchowitz lawsuit I mentioned a couple days ago.  The complaint is here.  Some thoughts from Simchowitz on how he operates here.

"When is imitation in art flattery, and when is it theft?"

Interesting piece in The Economist on the Kapoor-China story.

"I have been sacked."

The NYT:   "A significant trove of modern Russian art, preserved not least by its obscure location, was engulfed in controversy on Wednesday after its longstanding director was summarily dismissed on accusations of forgery and theft."

Simchowitz Suit

"Los Angeles dealer and artist agent Stefan Simchowitz and Dublin dealer Jonathan Ellis King have filed suit against the Ghanaian artist Ibrahim Mahama."

Simchowitz was the subject of a NY Times Magazine story last year.

Partly Cloudy

My friend Alfred Steiner -- who was an IP lawyer at Morrison & Foerster and is now a full-time artist -- writes in with his take on Cloud Gate-gate:

"I'd like to propose a potential solution to Donn's query whether what appears to be a copy of Anish Kapoor's famous Cloud Gate should be regarded as actionable piracy or permissible appropriation. In an article I wrote for Landslide, the American Bar Association's intellectual property publication, I argued that '[a]nyone should be able to use preexisting material to make anything, so long as he or she makes only one copy and is not engaging in blatant piracy.' I translated that proposition into more precise copyright language as follows:

"Reproducing and preparing derivative works based upon a copyrighted work for the purpose of creating, distributing, publicly displaying, or publicly performing a unique work constitutes fair use unless it would be reasonable to expect that someone would buy the unique work (or pay to see it displayed or performed) instead of buying an authorized copy of the corresponding copyrighted work or an authorized derivative work based upon such work (or paying to see it displayed or performed), assuming there is a well- established market for such derivative works (e.g., a movie adaptation of a novel).

"How does this apply to the allegedly infringing sculpture (the 'Oil Drop')?

"Assuming that there is only one Oil Drop and that it is a copy of Cloud Gate (more on that below), the pertinent question here is whether it would be reasonable to expect that someone would buy the Oil Drop instead of buying an authorized copy of Cloud Gate. And it seems pretty clear to me that many people in the position of buying a large, elaborately produced public sculpture might opt to purchase the Oil Drop instead of an authorized copy of Cloud Gate. Developers and park planners want something that viewers will come to see, and they know that most viewers will care less about who made the sculpture than how huge and shiny it is.

"So I would find infringement here. Or would I? Well, I would assuming, as I did above, that the Oil Drop is a copy of Cloud Gate. But frankly I can't be sure based on the photographs I've seen online. As Ma Jun, the section chief of the local tourism bureau suggests, Kapoor cannot expect to prevent the production of all round, shiny sculptures. So it is essential that we know how similar the two sculptures are. In other words, if the blob of Oil Drop is shaped somewhat differently than the Cloud Gate blob, I might not find infringement. While I believe Kapoor's work warrants copyright, I think the copyright is relatively narrow, and should not extend to all round, shiny blob sculptures.

"If we ask the same question of Richard Prince's appropriation of the Suicide Girl's Instagram posts, I think we get a different result. I don't think someone who wants to buy a photograph from the Suicide Girls would be likely to want a canvas print in Instagram format, with the associated comments including those of Prince himself. Prince's added comments, while visually negligible, change the meaning of the work significantly. Among other things, the Suicide Girls represent the idea that women should be able to control the way their sexuality is depicted. A male artist appropriating the images with his own added commentary is anathema. Of course, one could argue that someone who just wants a naked picture of a punk rock girl could reasonably be expected to buy a Prince instead (if we ignore the exorbitant price differential), and that argument is not without merit. But in my mind the balance weighs in favor of Prince."

"If there's a moral to this legal incident, it's this: know the terms of your licensing before you agree to use it."

Via Techdirt, an unsuccessful lawsuit by a photographer who posted a photo under a Creative Commons license ... and then regretted it.  Story here.  Decision here.

"Her return caps a fraught eight months with Bruguera held in virtual detention in Cuba "

Tania Bruguera is back in the U.S.

What if they called it appropriation art? (UPDATED)

So there's a new public artwork in China that seems to be a blatant ripoff of Anish Kapoor's famous "Cloud Gate" sculpture in Chicago.  It raises lots of interesting art law questions, one of which is captured in the title of this post:  what if we think of this as a work of appropriation art?  Remember the open letter Patrick Cariou wrote regarding Richard Prince's use of his work:

"I urge you to stand by my side and fight plagiarism. I feel compelled to ask what other businesses and innovators ... have had their copyrighted material stolen in a similar way? ... Creativity in all walks of life is hard won. It is incorrect to accept that we should allow for it to be undermined or stolen and therefore give it little or no value. ... We cannot let this happen."

Wait, that wasn't Cariou at all.  That was Kapoor, in a letter to Chicago Mayor Rahm Emanuel, who had responded to the news thusly:  "Imitation is the greatest form of flattery is what I would say. And if you want to see original artwork ... like the Bean, you come to Chicago."

So the first question about the case (and I hope to have more) is:  how do we distinguish this from other cases of appropriation, where the conventional wisdom seems to run in the other direction? Do the SuicideGirls count as other innovators who have had their copyrighted material stolen in a similar way?  Is it correct to accept that we should allow their creativity to be stolen?  Can we let that happen?

I'm not suggesting the two cases are the same.  I'm asking how we account for the difference. What is the theory, the principle, that makes the one case okay and the other not?

UPDATE:  Here's one attempt at an answer, from Nicholas O'Donnell.

"Rising auction prices for paintings in recent years have reinforced the widespread belief that art markets are irrational and arbitrary."

"This column discusses new evidence that decisively rejects this belief."

Marion True ... (UPDATED)

... is back.

UPDATE:  Some thoughts from Derek Fincham at the Illicit Cultural Property Blog.

"The robbers removed the bust from its pedestal, slipped it into a paper bag, and walked off."

artnet news:  $300,000 Rodin Bust Stolen From Danish Museum in Broad Daylight.

"[I]t’s hard to imagine how anyone can look at a piece of art like that and just want to paint it out." (UPDATED)

VARA suit in Oakland.

UPDATE:  Here's another, similar case in Santa Cruz.  The initial claim was for $375,000.  They settled for $30,000 and an apology.

"I think it’s a nitpicky thing to dwell on. The tax doesn’t even begin to compare to the value of the painting I’m going to give away."

That's Elaine Wynn, quoted in this article by Jori Finkel this weekend, on the tax loophole she "inadvertently called attention to" last year.

"Still, Mr. de Blasio acknowledged that reining in the desnudas was complicated by the protections afforded to artistic expression by the First Amendment."

Trouble in Times Square.

"The film suggests that his deception was enabled by the skewed economic incentives of the art world, where the authentication of a painting has the potential to reap financial rewards."

Well, yeah.  New documentary out about the art forger Beltracchi.  New York Times review here.

Speaking of mischief ...

... while I was away last week, the authorities cracked the biggest case of art-related mischief of them all:  the Gardner Heist.

Okay, maybe they didn't, but they did release, after 25 years, some video from the night before the theft, for whatever that's worth.

Relatedly, at Slate.com:  Why Is Stolen Art So Hard to Find?

"This is the latest in a still small string of cases in which graffiti artists are asserting their copyright in US courts." (UPDATED)

Laura Gilbert in The Art Newspaper:  Brooklyn street artist sues over Katy Perry's graffitied Met gala gown.

Who knew that street artists were such strong believers in property rights?

UPDATE:  "Outlaws asserting their property rights."

"By the end of 'The Art of Forgery,' you realize that forgeries are everywhere."

Mischief everywhere!

"Once you’ve been clued in to the world of art forgery and recovered from the excitement of a good caper, you’re left with an itch in the back of your brain. You start thinking about all of the incredible works you’ve seen in museums around the world, and you can’t help but ask yourself, 'But was it real?'"

"Gasiunasen has two pending lawsuits related to monetary disputes over consigned art."

More (alleged) financial mischief:  Former Palm Beach art dealer sued.

"Not only has Chelsea gallery Hasted Kraeutler folded amid rumors of financial mischief ..."

". . . there is now a lawsuit brought by John A. Kraeulter against the gallery and others for $522,000."

"In a Twitter post, Mooney asked 'Do we have Mr. Prince's permission to sell these prints? We have the same permission from him that he had from us ;)'"

"Naturally, Prince re-tweeted that post."

Held in the public trust (UPDATED)

"A Picasso worth $[27.4 million] and considered a cultural treasure by Spanish authorities who had barred it from being exported has been seized from a boat docked at Corsica, according to French authorities."

Related developments here.

UPDATE:  More here on the proposed cultural property law in Germany.  Derek Fincham thinks the piece "seems alarmist to say the least."

"The ministry said it had written to Ai 'apologizing for the inconvenience caused.'"

The AP:  UK reverses stance on Ai Weiwei visa, grants Chinese artist 6-month stay.

Not an authentic authentication issue

Been meaning to comment on the recent hubbub about Gerhard Richter deciding to exclude certain early works from his forthcoming catalogue raisonne.  Some people are talking about this as if it were another "authentication" issue, but I don't think that's quite right.  There's no question that these works -- made from 1962 to 1968, when he apparently "experimented with a realistic, figurative painting style" -- were painted by Richter.  There's no question of their "authenticity"; they are not fakes.  He just doesn't think they're any good, or worthy of consideration as part of his development.  It seems to me he has every right to make that judgment ... and collectors and others who like the work have every right to disagree.  Who knows -- the market may, someday, side with them.  But in any case it's not a question of authenticity.

The shouldn't charge for admission and they shouldn't sell anything ever ...

. . . and they shouldn't have anything to do with "commercialization."  Instead they should go to the Magic Money Tree and get the funding they need.  Simple as that; just ask the Deaccession Police for directions.

"A genuine Jackson Pollock painting should cost a lot more than $60,000."

The Washington Post has a review of Anthony Amore's "savvy and informative" new book on art fraud.

Tyler Cowen on Germany's proposed new "public trust" law

He notes that "so far the proposed policy is not working out well.  Collectors are rushing to take their loans off museum walls and get them out of the country, or hold them incognito."

Also:  "Apparently Gerhard Richter is a hard-core libertarian, like most other painters, because he asserted: 'No one has the right to tell me what I do with my images.'"

"A grandiose argument that imagines the existence of a unsullied ivory tower of independent and un-corruptible museums that simply has never existed in the United States"

I think it's fair to say The Art Market Monitor did not find Christopher Knight's recent piece on the "relentless commercialization" of museums that convincing.

Isn't this just what happens when you take the notion of "public trust" seriously?

Germany's culture ministry is proposing legislation that "would give regional authorities the power to designate specific artworks as protected national treasures if they are more than 50 years old and valued at more than 150,000 euros. Regional boards would then have the power to approve or deny export licenses for those works."

Bubbling Up

Peter Schjeldahl had some thoughts on the state of the art market earlier this week.

The Art Market Monitor wasn't impressed:  "It’s always sad to see a smart and perceptive writer struggle with concepts that are unfamiliar and irrelevant to his work."  Ed Winkleman had some thoughts here (check the comments too).

The Monitor also says "we’ve known the art market isn’t a bubble and won’t crash for five years now."  On that point, Tim Schneider disagrees.

I would listen to these two discuss their grocery lists ...

... so this Slate podcast between Felix Salmon and Amy Adler is self-recommending.  Art, pornography, and a really interesting discussion of Richard Prince's recent Instagram series.

I haven't really been following the Danh Vo lawsuit in Rotterdam ...

... because it's hard enough keeping up with developments under U.S. law.  But his recent proposal to collector Bert Kreuk is too good not to pass along.

Michael Heizer's "City" is now a national monument

Details here.

Greg Allen says "it's as if Heizer has out-Earthworked all the Earthwork artists with the biggest Earthwork on Earth."

The Sherlock Holmes of the Art World

Art Recovery Group is now two years old.

"The charges carry a maximum penalty of up to five years in prison, and potential fines of over $10,000."

Shepard Fairey turns himself in in Detroit.

"Ann Pellegrini, a professor of performance studies at New York University, called the case a classic example of 'performance becoming performative' ...'"

"...an act that questions 'the relationship between actor, audience and enactment.'"

Performance artist Joe Gibbons sentenced to a year in prison for his bank robbery piece.

"The return of the passport does not completely end Ms. Bruguera’s standoff with the Cuban government ..."

A good week for Tania Bruguera.

Yielding to Outrage (UPDATED)

The Museum of Fine Arts, Boston, is no longer inviting visitors to try on a replica kimono.  But they may "touch and engage with" them.

UPDATE:  More from the Boston Globe.

"A complicated system of financing in which third-party money is used by Christie’s to offset risk but not in the form of a traditional 'guarantee'"

The Art Newspaper's Charlotte Burns on third-party "partners" vs. third-party "guarantors."  (I'm quoted.)

The Art Market Monitor has some thoughts.

"Trumped by a Stifled Voice"

Holland Cotter on the Havana Biennial.  The stifled voice is Tania Bruguera's:

"As soon as she announced her intentions, the police took her into custody on charges of disrupting public order. The authorities confiscated her Cuban passport and threatened to bring her to trial. If she ventures beyond the city limits, she has been warned, she can be expelled from the country and prevented from returning. Her case has gone nowhere since."

"Proving substantial similarity is a thorny issue. It isn’t enough for her work and Starbucks’ campaign to look alike."

Wired has a piece on artist Maya Hayuk's lawsuit against Starbucks.  It's the old idea vs. expression problem once again.

More on that bill to protect art authenticators (UPDATED)

Which -- once again -- has not yet been enacted and probably won't have much of an effect if and when it does.  Anyway, the latest from artnet is here.

UPDATE:  More here from Sergio Muñoz Sarmiento.  The bottom line:  "It is doubtful the amendment in its current form will convince experts to return to the market."

Copyright karma? (UPDATED)

Technical difficulties for the "non-Hofman" rubber duck.

UPDATE:  Heh.

Apparently there's another graffiti lawsuit involving 5Pointz

Sergio Muñoz Sarmiento and Nicholas O'Donnell have you covered.  On the earlier round of litigation, see here.

"A lawsuit is brewing against Starbucks on copyright grounds."

"Brooklyn-based street artist Maya Hayuk is suing the coffee giant over a colorful new ad campaign she alleges infringes upon her jewel-toned, geometric artwork."

Noah Charney has a new book out on art forgery

Order it here.  NPR Books interviews him here.

"Just because he is a well-known artist does not take away the fact that he is also a vandal."

The NYT this morning:

"The artist Shepard Fairey is a wanted man in Detroit. Police there issued a warrant for his arrest on Friday, charging that Mr. Fairey, the street artist-who-turned-legit, had illegally tagged multiple buildings in May, causing more than $9,000 worth of damage. He is charged with two counts of malicious destruction of property, The Detroit Free Press reported, felonies 'which carry a maximum penalty of five years in jail, plus fines that could exceed $10,000.'"

"An ugly word for an ugly deed"

Fintan O'Toole has an anti-deaccessioning piece in The Irish Times, pegged to the proposed sale of paintings from the Beit collection at Russborough House in County Wicklow.

It's of course nicely written, and he takes the position that "[t]he guiding truth on this whole issue should be that laid down by Susan Taylor, president of the Association of Art Museum Directors in the US:  'The principle for us is that works of art shouldn’t be considered liquid assets to be converted into cash. They’re records of human creativity that are held in the public trust.'"

But nowhere in the piece does he mention the inconvenient fact that the Association of Art Museum Directors in the US is perfectly happy to consider works of art liquid assets and convert them into cash ... just so long as the proceeds are used to buy more art.  In that case, they somehow cease to be records of human creativity that are held in the public trust.

Look, there are two coherent positions on this whole issue.

One is the one O'Toole sketches out here:  works of art should not be converted into cash.  They are records of human creativity that are held in the public trust.  To sell them is an ugly deed.

That's a coherent position.  It needs, in my view, to reckon with the kinds of counterargument that Michael O'Hare, for example, makes against it here.  But it's not an irrational stance to take.

The other coherent position is O'Hare's:  yes, these are enormously valuable things, and generally worth holding onto, but sometimes, depending on the circumstances, the benefits of selling one may exceed the costs.  You may not agree with it, you may make a different value judgment, but it's clearly not an irrational view.

But what's not a coherent position is the one the AAMD (and the rest of art world establishment) takes -- that works of art are records of human creativity held in the public trust and cannot be converted for cash, except when the museum wants to use the proceeds for one particular purpose (out of the hundreds of possible purposes), in which event they somehow cease to be held in the public trust and suddenly can be converted into cash without controversy.

Or, put even more simply (and to sum up thousands and thousands of words I've written on this issue at the blog):  they're either held in the public trust or they're not.

And, as I've also argued repeatedly, the museums themselves, by their own actions (routinely selling off works from their collections), tell us the answer is they're not.

"What Happens to Stolen Art After a Heist?"

James Tarmy takes us through it at BloombergBusiness.

"The power of Richard Prince’s art is that he has led us to this conversation in a way that mere words rarely can."

Interesting take from NYU's Chris Sprigman on the latest Richard Prince controversy.

More on 1031 exchanges of art

Brooklyn Law's Bradley Borden has a good summary here.  The punchline:

"Owners of art and collectibles should ... be concerned, however, because many such transactions may not satisfy the technical requirements of the tax law. Owners of art and collectibles must tread carefully when claiming tax-free treatment on the transfer of such property. The law governing tax-free exchanges of art and collectibles is a veritable minefield, and the slightest foot-fault with such transactions could result in significant amounts of tax."

For a longer version from Borden, see here.

For a recent discussion of the issue, see here.

"It's not a crime; it's artwork…He's an intellectual."

artnet:  Former MIT Professor Joseph Gibbons Pleads Guilty to Art Project Heist.

Hold that sigh of relief (UPDATED 2X)

Hyperallergic had a report a couple days ago suggesting that the "much-anticipated legislation" protecting art authenticators from frivolous lawsuits had passed into law.  Not quite yet.  What happened was it passed in the State Senate; it still needs to be voted on in the State Assembly, and that probably won't happen until next year.

I'm on record as a skeptic of whether this law will make as much of a difference as people seem to think.

UPDATE:  The story has been updated to now say that, "[t]hough the bill has cleared one major hurdle with the State Senate’s approval, it still needs to be voted on by the State Assembly before it passes into law."

UPDATE 2:  Nicholas O'Donnell provides even more reasons to be skeptical that the law will have as much impact as advertised:  "When I first saw the news it seemed like a minor development, but then I went and read the bill.  It stripped out a material aspect of the bill first proposed last year that would have required plaintiffs seeking damages against authenticators to prove their case by clear and convincing evidence, a daunting standard.  Heightened pleading requirements are still contained within the bill, but the attorneys’ fees provision has also been watered down, with such an award now discretionary rather than mandatory."

There's no mention of the D-word in the article ...

... but the Washington Post has a story about how the University of Virginia's School of Architecture funded its doctoral program by selling some art.

Imagine how upset the Deaccession Police will be when they find out about this.  So repulsive and unethical.

But seriously:  no one can actually have a problem with this ... right?

"This weekend artist Tania Bruguera was arrested once again in Cuba, along with dozens of other activists, and was manhandled by the police."

The latest, from Jillian Steinhauer at Hyperallergic.

Caught in the crossfire

The Art Newspaper's Corinna Kirsch on art teachers and Title IX (which has been in the news a lot lately).

Hoarders

Bloomberg columnist Virginia Postrel takes notice of Michael O'Hare's recent "iconoclastic" article calling for "more, better engagement with art."  She's in favor, and points out how the Deaccession Police are not:

"Museums do sometimes sell works from their collection. It’s called 'deaccessioning.' But they can’t use the money to reduce admissions fees, improve educational programs, pay guards for extended hours, or install benches or better lighting -- no matter how much these investments might enhance their visitors’ experience. If they want to stay in the art museum club, they can only sell art to buy more art.

"Any other use violates the 'ethics' code of the Association of Art Museum Directors, a group that stringently enforces its art-hoarding cartel. Museums that break the rules lose their accreditation and can’t borrow from, lend to, or otherwise cooperate with other museums."

And she ends with some praise for Eli Broad's soon-to-open new museum:

"Unlike LACMA or the Museum of Contemporary Art across the street, when the Broad museum opens this fall it won’t charge admission. It will also house a 'lending library' of artworks available to other museums, including small ones. To fulfill O’Hare’s vision of 'more, better engagement with art,' maybe you have to start from scratch."

Read the whole thing.  This is not the first time Postrel has waded into the Deaccession Debate.

O'Hare has a short response here.

More on insurance for conceptual art

Here.  Previous post here.

"Museums are really not set up to represent artists"

A great piece in The Art Newspaper by Julia Halperin on artist Scott Burton, who left his entire estate to the Museum of Modern Art:  MoMA struggles to fulfil sculptor's last wishes.

"'It's not his duck,' Samborski insists. 'It's just another large inflatable duck.'"

Philadelphia Magazine has a story about the organizers of the "Tall Ships Festival" there ripping off artist Florentijn Hofman.  The IP lawyer quoted at the end is probably right that Hofman can't claim copyright in the idea of a very large rubber duck, but it's still not cool (technical legal term).

"To be clear, I'm glad that the rules in the art world are loose enough that we don't have the same restrictions as say the music industry where you can't sample like three beats of a song before you're infringing on somebody else's copyright."

An interview with Paddy Johnson re Richard Prince and Instagram.  (I make a brief appearance.)

"The harassment of Ms. Bruguera ... poisons the air."

Holland Cotter on the Havana Biennial.

The New York Times catches up to the BREAKING NEWS I mentioned last week that Richard Prince is an appropriation artist (UPDATED)

Their story is pegged to the development that one of the appropriatees -- Selena Mooney, who founded the website SuicideGirls -- has started selling her appropriated picture ... for $90, as opposed to the $90,000 Prince gets.

NYU's Chris Sprigman tweets:  "I condemn Suicide Girls for making money from an Instagram that was worthless until Richard Prince made it valuable. Shame on them."

That's funny, but isn't it also true?  Doesn't the price disparity between the two identical images tell us something important about what's going on?  Doesn't it make the simple "theft" model look a little silly?

UPDATE:  Scott Indrisek gets it too:  "Can't believe [Richard Prince] stole my Instagram photo just mere seconds before I was about to print it out and sell it for $90,000."

"[T]he detention comes at an uncomfortable moment for the Cuban government ..."

". . . just as the art world has descended on the 12th Havana Biennial, an event that has drawn a jet-setting group of international curators, artists and collectors to the Cuban capital for exhibitions, parties and private studio tours."

Tania Bruguera detained again.

"The counter-argument is that a good chef is rewarded not with tips but with a better job in a richer kitchen ..." (UPDATED)

". . . but our moral intuition tells us that he deserves one, especially if his dish is still mysteriously delicious years after he first served it."

The New Yorker's Adam Gopnik has a riff on art and money pegged to last week's $179 million Picasso sale, in the course of which he mentions Jerrold Nadler's campaign for resale royalties for artists.  He summarizes the issue nicely:

"It’s a complex issue. Copyright law is called copyright law because it is meant to be concerned with the problem of copies. Since books and records can be copied freely (as, indeed, they are, online), we impose a royalty on the copyist in order to insure that the originator isn’t cheated for his labor. The deal that visual artists typically make with their buyers is different: the artist sells the original and reaps the benefit. The logic here is that if the owner of a Jeff Koons sells it at auction for a profit, that will be reflected in the next Koons that Jeff Koons makes; the 'royalty' that he reaps is the increase in the value of his next work of art, sold to the next individual buyer."

But he comes out in favor of the idea:

"Yet the idea of paying royalties to artists probably still resonates emotionally with most of us. That’s because what distinguishes a work of visual art is ... that it is made by a singular hand (or, at any rate, comes from a singular vision), whose claim on it lingers, even after it changes owners. A work by Chuck Close can be a wall decoration, an investment, a legacy, and a tax deduction, but, before it is any of these, it is, and remains, a Chuck Close. ... Essentially, what artists are asking for, through Nadler’s bill, is little more than the courtesy of a tip."

I think he refers to it as a tip because, under Nadler's version, it's capped at $35,000.  But that, I think, is the problem with Nadler's approach:  our moral intuition is strongest when the increase in value is greatest -- where the price is 100 times what the artist was paid for it, or more -- and, in those cases, where the collector has made ten-, twenty-, thirty-million dollars, a $35,000 "tip" does little to balance out the equities of the situation.

UPDATE:  Michael Rushton is not convinced by Gopnik's argument:  "'Moral intuition' is evasive."

BREAKING NEWS: Richard Prince is an appropriation artist

Gothamist seems pissed about it.

"Since her passport was confiscated, the artist has remained in Cuba in what she describes as 'legal limbo' ..."

". . . while she waits for the authorities to schedule a hearing to decide whether she will be charged and put on trial for attempting to incite a public disturbance with her December performance."

The latest on Tania Bruguera.

"Today’s accusations call the whole affair into question—or plunge it deeper into mystery"

The Art Market Monitor on the latest twist in the alleged theft of certain works from Picasso's stepdaughter.

On what can appear to the public to be confusing or contradictory rules concerning deaccessioning

So, as mentioned in the Mark Stryker article I linked to in the update to this post yesterday, the Detroit Institute has apparently walked back the claim that it plans to sell a Van Gogh.  But the larger point remains: the D.I.A. will, at some point, resume the ordinary, common, nothing-touchy-about, totally-non-controversial-within-the-museum-world practice of routinely selling works from the collection and using the proceeds to buy different art.

The question is:  is that consistent with what they told the world during the bankruptcy proceeding, in their (highly successful) campaign to keep the art from the reach of creditors?

In fairness to museum director Graham Beal, as he pointed out to Nicholas O'Donnell earlier this week, he was clear in his public statements that he was not arguing for a categorical ban on all sales; his position was just that the museum would not breach "the most fundamental tenet of the art museum world: that art in the collection can only be sold to acquire more (and better) art."

On the other hand, there were other statements, at least as filtered through the media, where the message was more muddled.  Here, for example, is the New York Times reporting that "[t]he museum’s director, Graham W. J. Beal, has said that any sale of art will most likely lead to the museum’s dissolution."  Now, presumably he meant any sale of art other than those where the proceeds are used to buy other art, but you can understand how some people might have missed that.  And here is another example from the Times of "museum officials" warning "if any pieces are sold the museum will no longer be able to attract donors and will immediately lose a crucial stream of tax revenue voted in last year by three Michigan counties."  In the next paragraph, Beal himself is quoted as saying "such a loss of operating revenue and donations...would almost certainly lead to what he called a 'nonprofit controlled liquidation' of the museum."  Now again, what those museum officials must have meant is that if any pieces are sold and the proceeds are not used to buy art, the museum will no longer be able to attract donors etc., almost certainly leading to a nonprofit controlled liquidation, but you can forgive someone for not catching that nuance.

But let's leave that to the side and grant that Beal and other opponents of sale during the bankruptcy were perfectly consistent:  they never said that all sales were prohibited; they simply said that sales other than to buy more art were prohibited.

The larger issue, though (and I've been banging on this for years here), is that the people who hold that view fail to see that the same reasons they give for why art can't be sold for non-art buying purposes apply with equal force to sales to buy more art.

You say art can't be sold to pay operating expenses because it's held in the public trust for future generations?

Well, that applies to works sold to buy more art too.  Isn't this Van Gogh held in the public trust for future generations?

You say art can't be sold because it will discourage people from donating art in the future?

Well, that applies to works sold to buy more art too.  What's the basis for the assumption that donors don't mind it when you sell off the art they donated as long as you use the sales proceeds to buy art (different art, art that you are implicitly declaring you like better than the art they gave you)?

What defenders of the Beal view of deaccessioning are unable to do is point to a reason why sales for non-art buying purposes are wrong that does not also apply to sales for art-buying purposes.  At least I've never seen one.

It's kind of like if I called you up this morning and asked if you wanted to play tennis, and you replied no and, when I asked why, you said "Because it's the weekend."  Then, tomorrow, I happen to pass by the tennis courts and see you playing with someone else and say, "Wait a minute, I thought you don't play on the weekends?"  And you respond:  "No, Sundays are okay."

Graham Beal doesn't want works to be sold for operating expenses, or to pay creditors, or to keep from going out of business, because it's the weekend.  But he's fine with selling that Van Gogh on Sunday.

No wonder "some observers" are critical of "what can appear to the public to be confusing or contradictory rules concerning deaccessioning and the supposedly sacrosanct notion of holding work in the public trust."

One follow-up on Detroit (UPDATED)

One thing you see in the Detroit News article yesterday, and even more so in Graham Beal's response to Nicholas O'Donnell here, is the usual bait-and-switch from the museums.

On the one hand, if a museum goes to sell something to, for example, avoid going out of business, we hear:  OH MY GOD THIS IS THE WORST THING EVER THAT WORK IS HELD IN TRUST FOR FUTURE GENERATIONS WE WILL NEVER GET OVER ITS LOSS NO ONE WILL EVER DONATE WORK TO A MUSEUM EVER AGAIN IF THEY KNOW THE WORK CAN BE SOLD OFF FIRE UP THE SANCTION MACHINE.

(We saw a lot of this in Detroit, which I will return to in a later post.)

But when a museum decides to sell a Van Gogh, or a Monet, or Hopper, and use the proceeds to buy art, then we hear:  "What?  What's the big deal?  Museums sell work all the time.  Don't be so touchy.  You didn't think we were serious about that 'public trust' thing, did you?  Why would it matter to potential donors that their work might be sold?  Where'd you ever get that silly idea?  It's no big deal.  Come on.  Grow up."

You can see why Beal was worried about "send[ing] a confusing message to some of our public."

UPDATE:  "Museums have been criticized by some observers for what can appear to the public to be confusing or contradictory rules concerning deaccessioning and the supposedly sacrosanct notion of holding work in the public trust."

"The art world is buzzing, albeit quietly, about a prospective, voluntary sale of some Detroit Institute of Arts works"

Laura Berman of the Detroit News has a story on the announcement I discussed last month here.  I'm quoted in it (though I meant to say "fix streetlights," not "sell").

I'm tied up this morning, but will have more to say about this later.

"Picasso's Stepdaughter Accuses French Dealer and Bouvier Partner of Theft"

Artnet's Eileen Kinsella has the details.

The Independent says drug dealers are using stolen Lowry paintings as "currency"

Here.  The Art Market Monitor says it's a "nonsense article based entirely on hearsay quoting self-interested promoters who avoid confirmation."  Other than that, it's great.

A word about the California resale royalty decision

A strange note has crept into some of the coverage I've seen of this week's 9th Circuit decision in the California resale royalty.  Some people seem to be reading it as making California a less hospitable place to sell art than it was before.  (Here is one example:  Will High-Priced Art Ever Be Auctioned Again in California?)  But this case is not about sales within California.  Before this case, the law applied to sales within California and sales outside California by California residents.  The 9th Circuit has now affirmed the lower court ruling striking down the second part ... which means the law still applies to sales within California.  Nothing has changed on that front.  So if high-priced art is never going to be auctioned again in California, it's not because of this week's decision.

In defense of like-kind exchanges for art (UPDATED)

From Diana Wierbicki.

UPDATE:  Michael Rushton says the article "seems to want to have it both ways: That policy is tax 'deferral' not 'avoidance', yet at the same time needed to spur US art investment?"

"We easily conclude that the royalty requirement, as applied to out-of-state sales by California residents, violates the dormant commerce clause."

The en banc decision in the California resale royalty lawsuit.  Summary here.  Opinion here.

Always seemed pretty "easy" to me too.

Tell me again about the public trust (these paintings have their own lives to live edition)

The Roerich Museum is selling two works previously held in the public trust to be accessible to present and future generations.  But then they sprinkled the magic Not Held In The Public Trust dust over them and that made everything okay.  You don't have to be so touchy about it.

Series vs. Edition

I'm quoted in this Huffington Post post by Daniel Grant.

"Tax Break Used by Investors in Flipping Art Faces Scrutiny" (UPDATED)

Excellent piece by Graham Bowley in the NYT this morning on 1031 exchanges.

I had some thoughts on this subject a few years ago.  Good summary of the legal issues involved here.

UPDATE:  Bloomberg's Katya Kazakina has a story out today on the same subject.  Something's definitely in the air about this.

"I took for granted and betrayed someone who will forever have great meaning in my life."

Eighteen months for Jasper Johns's former studio assistant.  Background here.

"Essential Issues in Artist's Estate and Foundation Planning"

A panel, tomorrow night, at Herrick, Feinstein.  The Art Newspaper's Charlotte Burns is moderating.

A different kind of authentication dispute ...

... involving Salvador Dali.

"Both bills have been proposed repeatedly in recent years, but have never successfully passed into law."

The bills are Jerrod Nadler's resale royalty bill and the oft-introduced fair-market-deduction-for-artists bill. Julia Halperin has the story in The Art Newspaper.

Speaking of bills with no realistic chance of passing, the House voted this week to repeal the estate tax.

"The charges have prompted art world figures outside of Cuba to call for a boycott of the Havana biennial"

The Art Newspaper has an interview with Tania Bruguera.

Tell me again about the public trust (will most likely lead to the museum’s dissolution edition) (UPDATED)

This one is almost too rich.

The Art Newspaper's Julia Halperin reports (the story's dated March 1 but it either just went online or I've been asleep at the switch) that the Detroit Institute is selling a Van Gogh.

Let me repeat that:  the Detroit Institute is selling a Van Gogh.

Wait a minute.  Didn't the Michigan Attorney General tell us the works in the museum's collection were held in charitable trust for the people of Michigan?  I believe that he did.

And didn't Graham Beal, the director of the museum, say that that "any sale of art will most likely lead to the museum’s dissolution"?  Any sale of art.  I believe that he did.

Now we are told (by Beal) that "[d]eaccessioning is not controversial—US museums do it all the time."  The museum had put its deaccessioning program on hold during the city’s bankruptcy proceedings. "We couldn’t sell any works [during the bankruptcy]," says Beal, "because it would have caused such confusion."

Yes, I can imagine people being confused about why they were being told that the sale of any art would most likely lead to the museum's dissolution.  People can be so funny that way.

UPDATE:  Nicholas O'Donnell has some thoughts.