“[T]he move to the transformative analysis, thought by many to be the solution to fair use woes, has actually made things worse for the visual arts.”

Speaking of excellent points by Amy Adler (who by the way co-teaches the best art law seminar in the world), she has a terrific new law review article out:  Fair Use and the Future of Art.

I’ve never thought the transformative test was remotely helpful either.

And one more interesting recent Adler piece here.

"No longer is it prudent to leave a body of work to one’s next of kin and hope for the best."

The Financial Times:  How an artist's legacy became big business.

Related:  What Artists Should Do to Protect Their Legacies before Dying.

Another "what we learned from the Knoedler scandal" story

This one from Laura Gilbert in The Art Newspaper.

A previous example here.

I continue to think the answer is "not much."

Weighing In

Artnet collects reactions to the Peter Doig case from various experts, all interesting and very much worth reading.

Amy Adler makes an excellent point here:

"[L]et’s say Doig had lied. I don’t think VARA gives you a right to disavow a work you actually created, unless it’s been significantly modified. In defense of the theory of the lawsuit, there may be circumstances where an artist does lie and could with one word wipe out $10 million of value; what recourse does an owner have under those circumstances? We might be sympathetic to a plaintiff in the case of a different set of facts."

Relatedly, there seems to be a sense, in some of these pieces and elsewhere, that the Judge in the Doig case set a bad precedent, or made life more difficult for artists going forward.  I don't think that's quite right.  All this case did was expose the risks to artists that were already there.  Before the Doig case, an artist who denied the authenticity of his work faced the possibility of a lawsuit.  After the Doig case, an artist who denies the authenticity of his work faces the possibility of a lawsuit. Nothing has changed.  This was always dangerous territory, as Doig sadly found out.

Another Richard Prince lawsuit

The Art Newspaper's Julia Halperin has the details, including that "[u]nlike the plaintiffs in the previous cases, Salazar—who posts to Instagram under the name @mynxiiwhite—is not a professional photographer. According to her website, she is a makeup artist who has toured with Kanye West and Kelly Clarkson as well as a model who has appeared on the cover of Elle Japan and Vogue Italia."

"As one of my former Corcoran colleagues said about the two case studies, ‘The Corcoran is dead. Delaware lives.'"

The Washington Post's Peggy McGlone had a story last week on the demise of the Corcoran Gallery: Homeless art, lost jobs and low enrollment: Two years later, Corcoran's breakup still stings.

Two years ago, when this was all going down, I asked:  Did the Deaccession Police Kill the Corcoran?

It seems that's exactly what ended up happening, as Tim Schneider explains:

"I'm chiefly appalled by how the US's economically ludicrous museum standards factored in. Whether their fear was authentic or simply a smoke screen for what sounds suspiciously like an inside job, the trustees reportedly opted for this plan partly because they knew they could not sell any of the Corcoran's assets to raise money for operating expenses without being institutionally waterboarded by both the [AAM] and (although McGlone doesn't mention it) the [AAMD]. For the uninitiated, the sacred standards of these organizations decree that museum holdings can only be placed on the market to fund new acquisitions, not grubby terrestrial line items like, you know, staying solvent. Case in point: The AAM excommunicated the Delaware Art Museum in 2014 for selling select works from its collection to pay construction debts on a major architectural expansion, while the AAMD imposed major sanctions for the same supposed offense. But as Delaware's chief executive points out to McGlone, the DAM survived its exile and is now thriving. The Corcoran, on the other hand, effectively reduced itself to a zombie institution willingly serving up its limbs to scavengers. All of which underscores the American nonprofit sector's illogical orthodoxy on de-accessioning: Preserving the supposed sanctity of a museum's collection is meaningless if the institution has to die for the cause. And if you ask me, it's far more barbaric to give the public an honor killing than a museum where art and business are allowed to sensibly mix."

Well said.  And speaking of Schneider, he, and friend of the blog Brian Frye, will be taking part in a panel discussion tomorrow night at WhiteBox in New York on the intersection between art, technology, and business.

BREAKING: Doig Wins (UPDATED)

The New York Times:  The Artist Peter Doig Wins a Case Involving a Painting's Attribution.

But of course, nobody really won here.

UPDATE:  More here from artnet's Dushko Petrovich.  He closes with a quote from one of Doig's dealers:  "It is our hope that this verdict will have at least one good outcome—that artists maintain the unfettered right to authenticate their own work."  Unfortunately, I don't think that's the case.  If an artist had the unfettered right to authenticate his own work, the case would have been dismissed earlier; it would never have come to trial.  Instead, what happened here is that the court treated the artist just as any third-party authenticator:  the ruling was that he happened to be right about the facts in this instance (i.e., the painting was by Doige not Doig).  But if he had been mistaken about that -- if he misremembered, or the status of the work was more ambiguous (say Doig had painted it while a teenager but he didn't regard it as a legitimate work) -- the outcome could have been different.  So I don't think artists should be especially heartened by the decision.  The case still stands as a warning that an artist who disclaims authorship of a work -- even on facts as ridiculous as these -- faces the possibility of thousands of hours of wasted working time and stress and hundreds of thousands of dollars in legal fees.

Still monkeying around

The Washington Post reported last week that, in the Monkey Selfie appeal, a "prominent anthropologist at the University of Notre Dame" has filed an amicus brief arguing that "[t]here is no dispute that Naruto created the images in question. Naruto is, therefore, the author."  That misses the point, I think.  That's a scientific conclusion.  The question in the case is a legal one:  does it make sense to consider animals to be authors in order to achieve the purposes of the Copyright Act?  On that question, Mike Masnick and Jordan Weissmann have the better of the argument.

"And so now, Von Saher will likely head to the Ninth Circuit for the third time, and the case will pass into its second decade."

I don't generally cover a lot of restitution stuff, but I did write a piece for the Journal of Art Crime on the Norton Simon-Von Saher case a few years back.  Nicholas O'Donnell reports that the museum recently won a "stunning" victory on summary judgment.

Deja vu all over again

The Art Newspaper reports that the Artist Pension Trust has made its first distributions to participants.  That's nice, but it's also at least the third time in the last six months that I've read this story.  Here's the New York Times back in March.  Here's ARTNEWS in June.  Some background here.

Lawsuit Over Koons Gazing Ball Sculpture

Stories by Dan Duray here and Brian Boucher here.

"What Happened on the Last Day of Peter Doig’s Ridiculous Trial"

artnet's Dushko Petrovich has you covered.  Another report here.

"Those fateful seconds, however, have resulted in what Doig called 'thousands of hours' of wasted working time and stress."

I was away last week, but the big art law story continues to be what artnet news rightly calls the "bizarre" authentication trial against Peter Doig.  You can read their account here.  Background here.  Deborah Solomon says the case "amounts to artist harassment."

That seems clearly true, but, to my mind, the lesson of the case is that anytime anyone (including the artist who supposedly made it) denies the authenticity of a work of art, they run the risk of incurring thousands of hours of wasted working time and stress ... not to mention who knows how much in legal fees.

The trial was scheduled to resume today.  I'll post further updates as they appear.

"Retroactive extensions of copyright throw the entire reasoning behind copyright into reverse."

Alex Tabarrok on copyright protectionism.

Does VARA need to be updated?

I'm quoted in this piece on the subject in the Observer.

"The denial sets up a likely appellate court battle that could determine the fate not just of the plaintiff artists’ resale royalties, but of the underlying statute."

Los Angeles Business Journal:  "Trial Judge Denies Artists Request to Reconsider Royalties Decision."  "While the law has been trimmed by an appellate court ruling last year, Fitzgerald’s decision, if upheld by the 9th U.S. Circuit Court of Appeals, could effectively moot the entire statute."  Background here.

Getty Images Lawsuit

The billion dollar demand may lead you to think of the recently-filed lawsuit against Getty Images as less than serious, but it's not a joke at all, it raises some very interesting issues.  Read about it here. Here is a link to the complaint.