"French law forbids national museums from selling anything in their collections, unlike many museums in the United States, which can de-accession works."

Did American museums' promiscuous deaccessioning practices contribute to the decision by Spencer and Marlene Hays to leave their incredible collection to France?

Maybe some day American museums will understand that they hold their works in the public trust, to be accessible to present and future generations, and they shouldn't be sold off in the normal course.

"In the art market, repeat sales account for a fairly small fraction of total sales. ... Thus, any art index based on repeat sales—such as the Mei-Moses index—is unlikely to be considered representative of any market segment."

Sotheby's has bought the Mei Moses art index, for an undisclosed price.  I'm with Columbia Business School's Arturo Cifuentes, quoted in the header above.  As Felix Salmon put it several years ago, the index is "a creature of massive survivorship bias. The Mei Moses index looks at auction pairs: works of art which have been sold at auction twice. This method gives a very good idea of what has happened to the value of any given work of art over time, but it’s a very bad way of determining what has happened to the art market as a whole, since the kind of works which get auctioned multiple times are decidedly not representative of the broader art world."

"The score was settled thanks to outraged posts on social media."

artnet:  Vivienne Westwood Accused of Plagiarizing Artist’s Design.

Given what's in the story, I don't think the "accused of" is necessary there.

2017 National Cultural Heritage Law Moot Court Competition

Details here.

Tell me again about the public trust (nearly 70 antiquities originally from Egypt and other countries edition)

The Toledo Museum of Art is selling.  Don't be alarmed by the fact that "modern international cultural heritage laws make it impossible to acquire such antiquities, meaning the Toledo museum is unlikely to ever be able to replace the objects if leaders would choose to do so."

It's not like those nearly 70 objects, having fallen under the aegis of a museum, were held in the public trust, to be accessible to present and future generations.  That's a totally made up thing. No one ever says that.

"New Authentication Lawsuit Filed Against Agnes Martin Catalogue Raisonné"

Nicholas O'Donnell has the details, and a preliminary analysis.  The complaint is here.

Another example of the indeterminacy of fair use

Courtesy of Clancco. Southern District said fair use on motion to dismiss. Second Circuit disagreed.

As I've said, no one has any idea.

"Whatever its fate, the tale of the contested Monet shows that the world of art dealing is as opaque as any pondscape."

Kelly Crow in the WSJ:  Art Dealer Claims Monet in 1MDB Scandal.

"But now he says all 24 of the Golubs he bought from the Gascards are fake."

Graham Bowley reports in the Times on a lawsuit filed by Wall Street trader Andrew Hall against an art history professor and her son.

The problem of the art market is how do you build a set of legal rules to govern a marketplace where even the most sophisticated participants (the Times notes that Hall was "capable of earning a $100 million bonus in a single year," has amassed a collection of 5,000 works, and has his own private museum) can't tell the difference between the real and the fake?

A related story is unfolding here.

And an interesting observation from Blake Gopnik:

"There’s one other take-home from all this ...: Any case where science does need to be invoked is a case where the forgery is so good, and so very like what we expect from the artist in question, that it does all the aesthetic work that an original would. And that means the fake can happily be folded in with the real works we know, without doing much harm at all or even making much of a difference. ... Any time expert eyes can’t agree on whether a picture is real or fake—or when it turns out that they all agree that a fake is real—they are actually letting us know that it’s a case that’s barely worth resolving."

The "transformative" gift to MoMA ...

... from the Cisneros Collection gives me a chance to re-up this piece from last year:  What culture? What public?

More on the Shvo indictment

From ARCA here.  The Real Deal here.  Background here.

"Today I put myself forward as a candidate for the 2018 election."

Tania Bruguera is running for office in Cuba:

"Pushing barriers has been Ms. Bruguera’s signature. She made waves in December 2014 when she attempted to stage an open-mike performance in one of Havana’s most emblematic plazas, a gesture for which she was arrested and had her passport confiscated for several months."

"Some observers warned that if decided in Hoffman’s favor, the case could have meant that legal agreements ensuring a transaction’s secrecy could be used to effectively prohibit future sales of the art they governed."

Isaac Kaplan at Artsy on the Marguerite Hoffman confidentiality lawsuit, discussed last week here.

Why do (some) museums prohibit photography?

Five reasons.

News you can use

Artsy:  What It Takes to Recover a Stolen Work of Art.

"Courts and the U.S. Copyright Office have been pretty resistant to the notion that the design of letters is copyrightable."

The Wall Street Journal has more on the Dash Snow estate's claim against McDonald's.

Should the U.S. adopt a payment-in-kind income tax program for artists?

This law review article by Julia Bogdanovich argues no.  (h/t)

"The Frans Hals Revelations Cast Doubt on Both Technical Expertise and Connoisseurship"

The Art Market Monitor on the recent news that Sotheby's has reimbursed the buyer who purchased a painting attributed to Frans Hals for $10 million.

"Yet another major clothing company is facing allegations that it stole the work of an independent artist without permission or payment."

Artsy:  Kohl’s Is the Latest Fashion Retailer Accused of Stealing an Artist’s Work.

"Dash Snow’s Estate Sues McDonald’s for Copyright Infringement"

Carey Dunne has the details at Hyperallergic.

"The suit claims Oremland violated professional boundaries and induced a patient, John Pierce, to give him at least a dozen rare works of art by masters such as French modernist Henri Matisse and Italian Renaissance artist Raphael."

KQED:  Art and Psychiatry On Trial: The Strange Case of Pierce v. Oremland.

"A Civil War painting that shows a soldier carrying a Confederate flag into battle will be displayed at the Big Fresno Fair, averting a First Amendment showdown this week in U.S. District Court"

Story here.  Background here.

The Fifth Circuit brings some sense to the Marguerite Hoffman breach of confidentiality lawsuit

This has been going for for six and half years.  Background here, here, and here.  Briefly, Hoffman sued collector David Martinez and L&M gallery for breach of the confidentiality clause in the sale of a Rothko.  The District Court threw out the claims against Martinez, but let stand a $500,000 verdict against the gallery.  (Hoffman had reportedly sought more than $22 million.)  The Fifth Circuit has now thrown out the verdict against the gallery too.  You can read the decision here.

There were always three things that struck me as really odd about the case.

First, my very first reaction to the claim, way back in 2010, was to note the strangeness of the core claim "that, because Martinez agreed to keep the transaction confidential, he could never re-sell the work. That is, he is said to have breached the confidentiality clause not in the usual way such clauses are breached -- i.e., by blabbing about it -- but by the mere act of selling."  The Fifth Circuit refuses to read the confidentiality provision as "permanently prevent[ing] the public sale of the [work]."

Second, I never understood the damages theory in the case.  Hoffman's theory seemed to be that her damages were the amount she "gave up by selling the work privately (with a confidentiality clause) rather than at auction, as if sales at auction always do better than private sales."  The Fifth Circuit rejects this "auction premium" theory as hypothetical and speculative.

And last, the lawsuit always seemed to be, as The Art Market Monitor put it, "self-defeating."  If the concern was to not draw attention to the fact that Hoffman sold the Rothko ... well, here we are six and a half years later still talking about the fact that Hoffman sold the Rothko.  I would also assume that the legal fees for six and a half years of litigation were not insignificant.

In any event, the end at last of a pretty bizarre case.

"In other words, when you donate your painting to the auction, you get karma, joy, and societal good, but you get zero tax deduction."

Hannah Cole:  Can I Get a Tax Deduction For the Artwork I Made? Short Answer, No.

Brian Frye on the Detroit Bankruptcy

Self-recommending.  It's not primarily about the museum association deaccessioning rules, but I am naturally drawn to paragraphs like this:

"And yet, it is unclear why it is 'ethical' to sell artworks in order to buy artworks, but 'unethical' to sell artworks for other purposes. For example, under the AAM and AAMD guidelines, it is 'unethical' for an art museum to sell a work of art in order to avoid bankruptcy. As a consequence, art museums facing financial crises have been forced to close, when the sale of a single artwork could have covered their expenses. Most recently, the Corcoran Museum of American Art found itself in precisely this situation, and we lost an American institution. Would it really have been 'unethical' for the Corcoran to have sold an artwork in order to maintain its existence? Would it really be 'unethical' for a museum to sell an artwork from its collection in order to provide free admission? Would it really be 'unethical' for a university art museum to sell an artwork in order to provide scholarships?"

Yes, would it?

"There are now three lawsuits claiming that Leigh Keno or Leslie Keno and/or one of their companies have not paid their auction house bills."

Details in the Maine Antique Digest here.  At least one involves allegations of shill bidding. Background here.