Another new VARA case

This one in Los Angeles, involving a painted-over Charles Bukowski-inspired mural.

Do we need more regulation of the art market?

Georgina Adam in the FT.

Reading this post is optional for NYC residents

The New York Times reports that the Met is considering charging (rather than recommending suggesting) admission fees to visitors from outside New York City.

Michael Rushton points out that, first of all, "it’s a bit over the top to refer to charging those visitors who reside outside the local tax base that supports the museum, but not residents, as 'xenophobia'; many cities do this, and to my knowledge state higher education systems charging differential tuition fees to out-of-state students are not subject to the charge of xenophobia."  He also adds that the choice not to charge for admission comes "with an opportunity cost. Is it the best use of [the museum's] resources? Maybe it is, but consider the alternatives. I’m not sure the Met giving me free admission, when I’m perfectly willing to pay, is optimal."

"What does Trump's plan to abolish estate tax mean for collectors?"

I'm quoted in this piece in The Art Newspaper.

"Warhol Foundation Files Pre-emptive Lawsuit in 'Prince' Series Dispute"

I missed this last week, but:

"According to the complaint filed on April 7, the foundation says that the works are transformative and that the defendant’s 'meritless' claims should be dismissed since she is well outside of the three-year statue of limitations on copyright claims. In response, [the photographer, Lynn] Goldsmith said that she was not aware of the similarities between the two works until she saw them on Instagram in the months after Prince’s death last year."

"A rare moral rights vindication in Detroit"

Derek Fincham has the details. John Jay College's Erin Thompson ("America’s only full-time professor of art crime") tweets, first, that the developer in the case "asked me to expert witness this case - told them to settle b/c artist had full #VARA rights - and they did!" and, second, "attn artists: [the case is] an example of how having a contract can prevent your work from being destroyed."  More from Crain's Detroit Business, which reports that "[a]ccording to the lawsuit, a contract was signed, with [the developer] agreeing the mural would 'remain on the building for no less than a 10 years time period.'"

"Six Street Artists Threaten McDonald’s with Copyright Infringement Lawsuit"

Story here.  More outlaws asserting their property rights.

"Peggy Guggenheim's great-grandchildren say New York exhibition violates her legacy"

I've never understood why the Donor Intent Police haven't taken up their case.

As I've said before, they seem a little selective about the issues they get worked up about.

"Returning the market value deduction to artists, writers and composers would encourage them to donate culturally and historically significant works to American museums."

"This would not only relieve those institutions and the taxpayers who support them of the cost of purchasing such works, but also free those institutions to spend money on programs devoted to education and building."

In a New York Times op-ed, Michael Rips argues for a fair market value deduction for artists. People have been pushing for that for a long time, without much success.

Bull Podcast

At Artsy, featuring Yayoi Shionoiri and Sergio Muñoz Sarmiento.  Listen here.

"Judge Stein was skeptical throughout the two-hour hearing about whether it was possible to toss the case without discovery, pointing out that Prince’s earlier copyright victory had come at the summary judgment stage."

There was a hearing yesterday on the motion to dismiss in one of the Richard Prince Instagram series lawsuits.  (This one.)  Of course, Prince's "earlier copyright victory" was only a partial victory.

File Under "Transaction Costs" (UPDATED)

Colin Gleadell:  The Artist Pension Trust withdraws 18 lots from Sotheby's.

"[W]hy was the ... sale aborted? 'We had conversations with some of the artists, and the closer the auction got, the more the artists and their galleries said that auction was not in their best interests,' says Al Brenner, CEO of the new MutualArt Group [which now runs the APT]. Every artist fears that their work might be undersold, or unsold, at auction, affecting confidence and making sales from the gallery much more difficult."

The Art Market Monitor says the move "highlight[s] one of the issues with the whole art-as-an-asset model is the way the value of the work fluctuates and the basic illiquidity of the art market."

Background on APT here.

UPDATE:  Tim Schneider says "this isn't necessarily as damning a test case as some are making it out to be."

Today's Bull (UPDATED)

David Post says no copyright violation:  "[The Fearless Girl artist] didn’t touch or alter or reproduce or displace the design of Di Modica’s sculpture, or incorporate any parts of his design into her design. She may well have used the meaning, or the message, of his work in her work; but he doesn’t have any ownership rights in the meaning or the message of his work. He has rights only in its design. So even if Visbal intentionally (and successfully) changed that meaning or message, Di Modica, as an artist, may feel that this is deeply objectionable, but there’s nothing in copyright law that allows him to stop her from doing that."

As for VARA, he says "the statute protects only against 'any intentional distortion, mutilation, or other modification of the work' (and only if the distortion, mutilation or modification 'would be prejudicial to [the artist’s] honor or reputation'), and it would seem impossible to argue that Visbal distorted or mutilated or modified the work in any way."

UPDATE:  In an update to his post, Post posts the following:  "Several commenters suggested that Visbal did indeed incorporate parts of his design into hers, insofar as her Fearless Girl was (by assumption) conceived to be facing down the charging bull.  As one reader put it: 'Her design ... clearly and intentionally includes the bull. As Visbal explains, the point of her design is that the girl is blocking the bull, so the bull is, by definition, part of the design.' I could have been clearer: she didn’t incorporate any of Di Modica’s copyright-protected design into hers.  A charging bull may be part of Visbal’s conception of the work – but Di Modica doesn’t have copyright protection in a charging bull, he only has copyright protection in his particular design of a charging bull ....  The mere idea of a bull charging isn’t part of his protected design – so even if she had 'charging bull' as part of her design, she didn’t incorporate Di Modica’s 'Charging Bull' into her work."

More Bull (UPDATED 2X)

More coverage today of the Fearless Girl controversy.

First, Kriston Capps in The Atlantic:  Why Wall Street’s Charging Bull Sculptor Has No Real Case Against Fearless Girl.

And a piece in The Christian Science Monitor, with fresh quotes from:

Amy Adler:  "The possibility of changed meaning is, unsure, painful for an artist, but also something we should celebrate as a public policy matter. I think that’s exactly what any kind of arts policy ought to encourage. That dynamism of meaning that we see in the evolution of the space.”

And Sergio Muñoz Sarmiento:  "The way that the art market is now, works of art are selling for millions of dollars. The courts of law are no longer saying 'This is about pure expression.' This is probably now commercial activity. It’s no different than selling trinkets on eBay or selling goods on Fifth Avenue. Art may not be about expression anymore. It’s about pure commodity."

And Alfred Steiner joins the fray:  "The artist may have made the work for a particular reason, but they lose control over that meaning over time."

UPDATE:  Ann Althouse quotes an artist/IP lawyer who makes the case (as some others, including Di Modica's lawyers, have) that the real issue is not VARA but the fact that Fearless Girl is an unauthorized derivative work:  "Fearless Girl is a work of art that incorporates Charging Bull without permission of the copyright owner. Unauthorized use of a copyrighted work — unless it falls within some narrow exceptions — is straight up copyright infringement. ... You can’t control how people view your copyrighted work necessarily, but you can certainly prohibit them from using it without authorization. The relevant factual question would be, does Fearless Girl use the bull sculpture?"  To which she responds:  "Note that the 'Fearless Girl' statue is not attached to 'Charging Bull.' She's not riding it or grabbing it by the horns or even right up in its face. ... There's some distance between the 2 sculptures. It is possible to look at them independently and see them one at a time without the other necessarily intruding into your field of vision. You, the viewer, can also choose to position yourself so as to see them together and think of them together. The 'Charging Bull' sculptor wants to own the space in the vicinity of his work. If he's right, it would seem that artists could push around museum curators for grouping pieces together."

UPDATE 2:  Greg Fallis points out that Fearless Girl is "an extremely clever advertising scheme" by an investment fund called State Street Global Advisors; it was "commissioned as part of an advertising campaign developed by McCann, a global advertising corporation[,] ... to be presented on the first anniversary of State Street Global’s 'Gender Diversity Index' fund, which has the following NASDAQ ticker symbol: SHE."  And he says Di Modica has a point:  "I love the Fearless Girl and I resent her. She’s an example of how commercialization can take something important and meaningful — something about which everybody should agree — and shit all over it by turning it into a commodity. Fearless Girl is beautiful, but she is selling SHE; that’s why she’s there."

Or, as Paul Graham puts it:  "[T]he Fearless Girl is part of a corporate PR campaign that has totally p0wned Polite Opinion."

Another VARA Dispute

The New York Times reports that an artist "is suing Trinity Church in Lower Manhattan for moving his bronze re-creation of a huge sycamore tree that once stood in the churchyard."  According to the Times, his claim (or one of his claims) is that VARA "prohibits the removal of sculptures created to be installed permanently at a particular site."  More from Daniel Grant in The Art Newspaper here.

Those types of claims under VARA have not fared well in the past.

Anyway, big week for VARA in the news.

Bull (UPDATED)

Lots more coverage of the Fearless Girl-Charging Bull controversy, mentioned earlier here.  Here is James Barron in the NYT.  Here is the Washington Post.  And NPR here.

In Slate Christina Cauterucci claims that Di Modica makes a "very valid argument" that the city has altered his work -- potentially in violation of VARA -- "by adding another sculpture in direct conversation with his work without his sign-off."

At Above the Law, Joe Patrice responds:  "The hell are you talking about? Nothing about Fearless Girl diminishes the Bull or undermines Di Modica’s reputation as an artist."

Patrice also quotes NYU lawprof Chris Sprigman:  "God help any museum if this were the law. Imagine museums placing artwork and painter A asserting an intellectual property right not to be placed next to painter B."

Mike Masnick makes a similar point:  "The idea that a visual artist could block someone else from placing a work near their own work because it might change how people see the original would create major headaches around the globe. Imagine museum curators being forced to move works of art because an artist protests about how the work next to his or her own negatively impacts how people view it. That's insane."

As does NYU's Amy Adler (quoted here):  "At the end of the day, the artist has no claim, ... Under moral rights in this country, while you can sue for someone actually physically changing a sculpture, changing a sculpture by placing another sculpture near it is simply not actionable, ... We don’t want to let artists start suing curators because they don’t like who their work is displayed next to."  (She also adds:  "A policy that would allow one artist to stop another artist’s work would be a mistake. All public art is ideally in dialogue with the space it exists in. And that includes other sculptures.")

Nicholas O'Donnell says that "VARA confers a 'right of integrity' on works of recognized stature. ... The right of integrity is exactly what it sounds like: a protection against the physical, not the conceptual, integrity of the work."

And a dissenting view, from this Artsy piece:  "[T]eacher and lawyer Sergio Muñoz Sarmiento, who founded New York’s Art & Law Program, thinks [VARA] could have a more expansive application. As it stands, the wording of the law never explicitly limits the definition of manipulation to physical alterations.  As such, Sarmiento believes that Di Modica does have 'legitimate claims' under VARA—which, despite being frequently invoked [in] this and other cases, remains 'very untested' in court. Sarmiento also noted that, depending on what constitutes the work, Charging Bull may also have been physically modified. The cobblestone around and under the bull ... was extended during the installation of Fearless Girl, through the addition of more stones ...."

UPDATE:  Picasso suing to remove that damn girl sculpture by Degas.

"LA Gallery Says It Was Sold Forged Warhols"

Story here.  The gallery -- the one that says it was ripped off -- claims to have "the laregest gallery-owned Warhol collection in the world.” Will Goetzmann says the "varieties of art market fraud are endless."  The Art Market Monitor says "the scam underscores a truism of art forgery, it more often takes place in obscure corners of markets where less might be known and buyers might be more easily fooled."

"An invoice cannot be said to be dispositive of ownership."

An interesting art-related decision in the matrimonial context.  The question was whether certain works of art purchased during the marriage were the husband's separate property or were jointly held.  The court held that the fact that the invoice was in the husband's name alone was not the end of the inquiry:  "We conclude that title to personalty cannot be determined by relying solely upon an invoice. In determining title to the artwork in question, all the facts and circumstances of the acquisition and indicia of ownership must also be considered."

Physical Graffiti (UPDATED 4X)

The 5Pointz case is going to trial; cross motions for summary judgment were denied.  I think it's being a little overhyped -- it's been called a "major win" for the artists and "a groundbreaking decision" -- but all that really happened is the Court ruled that the question whether the works are of "recognized stature" is a question of fact for a jury to decide.  In 2013, the Court had already decided that their ephemeral nature didn't disqualify graffiti works from VARA protection.

Amy Adler notes that "there’s something ironic about trying to preserve an art form that’s about transience." (Relatedly, I'll be curious to see the plaintiffs' damages theory at trial.)

UPDATE:  More from the New York Times.

UPDATE 2:  Ann Althouse:  "How can the artists can win this? Relying on Visual Artists Rights Act of 1990, they claim entitlement to notice in writing 90 days before the destruction of the art, which, they say, would have given them the opportunity to remove or photograph the work. The artists are not arguing that the owner can't tear down his building."

UPDATE 3:  Tim Schneider:  "[D]ue to the terms of the Visual Artists Rights Act (VARA), a jury will likely decide whether the [artists] receive monetary damages largely based on whether their destroyed artworks achieved 'recognized stature' in the eyes of supposed industry experts. ... [T]his question reveals the degree to which art is ensconced as an insider's niche, especially here in the US. It isn't just that self-interested experts work daily to reinforce the perception that art depends on their opinions. It's that our legislators have literally made their judgments on this topic the law of the land."

UPDATE 4:  Related: a letter from the Art Law Committee of the New York City Bar Association on the "recognized stature" requirement.

"The old typewriter turned out to be the smoking gun in the case."

A statement from the FBI on the Spoutz forgery case (via The Art Market Monitor).

Tell me again about the public trust (Toledo Museum of Art selling off over 140 pieces edition)

Because the proceeds will go into something called a "new acquisitions fund," the sale is ethical. Because the proceeds will go into something called a "new acquisitions fund," it doesn't matter that, having fallen under the aegis of a museum, those 140 works were held in the public trust, to be accessible to present and future generations.  No potential future donor will ask, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?  Don't be so touchy.

"In an age where some artists are calling for the destruction of art, others are calling for its preservation."

Link here.

Incidence in Versailles

The Art Newspaper reports that a French court has ruled that artist resale royalties must always be paid by the seller (rather than the buyer).  Michael Rushton says the "evidence suggests that sellers would bear the burden regardless of the legal ruling," that the question is answered "by economics, not by the legal assessment of who needs to pay."

Nothing to Fear

Nicholas O'Donnell calls bull on possible copyright infringement claims against the "Fearless Girl" sculpture that was recently installed in the Financial District.

"F.B.I. Reunites a Rockwell, Stolen 40 Years Ago, With Its Owners"

New York Times story here.