If You Buy an Artwork, Can You Legally Eat It?

Artsy's Isaac Kaplan runs through the menu of possibilities.

"A New York lawsuit asks: Is graffiti art protected under federal law?"

The LA Times has a piece on the 5Pointz lawsuit, which is still awaiting decision, including an interesting point from Columbia's Pippa Loengard.  She says even if the artists win, "it’s going to be a Pyrrhic victory. These individual artists may be compensated, but what is going to be the long-term effect [is] buildings don’t allow public art because they don’t want to face damages."

Criminal Charges for Chowaiki

Brian Boucher has the details.  Earlier post here.  "The indictment ... alleges that Chowaiki sold his victims a stake in works of art that he did not own and sometimes sold shares that totaled more than 100 percent of the work’s value."

Will Goetzmann tweets:  "First rule of investing: avoid fraud."

If you've got information that would lead to the recovery of the Gardner works ...

... now's the time to share it:  the $10 million reward offer goes down to $5 million on Jan. 1.

How the new US tax law affects the art world (UPDATED)

Martha Lufkin's take.

UPDATE:  Artsy's take is here, focusing especially on the elimination of like-kind exchanges of art.

Join the crowd

Felix Salmon imagines an "alternative universe" where a better solution to the Berkshire Museum's financial difficulties was ... deaccessioning artwork:

"In this alternative universe, once the board decided to get a real grip on its finances, it could start quietly talking to the Norman Rockwell Museum, down the road. Some kind of deal could surely be done whereby a donor would effectively fund the move of two great Rockwell paintings into the place where his legacy is most studied and celebrated. Technically, that would still have meant the deaccession of one or two Rockwells, but in practice no one would have minded very much, because the paintings would have stayed in a Berkshires museum."

No one would have minded very much?  I doubt that.

But in any case:  welcome to our crowd, Felix!

Berkshire Museum Injunction Extended to Jan. 29

Story here.  A spokeswoman for the attorney general said the extension "will provide enough time for attorneys to finish their investigation."

Recall what the trial court judge had to say about the AG's "investigation":

"He points out that the AG was 'made aware of the proposed sale' in June, at which point it 'commenced a detailed and thorough review':  it 'requested and reviewed numerous documents, conducted over 20 informal interviews, met with Museum officials in Pittsfield, had no fewer than 20 conference calls with Museum counsel and fielded more than 400 contacts by individuals interested in the transaction.'  In September, when the November sale was announced, the AG 'took no steps to intervene or even express dissatisfaction.'  It wasn't until Oct. 30, two days before the court hearing, that the AG got involved, and even then did not 'assert the the Museum breached its fiduciary duties, only that it has "concerns" and needs more time to complete its investigation.'  'Putting aside the issue of why four months was insufficient to complete this inquiry,' the Court continued, the AG failed to specify 'what information is necessary to complete its review, what attempts it has made to obtain such information, and when it will be in a position to offer its opinion.'"

Christo Copyright Suit

Over the use of some photographs.  Story here.

"Adidas regrets these actions and is pleased that the lawsuit filed by Art Basel has been settled amicably."

A settlement in the Art Basel-Adidas lawsuit.  Background here.

"How Trump’s new tax plan could affect the art world"

Martha Lufkin's take here.

"What's better for the Berkshires?"

"Keeping two Norman Rockwell paintings in a Pittsfield museum that’s headed toward financial ruin? Or having a reinvented museum in Pittsfield that’s financially stable because it sold those two paintings, along with other valuable items from its collection?"

The Boston Globe editorial board on the Berkshire Museum controversy.

Official response from Deaccession Police headquarters here.

"Once you get a work like Salvator Mundi out of the auction house, you must figure out where to ship it."

artnet News:  So You Just Bought a $450 Million Leonardo da Vinci Painting. Now What?

And relatedly, Peter Singer (and some others) have some suggestions for what else you could do with $450 million.

"The gallery, Chowaiki & Co. Fine Art Ltd., filed for bankruptcy on Nov. 13." (UPDATED)

"At least three lawsuits filed this week against the dealer, Ezra Chowaiki, accuse him and the Park Avenue gallery in which he’s the president and a minority shareholder, of carrying out a variety of frauds."

UPDATE:  "Ezra is in a world of hurt."

Are works owned by public libraries held in the public trust?

If not, why not?

The New York Times reports on a library in Jamestown, N.Y. that "says it needs to sell most of the 50-odd works in its collection to make ends meet, an especially formidable task, it said, since the city has slashed its budget over the last few years."

One interesting twist in the case: a couple of "art patrons" had "proposed keeping the collection in Jamestown by buying about 40 of the works for $1.2 million and finding a new home for them in the city" -- but the Attorney General turned them down!  The AG "objected to a private sale without testing whether the paintings might actually bring in more if sold through public auction."

"There's no easy answer."

I found another member for my Deaccessioning Hall of Fame: Lynn Zelevansky, who recently stepped down as director of the Carnegie Museum of Art in Pittsburgh (not, I don't think, because of her views on deaccessioning).  From an interview with Charlotte Burns of Art Agency, Partners:

"What about the question of using funds for operating expenses?

"That’s much harder to answer. It has traditionally been met with a resounding no from the field and organizations that set its standards, such as the American Alliance of Museums and the Association of Art Museum Directors.

"The worry is that a board might sell works from the collection as an easy way of paying outstanding bills. I remember a friend remarking when LA Moca went through its financial crisis that the institution—which is so deep in art by Rothko and Rauschenberg—could have sold a minor work by each artist without compromising the collection and solved its economic problems. But that’s not something you would want to happen without oversight. What would it involve? And what power would the overseers have to enforce their judgments? There’s no easy answer.

"I once stood up at an AAMD meeting and asked if there was some way we could imagine doing this in extreme and worthy situations, and the membership practically threw rotten tomatoes at me, so that was that."

That's basically the position of what Felix Salmon calls the anti-anti-deaccessioning crowd:  There's no easy answer.  Maybe there's a way to do it in extreme and worthy situations.  Or, as the trial court judge put it in his recent decision in the Berkshire Museum case, every proposed deacesssion must be examined on its own merits.

Against this extreme position of there are no easy answers and considering each case on its own merits, the anti-anti-anti-deaccessioning crowd throws rotten tomatoes.  (In fairness, it generally works for them.)

Photos Stolen From PS1

Or were they just borrowed?  Definitely a weird one.

Trinity Church VARA Suit Dismissed

The VARA lawsuit over the removal of a sculpture from Trinity Church in Manhattan has been dismissed. Story here.  Decision here.  I said when the case was filed that VARA claims relating to the removal of site-specific work have not fared well.  Add this one to the list:  the Court says "simply relocating The Trinity Root does not by itself constitute distortion, mutilation or modification under VARA."

In this case, the artist had the additional difficulty that he signed a contact transferring to the Church "all right, title, and interest to the Sculpture ..., including but not limited to the copyright therein, ... in perpetuity throughout the universe, for use in any manner ....  In the event of any termination of this Agreement, Trinity will own the Sculpture, in whatever degree of completion ..., and Trinity will have the right to complete, exhibit and sell the Sculpture if it so chooses. ... [The artist] understands that Trinity has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate" (emphasis in the original).

Tyler Cowen on the Berkshire Museum (UPDATED 2X)

Sell the Rockwells.  It's Just Business.

UPDATE:  More from Cowen here.

UPDATE 2:  Another thoughtful critic of the Deaccession Police, Brian Frye, was on Bloomberg Radio talking about the latest developments.

BREAKING: Appeals Court Enjoins Berkshire Museum Sale

Art Newspaper story here, including that "the injunction expires on December 11, but the judge has given the AGO the option to extend the injunction until its investigation into the deaccessioning can be completed."  I guess the appellate court wasn't as impressed with Judge Agostini's decision as I was.

It was widely reported today that the 5Pointz graffiti artists had won their VARA lawsuit against the building's developer ...

... but, as the New York Times reports, in a weird procedural twist, the jury's decision was only a "recommendation":  "Even though the jury rendered its decision after hearing three weeks of testimony, near the end of the trial both Mr. Baum and Mr. Ebert agreed that Judge Frederic Block, who presided over the case, should take its verdict only as a recommendation. Judge Block has asked both sides to submit court papers in the coming weeks about the validity of the verdict, at which point he will issue a final decision."

BREAKING NEWS: Injunction denied in Berkshire Museum case (UPDATED 2X)

Story here.  More later.

UPDATE:  Lots of interesting stuff in the decision.  There are a number of museum directors in my Deaccessioning Hall of Fame, and we recently added our first scholar-in-residence.  Now we've got our first judge.  Some reactions, in no particular order:

1.  There were recently some efforts by the usual anti-deaccessioning crowd to downplay the museum's financial difficulties, but Judge Agostini gives that argument short shrift:  "There appears to be no dispute that the Museum is in serious financial trouble. ... Although the extent of the financial woes is disputed, it is beyond cavil that the Museum's financial outlook is bleak."  So stop caviling.

2.  He points out (at p. 6) that "deaccessioning items from a museum is neither illegal nor unethical per se and every proposed deacesssion must be examined on its own merits."  That's a pretty good statement of the anti-anti-deaccessioning position.

3.  The decision basically proceeds in two movements.  First, nobody but the Attorney General has standing to sue.  And, as for the Attorney General ... oh, does he take the Attorney General to the woodshed.  He points out that the AG was "made aware of the proposed sale" in June, at which point it "commenced a detailed and thorough review":  it "requested and reviewed numerous documents, conducted over 20 informal interviews, met with Museum officials in Pittsfield, had no fewer than 20 conference calls with Museum counsel and fielded more than 400 contacts by individuals interested in the transaction."  In September, when the November sale was announced, the AG "took no steps to intervene or even express dissatisfaction."  It wasn't until Oct. 30, two days before the court hearing, that the AG got involved, and even then did not "assert the the Museum breached its fiduciary duties, only that it has 'concerns' and needs more time to complete its investigation."

"Putting aside the issue of why four months was insufficient to complete this inquiry," the Court continued, the AG failed to specify "what information is necessary to complete its review, what attempts it has made to obtain such information, and when it will be in a position to offer its opinion."  The Court calls the AG "a reluctant warrior," and notes, dryly: "this request to enjoin based on concerns is unusual."

4.   The Attorney General didn't fare much better when the Court finally turned to the substantive question whether the museum's trustees breached their fiduciary duty.  It points out, first of all, that "the Attorney General, agreeing that the Museum was in dire straits, conceded at oral argument that the Trustees' decision to deaccession ... was in good faith."  It then goes on to note that the AG "cites no case, statute, or [AG] policy in support of the proposition that, to be reasonable, corporate board decisions must follow the professional ethics of the field."  In other words, the AAMD and their allies in the Deaccession Police do not make the law.

Let's stop there for a second because this is an important point.  The Court here is rejecting the argument that the museum's decision was unreasonable because it "would result in sanctions" by the museum associations.  The Deaccession Police have had some success with this argument in the past -- most notably, in the case of the Corcoran -- which has always struck me as remarkable.  It seems to me the argument is:

If you do X, we will smack you.
It is unreasonable and a breach of fiduciary duty to do something that results in your being smacked.
Therefore, it is a breach of fiduciary duty to do X.

Judge Agostini rejects that argument.  "The Trustees evidently considered the ethical implications of their decision and weighed those implications heavily."

5.   He also dismisses, in one quick footnote (n.11), the argument we hear over and over from the Deaccession Police "that deaccessions of this nature will chill relations with potential future donors to the Berkshire Museum, and to museums in general."  This argument, he says, "overlooks the simple fact that donors are free to restrict their gifts in express terms, and, quite often, they do."

6.  Nobody seemed to press the argument that works can't be sold because they are held in the public trust ... but maybe that's because there's no such thing as the public trust.

7.  The bottom, bottom line:  The trustees here "undertook a deliberate and careful review of the available options and chose what they believed to be the appropriate course.  That was their duty. Though the Attorney General, the non-governmental plaintiffs, and perhaps many in the public might disagree with the resulting decision, the law does not hold the Trustees to a standard of popular or political approval.  Rather, the law requires reasonable care under the circumstances, and there is no evidence that the Trustees afforded this decision less than reasonable care."  In other words:  once again, the Deaccession Police, writing on Twitter, do not make the law.

8.  The Court closes with one last shot at the Attorney General -- "it is bewildering that the [AG] would seek such an injunction ... when its investigation has uncovered no evidence of bad faith, no conflict of interest, no breach of loyalty, no express gift restrictions, and yielded unconvincing evidence of implied gift restrictions or a breach of reasonable care during a two-year decision-making process" -- and expressly frames its decision as vindicating "the rights of a charitable board to make thoughtful decisions to steer its charity through troubled times."

UPDATE 2:  Felix Salmon needs a drink.  (Scroll around for his other thoughts on the decision.) And Brian Frye called it.  (Yes, he did.)

"Investigators suspect he swiped it during his time working for Scully."

The Daily News:  Famed artist Sean Scully's ex-aide busted for allegedly stealing, selling $500G painting from boss' Chelsea studio.

"In its new Parkway location, the Barnes has met or exceeded virtually every revenue, fund-raising, and attendance projection made in 2010 before the move."

While the usual suspects continue their latest freakout, the Philadelphia Inquirer's Stephan Salisbury takes a look at the subject of one of their previous freakouts.

Hostage Situation (UPDATED)

There were reports yesterday that the Mugrabis were suing Mana Contemporary, accusing it of holding their collection "hostage" because of alleged unpaid storage bills.  Today, the Art Newspaper has a story headlined "Court orders release of Mugrabi family’s art being held 'hostage' by storage firm" ... but the subhed says "Mana Contemporary must deliver five works in exchange for $1m," which, if that's true -- if they have to pay the million dollars before they get the work back -- means the hostage-taking seems to have worked.

UPDATE:  Some clarity from Bloomberg.  Under a similar headline -- "Five ‘Hostage’ Paintings Ordered Freed in N.J. Storage Dispute" -- we learn that, in exchange for their freedom, "the Mugrabi family was ordered to post a $1 million bond."

"Blue-Chip Art Dealer Accused of Scamming Clients for Millions of Dollars Goes to Jail in New York"

The dealer is Timothy Sammons, who has been charged with grand larceny and fraud.

"Norman Rockwell’s Sons Sue Berkshire Museum, Seeking Halt to Sotheby’s Sale"

Story here.

Brian Frye rules:  "The plaintiffs lack standing & the complaint fails to state a viable cause of action. No written gift condition & 'public trust' is pure BS."

"The family of the late African-American artist Thornton Dial has charged in a new lawsuit that Dial’s artwork was wrongly acquired by the High Museum of Art." (UPDATED)

"Filed this week in federal court by Dial’s estate and three of his children, the lawsuit charges that art dealer William S. Arnett or his foundation Souls Grown Deep sold or donated Dial’s artwork to the High Museum that Arnett didn’t rightfully own."

UPDATE:  Lawsuit quickly withdrawn.

"More than a dozen artists packed into a federal courtroom on Wednesday to watch as lawyers debated whether the destruction of their murals was a violation of their rights."

Artnet's Eileen Kinsella has a report on the 5Pointz VARA trial, now underway in Brooklyn.

Most of the commentary focuses on the question whether these works are of "recognized stature," as VARA requires, but I've always been more interested in hearing the plaintiffs' damages theory.

All in the timing

Artnews reports that dealer Gary Nader will sell $100 million worth of works from his collection in order to fund a proposed museum in Florida to house said collection.

I assume no one could have a problem with this.  It's his work, and if that's what it takes to get the museum built, great.

But if he first donated the work to the museum ... and the museum sold the works to, say, raise money for construction of the building ... then the sale would suddenly become unethical and the Deaccession Police would be on to their usual carping.

But the end result is identical in the two cases.  How can one be totally noncontroversial and the other deeply unethical?

The trial in the 5Pointz VARA case is about to get underway (UPDATED)

Story here.  Background here.

UPDATE:  The New York Times on the first day of trial here.

"Threats of violence in response to controversial art are abhorrent."

"They can’t be allowed to dictate what art the public is allowed to see, lest a few deranged would-be saboteurs are encouraged to shut down exhibits at their whim. In an age of social-media campaigns that can reach millions in an instant, the problem is only going to get worse."

The New York Times editorial board:  The Guggenheim Surrenders on Free Expression.

Rules and Norms (UPDATED)

Felix Salmon, generally the most articulate defender of the anti-deaccessioning position, has a piece in The New Yorker on the Berkshire Museum controversy, which then led to a (short but) interesting discussion between him and Deaccessioning Hall of Fame scholar-in-residence Brian Frye on Twitter.

Salmon says "I would really love to see some of the anti-anti-deaccessioning crowd [are we a 'crowd'? -- dz] come out and say yes, this deaccessioning is bad."  To which Frye responds:  "I think you make a pretty good case this one is a bad decision on the merits. But I don't think [the AAMD] rules are an appropriate solution."

Not surprisingly, I'm with the scholar-in-residence on this one.  Most importantly, I think this is exactly how the conversation is supposed to go.  Salmon's basic position is:  this deaccessioning is a bad idea, the museum's financial condition is not so bad, they don't *need* to do this.  He may be right about that (I take no position on it) but the implication is that, if the facts were otherwise, if the museum's financial condition was sufficiently desperate or the need could be otherwise sufficiently demonstrated, then the deaccessioning would be justified.  That just is the position of those of us in the anti-anti-deaccessioning crowd.

Contrast Salmon's approach with that of a typical member of the Deaccessioning Police like Christopher Knight, who thinks that, no matter what -- no matter how bad the institution's financial condition, no matter how great the need -- deaccessioning is always wrong in every case.  Better to close the museum than sell any work.

UPDATE:  On cue, a member of the Deaccession Police comes along to remind Salmon that, at the end of the day, he is part of the anti-anti-deaccessioning crowd himself.

"Bank Behind Fearless Girl Statue Settles U.S. Gender Pay Dispute"

"The custody bank will pay $5 million to more than 300 women, following a U.S. Department of Labor audit."

Who will guard the guards?

The Daily Beast:  The Prison Guards Who Stole a Salvador Dalí Painting.

"The ‘Sociopath’ Scholar Who Made Films of His Crimes Tried to Confess to America’s Most Famous Art Heist"

Your art law headline of the day.

Heckler's Veto (UPDATED)

Guggenheim Pulls Controversial Animal Artworks From China Show Over Threats of Violence.

UPDATE:  Ai Weiwei:  "When an art institution cannot exercise its right for freedom of speech, that is tragic for a modern society. Pressuring museums to pull down artwork shows a narrow understanding about not only animal rights but also human rights."

Some News in the Rybolovlev-Bouvier Case

Eileen Kinsella has the story here.  Background here.

"Wedding Cakes, Urinals, and Other Art"

Michael Dorf on the Masterpiece Cakeshop case currently before the Supreme Court.

"The dire need of Naruto is what fully underpins why we pursued this lawsuit to begin with."

The monkey selfie lawsuit has also settled.  Background here.

And then there were none

The last of the Knoedler lawsuits has settled.

"The foundation said that Dalí’s remains would soon return to the Figueres museum’s crypt."

NYT:  Salvador Dalí Was Not Woman’s Father, DNA Test Shows.

Deaccessioning Podcast

Featuring Deaccessioning Hall of Fame scholar-in-residence Brian Frye.

"Bizarre Pollock forgery scam"

Details here.

Bizarre as they are, Tim Schneider points out that "narrative is only a few fractions of an inch ballsier than a narrative that suckered multiple high-level collectors in New York and other industry hubs for decades" -- i.e., the Knoedler forgeries.

The logical endpoint of the anti-deaccessioning position (UPDATED)

LA Times art critic Christopher Knight has a solution to the Berkshire Museum's financial difficulties:

"Don’t sell the art. Do close the museum. Start behaving like the charitable institution you are supposed to be. Spend the next several years responsibly overseeing the dispersal of the collection."

Let that sink in, folks.  This is what the Deaccession Police believe.  (Another example here.)

They would rather a museum close than sell a single work.  (The sale of 400 works, on the other hand, just with a different use of proceeds -- that's perfectly fine.)

Previous discussions of Knight's contributions to the deaccessioning debate here and here.

UPDATE:  "With friends like Knight, the AAM and AAMD hardly need enemies. Hopefully, the dogmatism of the deaccessioning police will finally encourage more sensible minds to consider the actual consequences of the dogma."

"For most litigants, however, the ruling seems to reinforce the sensible view that a defendant should not waste its time with a 12(b)(6) motion on fair use unless its 'aesthetic alterations' to the plaintiff's work are immediately apparent and compelling."

Bob Clarida and Robert Bernstein in the NYLJ [$] on Richard Prince's latest.

Tell me again about the public trust (more than 400 photos from MoMA edition)

MoMA is selling more than 400 photos from its collection at Christie's over the next nine months.

I thought I very recently read somewhere that "one of the most fundamental and longstanding principles of the museum field is that a collection is held in the public trust and must not be treated as a disposable financial asset," but I must be mistaken.  If that were true, this sale could not be happening.

You might also think that the sale of these four hundred works "sends a message to existing and prospective donors that museums can raise funds by selling parts of their collection, thereby discouraging not only financial supporters, who may feel that their support isn’t needed, but also donors of artworks and artifacts, who may fear that their cherished objects could be sold at any time to the highest bidder to make up for a museum’s budget shortfalls."  But again, you'd be mistaken.

These are funny "principles."  Apparently they only apply some of the time.

Groundhog Day

I’ve basically been avoiding the latest deaccessioning controversy, in large part because it’s all so depressingly familiar – the usual suspects compete with each other to see who can seem the most outrageously outraged by the outrageous violation of the “ethical” code of those learned ethicists at the AAMD, and then some sane voices arise in response but are simply ignored.  So, as my contribution to the “discussion,” let me call attention to a few of those saner voices in particular.

First, a new member of my Deaccessioning Hall of Fame:  Mass MoCA’s Joe Thompson, who notes that the decision has “drawn more than its fair share of criticism that is at once overwrought and seemingly oblivious to stark facts, which reminds me of the powerful effect of art on even the most generous and considerate of souls, many of whom are friends and respected colleagues,” says “Let's get real: The museum's survival is at stake,” and closes with:  “The dedicated staff and trustees of the Berkshire Museum are not ‘douchebags’ or ‘plunderers’ or ‘phantoms’ or ‘treasonous.’ They are smart, hard-working professionals and attentive, generous volunteers who are tending one of our region's most important institutions at a precipitous moment in its history.” I would add that they’re not repulsive or Stalin-esque either.

Next is Brian Frye (who will be the first scholar-in-residence once we open the Hall of Fame):

“[T]he AAM and AAMD tacitly admit that there is no legal prohibition on museums selling artworks and using the proceeds for anything they like. But they argue that selling artwork for any purpose other than buying more artwork is ‘unethical.’ Why? It is unclear and unstated. Apparently, the AAM and AAMD think it would be ‘unethical’ for a museum to sell an artwork in order to, say, fund free admission or sponsor community arts activities. Or, as in the case of the Berkshire Museum, to prevent bankruptcy and chart a new institutional direction.  They can't be serious. Indeed, merely stating their argument exposes its absurdity. As the museum and its supporters have argued, the museum's decision is not only ‘ethical,’ but also probably required by the board's fiduciary duty to the organization.”

And last, Tim Schneider says the outrageous outrage in response to the move is “an ideologically pure, dependably crowd-pleasing position to take,” but “its naiveté also makes me want to start throwing large objects long distances out high windows.”

"Is the art world's conventional wisdom on copyright infringement and fair use driven by nature of the use or the nature of the parties?"

"In other words, does the art world simply think it is fair use if an 'artist' (i.e. insider) copies a 'professional' (i.e. outsider), but infringement if it is the other way around? Zaretsky implies the answer is 'yes.' And I am inclined to agree with him. If anything, the infringement case against Prince is stronger than the cases against LG and Jenner. And yet the art world (mostly) seems to think that LG and Jenner are infringing, but Prince is not. In other words, artists want the right to copy others, but also the right to stop others from copying them. Understandable, but not terribly compelling."

Brian Frye at the Faculty Lounge, responding to my post from last week.

"Canada Debates Whether Gift of Leibovitz Photos Is Also a Tax Dodge" (UPDATED)

The New York Times has the story here.  Michael Rushton has some Twitter thoughts starting here.

UPDATE:  "A Canadian government panel has decided against certifying an entire collection of 2,070 photos by the photographer Annie Leibovitz as culturally significant, as had been sought for tax purposes by the Art Gallery of Nova Scotia, the museum that owns them."

Keeping Up (UPDATED)

In what I believe is the first appearance by a Kardashian at the blog (not counting Kanye), artist Sarah Pope has brought a copyright infringement suit against Kylie Jenner.  Story here.  The Daily Beast story includes the following:

"'Copyright doesn’t protect ideas but it does protect expression, and there are a lot of similarities between Pope’s image and Jenner’s beyond the idea of a neon mouth,' Robert Clarida, an intellectual property lawyer and author of the treatise Copyright Law Deskbook, told The Daily Beast. 'This is a pretty strong case and one that would have to go to jury, and that’s bad news for Kylie because as a defendant you want to get it thrown out on a motion to dismiss or on summary judgment. But this case wouldn’t lend itself to that.'"

Brian Frye tweets:  "In theory, I don't see how the concept of a lip bite surrounded by neon can be copyrightable subject matter. But no predicting courts."

My question, again, is:  Can you think Richard Prince should win but Kylie should lose?  Can those positions be reconciled?  Or do the two cases stand or fall together?

UPDATE:  Settled.

"As the court notes, cases finding fair use at the motion to dismiss stage are rare."

Venkat Balasubramani:

"I’m intrigued by the decision by Prince’s lawyers to file a motion to dismiss. That seemed like a long shot here, but perhaps they were hoping the court would take the opportunity to convert the motion into one for summary judgment."

In the same post, Eric Goldman adds:

"Prince’s failure to win the fair use defense here isn’t very surprising. His fair use defense will get more traction on the summary judgment motion (though there are no guarantees of victory). However, to me, the adjudicatory costs of a fair use defense are one of its weaknesses. Prince may be able to afford the litigation costs, but many mom-and-pop content producers will fold long before the case can get to summary judgment or trial."

"He is up front about the fact that his proposed catalogue raisonné addition 'has no connection to the official Andy Warhol Catalogue Raisonné sponsored by the Andy Warhol Foundation for the Visual Arts.'"

Richard Polsky is expanding his Warhol authentication services to include an "addendum" to the Warhol catalogue raisonné, which will include "works that have been previously rejected by the Andy Warhol Foundation for the Visual Arts."

"I'm 100 percent sure that they are in Ireland. Hundred percent sure. No doubt in my mind."

Was the IRA involved in the Gardner Heist?

Bananas

I'm a little late on this one too, but the 9th Circuit heard oral argument in the ridiculous monkey selfie lawsuit last week.  It sounds like it didn't go so well for the monkey side:

"'There is no way to acquire or hold money. There is no loss as to reputation. There is not even any allegation that the copyright could have somehow benefited Naruto,' said Judge N Randy Smith. 'What financial benefits apply to him? There’s nothing.'

"At one point, Judge Carlos Bea considered the question of how copyright passes to an author’s heirs.

"'In the world of Naruto, is there legitimacy and illegitimacy?' Bea asked. 'Are Naruto’s offspring "children", as defined by the statute?'

...

"The lawyer for Slater’s publisher, which is also a defendant, also raised the question of whether Peta has even identified the right monkey – something that Slater [the photographer] disputes.  'I know for a fact that [the monkey in the photograph] is a female and it’s the wrong age,' he said. 'I’m bewildered at the American court system. Surely it matters that the right monkey is suing me.'"

Speaking of appropriation

Donald Graham's daughter had this to say about Richard Prince's use of her father's work:

"That Richard Prince stole his work for his crass commercial purposes is not only against the law, it is an affront, an ugly reminder that successful artists such as Richard Prince believe themselves beyond the law. They can steal now and pay later from their profits."

Actually, that wasn't Graham's daughter at all; it's Lygia Pape's daughter, who just brought an infringement lawsuit against LG Electronics. (I changed a few words.)

The challenge for those seeking to make sense of this area of the law is to distinguish the two cases.  Why are some kinds of appropriation okay and others not?  What is the theory?

Bringing Home the Bacons

Three of them, at least.  Story here.  Background here.

"What can account for this peculiar set of rules, which seem to prevent museums ... to take actions that are not only consistent with, but would often seem otherwise mandated by their charitable purposes?"

At the Faculty Lounge, Brian Frye has some thoughts inspired by the fact that most museums can only show 2-4% of their collection at any given time.  And he teases an upcoming article tentatively titled "Deaccessioning Norms are Unethical."  I love it already.

"How much can you conserve an artwork before it becomes something entirely different?"

"This question is at the heart of a lawsuit filed in New York earlier this week by the artist Cady Noland."

Motion to dismiss denied in Prince-Graham fair use case (UPDATED)

I was on a plane all day yesterday, so am a little late getting to this.  Laura Gilbert has the story in The Art Newspaper.  For background, start here.  More later after I've had a chance to read the decision.

UPDATE:  Okay, I've had a chance to read it.  It's a long opinion, but it can basically be boiled down to: the fair use question is "a fact-sensitive inquiry that cannot be completed ... on a motion to dismiss."  That's it; that's all there is to it.  "[B]ecause the Court can only review the narrow set of facts that appear in the Complaint and its appended exhibits -- and because all of the plausible factual allegations contained in those documents must be viewed in the light most favorable to [Graham] -- the Court cannot conclude that any of the four fair use factors favors [Prince]."

"Graffiti Artists Are Increasingly Lawyering Up to Fight Fashion Copycats"

From The Fashion Law Blog.

Should an artist's testamentary direction to destroy unfinished work be honored? (UPDATED)

From the New York Times, the case of Edward Albee:

"'It presents a moral and legal quandary,' said John Sare, a partner at Patterson Belknap Webb & Tyler and the co-author of 'Estate Planning for Authors and Artists.' 'You may feel a moral obligation to do as you’ve been asked, but that may be in competition with a moral obligation to do what’s best for the history of arts and letters and a legal obligation to conserve the assets of the estate for the beneficiaries.'

"Eva E. Subotnik, an associate professor at St. John’s University School of Law, argued for some skepticism about such provisions.  'There is something special about these kinds of assets — they’re not just like a mansion or a fancy watch, but they’re socially valuable, and that has to play into the calculus,' Ms. Subotnik said. 'I definitely argue against full-throttle enforcement of artistic control after death.'

"But another expert on the subject, Lior J. Strahilevitz, a professor at the University of Chicago Law School, disagreed. 'Part of what we value in a great artist is not just raw ability but the ability to curate, and it’s frequently the case that artists build great reputations by being selective about what they show to the world,' he said. 'It’s problematic to force Albee to share these plays when he didn’t think they were good enough.'"

UPDATE:  Sergio Muñoz Sarmiento connects this to another current controversy over artistic control -- David Mamet's discouragement of post-show discussions -- and says:  "Why is it that if an artist wants to control her artistic property or, god forbid, destroy it, the general public seems obliged to shriek and criticize the artist? Why is it that this public thinks they know better than the artist as to the artwork’s fate and, more so, that they have some “right” to read or view it?"

Ann Althouse agrees:  "Mamet doesn't need to prove that there's something objectively wrong with post-show talks. He's the artist, and he's determining how he wants his play shown."

We all know about the rejoining-its-sister exception to being held in the public trust, right?

Katya Kazakina:  MoMA Sells Rare Masterpiece.

It's a nine-foot tall Leger mural, which was commissioned in 1938 by Nelson Rockefeller for his new apartment.  He also commissioned another mural by Matisse at the same time, which is now owned by the Museum of Fine Arts, Houston, which was the buyer of the Leger (for in the neighborhood of $6 million).

So, because the two murals are being "reunited," obviously the Leger was no longer held by MoMA in the public trust, to be accessible to present and future generations.  And obviously potential future donors will not hear about this sale and ask, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?  Just check the fine print in your Deaccession Police manual, under "R" for reuniting companion works.

One other interesting thing about the sale reunification:  it was a private sale, at Art Basel, rather than, as is more typical when museums sell, at auction.  David Norman is quoted as saying "'sometimes museums also place works privately' with dealers if they have clients willing to pay higher prices."  My question is: how do you know the price the client is willing to pay is "higher" unless you put it up at auction?  How do we know there wasn't someone else out there willing to pay more than $6 million for the work?

"The bill comes with the blessing of more than 100 organizations, including some of the most prominent art schools in the country" (UPDATED)

Brian Boucher reports on the proposed American Arts Revival Act, which "would assist arts workers nationwide in paying down their student debt."  More from Jillian Steinhauer here. Paddy Johnson says: "I see no chance of this ever passing."

UPDATE:  Michael Rushton tweets:  "This is (1) inequitable across students carrying debt, and (2) creates all manner of moral hazard problems. If the state wants to support artists and arts presenters, do so directly. Stay away from narrowly focused, discriminatory, gimmicky aid."

"Collector sues Christie’s for cancelling David Hammons sale"

Dan Duray has the story in The Art Newspaper.

"The dispute dates to March 11 when five staff members sent a letter to the board accusing Mr. Dadone of misdirecting funds intended for educational programs, failing to deliver on programs promised to donors, violating labor laws and engaging in a pattern of abusive behavior toward subordinates."

NYT:  Mass Resignations Embroil Boulder Museum of Contemporary Art.

Awards for Fearless Girl!

For, er, advertising:

"Clark also cited the business results for State Street, including a 374 percent increase in the size of the so-called SHE fund—State Street’s SSGA Gender Diversity Index."

"Exhumation of Salvador Dalí’s Body Ordered in Paternity Case"

"Pilar Abel, a Tarot card reader, wants to be recognized as Dalí’s daughter, born as a result of what she has called a 'clandestine love affair' that her mother had with the painter in the late 1950s in Port Lligat, the fishing village where Dalí and his Russian-born wife, Gala, built a waterfront house."

"Art Forger Is Accused of Selling Fake Prints. Again."

"Just 15 days after being released from prison, a ubiquitous forger started selling phony art again, the authorities said."

Motion to dismiss denied in Golub fraud case

Story here.  For background, start here.

"In the cultivated Hamptons, this is a vile act of desecration against art.”

Larry Rivers's "Legs" sculpture in Sag Harbor was recently vandalized by red paint.  Page Six has the story here.

Coincidentally, the Center for Art Law is hosting a screening of a documentary on the piece ("Legs: A Big Issue in a Small Town") on June 22, with a panel discussion, moderated by Adelaide Dunn (Advanced Topics in Art Law Class of 2016), to follow.  Register here.  An article by Dunn on the film is here.  Trailer here.  Facebook event page here.

Fake News

A show of (and on) fakes, at the Winterthur Museum.

Here's what can happen when you say a work is fake

Dealer Gerald Peters is "suing one of the world’s largest Western American art auctions, a Nevada gallery and others for defamation, accusing them of falsely claiming a $1 million painting he sold is a fake."

Art Basel Sues Adidas

Art Newspaper story here.

"The truck was parked outside his studio in Long Island City. The next day, when he went outside, the truck was missing."

"A sculpture made to debut in the Taubman Museum of Art’s atrium Thursday was stolen from outside the artist’s New York studio, museum officials said."

"I'm brave enough to call it a Jackson Pollock and put my entire reputation on it."

The Arizona Republic:  Painting pulled from Arizona garage may be a Jackson Pollock worth $10 million.

The Art Market Monitor says "the story seems plausible until you get to his experts. Peter Paul Biro came to prominence through his claims to have discovered Leonardo’s finger prints in the pigment of a painting."

For more on Biro, see here.

Apparently, in Italy, museum directorships are held in the public trust

See here.

Sauce for the goose

"Pissed-off artist adds statue of urinating dog next to ‘Fearless Girl.'"

"Gardner Museum Doubles Reward for Recovery of Stolen Masterpieces"

To $10 million.   I'm trying to imagine the person who had relevant information who wasn't interested in sharing it for $5 million, but now, for $10 million, is finally ready to speak up, but I guess you never know.

An effective altruism analysis of Mike Bloomberg's $75 million donation to The Shed

From Felix Salmon.

"Often you never really know which art pieces are genuine and which are not."

A museum of fakes, in the Netherlands.

"There’s no officially sanctioned art-industry watchdog in the vein of the SEC, or even a universally accepted set of best practices for sellers and representatives to abide by."

"Yet all of the normal laws of commercial transactions still apply."

Tim Schneider on the myth that the art market is "unregulated."

Fair Enough

Sergio Muñoz Sarmiento calls attention to an interesting student note on the College Art Association's "Code of Best Practices in Fair Use."

I had some thoughts on the usefulness of the Code here.

Fake News

Vanity Fair:  The Art Market’s Modigliani Forgery Epidemic.

"On it's face, it's extremely suspicious. There has to be a reason someone would want to destroy this painting."

Suspicious man uses knife to destroy $3 million painting in Aspen gallery.

"If what di Modica is proposing that the city do seems familiar, it is because there is a succinct term for it: censorship."

Nicholas O'Donnell in Apollo magazine: Why this fearless girl should stand her ground.

Recommended

The Met has recommended suggested "filed a formal proposal" with the city to begin charging admission to out-of-state visitors.  Robin Pogrebin has the story here.  For background, I recommend suggest you start here and here.

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.

"Their theory for now is that the thieves dragged the coin through the museum, out the window and then along the railway track, possibly reaching a park on the opposite bank of the river near the Hackescher Markt, a public square in Berlin that is home to a number of late-night bars and cafes."

Thieves stole a 220-pound gold coin -- about the weight of a refrigerator -- from a museum in Berlin.

"Edelman Arts, the company of former Wall Street financier turned art dealer Asher Edelman, filed a lawsuit seeking to complete a $26.8 million sale of four works by Keith Haring and one by Edvard Munch."

Story here.

Do we need more security at museums?

Earlier this month, a visitor to the National Gallery in London slashed a Thomas Gainsborough painting.  (It went back on view yesterday.)  Noah Charney has a suggestion:

"There is no such thing as a risk-free museum, but there is a way to minimize risk of damage and theft, a way that many top museums have chosen (the Louvre, the Prado, the Van Gogh, the Uffizi, to name a few), but which the National Gallery has not — install airport-style security at the entrance. It is a modest inconvenience to museum-goers, but one that they will be used to, from travel in this day and age: moving single-file through a metal detector and having their bags scanned before entering the museum to explore freely. This method would prevent attacks with metal objects, like knives and screwdrivers, and would be a strong deterrent to any attacks at all — potential perpetrators are likely to be scared off by having to pass under the scrutiny of security and move slowly into the museum, clearly filmed on CCTV, and with nervous or suspicious behavior likely to be noted before they even enter. In an era of concern over terrorist attacks on populous sites, this is also a good idea. Of course, a determined baddie can still find ways to damage art, but the risk is mitigated."

"Prosecutors seek 4 years for ex-Field Museum worker who stole nearly $1 million"

Story here.

Could blockchain pave the way for resale royalties? (UPDATED)

Interesting discussion here.

UPDATE:  Michael Rushton tweets:  "That there might be a technology for facilitating it does not make resale royalties a sound idea."

Artist convicted of murder

South African photographer Zwelethu Mthethwa, represented by Jack Shainman Gallery.  Story here.

Held in the public ruff

The Museum of the Dog is coming to New York.

"The jury could have determined that the actual use made by Defendants of the Plaintiff's work was worth $75,000 per infringing copy."

Findlaw:  Sculptor Wins Big in 9th Cir. After Billionaire Copies His Work.

Decision here.  Background here.

"Art Dealer Ordered to Repay Profits From Painting Sale"

Story here.  Decision, by Justice Ramos, here.

Lawsuit Over Stolen Johns Drawings

Artlyst:  "A Canadian gallery has brought a federal complaint against a New York art dealer alleging he tried to give works by the American ‘Pop’ artist Jasper Johns official provenances."

This arises from the theft of works by a longtime studio assistant of Johns, which resulted in an 18-month prison sentence for the assistant.

Greg Allen says the new suit "is bonkers. Dorfman [the dealer] is in deep, pocketed millions, yet not in jail."

"Selfie Snapper Smashes Kusama Pumpkin Sculpture at Hirshhorn Museum"

Story here.  Will Goetzmann tweets that's a "[r]isk of people interacting [with] art. Her work is engaging and fun. Keep it accessible."

"Removal of Student Painting in Capital Leads to Federal Lawsuit"

New York Times story here.  Analysis from First Amendment scholar Eugene Volokh here.

Eight Years for Spider-Man

NYT story here.

"Rubin Museum of Art co-chair claims couple conned her into paying $18M for knockoffs of ancient Indian jewelry"

Daily News story here.  "'While Rubin was quite knowledgeable about various art forms, she had no particular expertise in jewelry,' the suit says."

"We’re looking at each other, and we’re like, ‘I think he just stole those? We should probably do something.'"

The Boston Globe:  Attempted art heist foiled by BU students.

"I think you've been leading a fraudulent life for a very long time."

"A Michigan art dealer was sentenced Thursday to more than three years in prison for what prosecutors said was an extensive scheme to sell fake works purportedly by renowned artists."

"Sotheby’s called it 'undoubtedly a forgery' based on research conducted by Orion Analytical, a scientific analysis firm that Sotheby’s acquired last year"

NYT:   Sotheby’s Files Second Lawsuit Over Works It Calls Fake.

"[Orion's] Mr. Martin said that he took 21 paint samples from many different areas of the paint layer and found the 20th-century pigment throughout the work, including in areas of the painting that were never restored. 'It’s a bit like taking the pulse of a corpse 21 times,' he said."

"If you are not going to charge for admission you have to find a way to support it."

Charles Saatchi is selling off 100 works from his art collection to help fund free admission to his gallery.

Of course, if a U.S. museum did this in order to provide free admission, there would be rioting in the streets. As Tim Schneider points out:

"Saatchi's sell-off represents one clear advantage their founders hold over public nonprofit institutions. In the US, influential professional associations like the AAMD ... hold that it's cultural sacrilege to deaccession even a single work to cover operational costs, let alone more than one... despite that they also judge it A-OK to divest pieces in order to bankroll new acquisitions. ...  That may not make private museums better places to appreciate art than public ones. But in at least one important respect, it does empower them to run as better businesses."

"All images of public-domain artworks in the Metropolitan Museum of Art’s collection — about 375,000 — are now free for anyone to use however they may please."

"The museum announced on Tuesday that it had changed its open access policy to allow free, unrestricted use of any images of artworks in the public domain, using the license designation Creative Commons Zero."

"In an unusual case that marks the second time in recent years that an artist has been pressured over a failure to authenticate a work ..."

"... actor David Spade has filed a lawsuit against photographer Peter Beard, his wife Nejma, and former Beard dealer Peter Tunney over a work he purchased 15 years ago and is currently trying to sell."

It's hard to tell exactly what's going on, but this seems like a much more complicated case than Peter Doig's. Spade apparently bought the works from Tunney's Time Is Always Now gallery, which, at one Time (but not Now), clearly represented Beard.

"I threw away $100m of Picasso and Matisse art, says dealer in Paris theft trial."

"Neither the investigating judge nor other defendants at the trial believe Birn’s claims."

"Ms. Rosales, I’m not putting you back in jail."

The NYT:  Dealer in Art Fraud Scheme Avoids Prison:

"In her sentencing, the judge, Katherine Polk Failla of Federal District Court in Manhattan, cited defense arguments that Ms. Rosales had been intimidated and abused by her former boyfriend, who is also charged in the case and whom the defense described in court papers as the mastermind of the scheme. She also feared being separated from her daughter, according to the defense."

"Ms. Bruguera, one of the marquee artists in the new lineup, said ... that she did not want her work to be included in the show because she felt that Ms. Block’s exchange initiative relied too closely on the Cuban government, which she opposes."

NYT:  Artist Pulls Her Work From Bronx Museum of the Arts Cuba Exhibition.

"The livestream is part of Mr. LaBeouf’s latest art project, 'He Will Not Divide Us,' a collaboration with the artists Nastja Sade Ronkko and Luke Turner."

"The actor and performance artist Shia LaBeouf was arrested early Thursday morning on misdemeanor assault and harassment charges while protesting President Trump at a livestream art installation in Queens."

"This is the second painting that has been deemed a fake in what may be a widening old masters’ forgery case that could go back several years."

I'm a little late on this one, but Sotheby's is suing a collector who consigned what was thought to be a Parmigianino to it in 2012.  It sold for $842,500.

Tim Schneider connects the story to some other recent Sotheby's-related news:  "The testing that pegged 'St. Jerome' as counterfeit was performed by Orion Analytical, the scientific-research firm that Tad Smith and company just acquired last month to help combat the industry's persistent forgery problem. While the house undoubtedly would have preferred to uncover the foul play pre-sale, the Parmigianino case doubles as a niche marketing opportunity. If you're a dealer or collector specializing in artwork of ANY past era, wouldn't you prefer to do business with Sotheby's––the auction house that can now definitively prove the legitimacy of the works it offers as a normal part of the consignment process––instead of Christie's, which has made no obvious effort to update its practices on this potentially costly front?"

Motion to dismiss in the Golub fraud case

Story here.  Background here.

"To the dismay of many street artists, it remains unclear whether copyright law affords protection for unauthorized street art."

Hughes Hubbard & Reed's Lena Saltos and Angela Lelo:  Unchartered Territory: Enforcing An Artist's Rights In Street Art.

Tell me again about the public trust (two key post-war works edition)

MoMA is selling a Dubuffet and a Mathieu.

"Théorème d’Alexandroff entered Moma’s collection in 1964 as part of a bequest from the American lawyer Samuel Rosenman; the Dubuffet work was bequeathed to the museum in 1990 by Mary Sisler."

That's interesting, because I thought I heard that (part of) the rationale for the AAMD position on deaccessioning is a concern with the message sales can send to potential donors:  Why wouldn't somebody say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?

I must have misheard.

"Paddle8, the online auction house which merged with now-embattled competitor Auctionata last May, has secured an investor to buy it out for an undisclosed amount ..." (UPDATED)

". . . while its parent company Auctionata AG has filed for preliminary insolvency, representatives for both firms confirmed today."

UPDATE:  Tim Schneider:  "Auctionata and Paddle8's ... difficulties suggest that the real flaw here is the midlevel digital-auction business itself. All the signs suggest that the market niche just isn't growing fast enough to sustain these two firms, either independently or combined. So regardless of whether Auctionata re-capitalizes or Paddle8 buys its freedom, it's plausible that neither will be long for this world. Online auctions––and online art sales more generally––may be the future. But sometimes the future is still too distant to save us."