Thursday, April 19, 2018

"In a case that is bound to rock the art world, a prominent New York collector and art patron has sued two giants of the art market in New York Supreme Court this morning ..."

". . . charging the Gagosian Gallery, Inc. and Jeff Koons, LLC for the 'non-delivery' of three multimillion-dollar Jeff Koons sculptures for which the collector has paid more than $13 million."

"The Berkshire Museum saga is headed toward a happy ending"

The Boston Globe's Jeff Jacoby (seen earlier here) cheers the outcome of the Berkshire Museum dispute, saying "it looks as though the Berkshire will weather the storm and remain a lively presence in Pittsfield for years to come" and adding: "Yet the art snobs seem, if anything, even more outraged."

Deaccession Police Captain Christopher Knight (who had been singled out in Jacoby's earlier column on the subject) responds on Twitter:  "Calling art lovers 'snobs' is a familiar redoubt for the ignorant."

To which Jacoby responds:  "Your advice for the Berkshire Museum, Christopher Knight, was that it close down & be cannibalized by other museums. The pain that would cause Pittsfield you shrugged off: 'If its community cannot sustain the museum, not much can be done.' I'd say 'snobs' is putting it mildly."

Here's a link to the Knight column in question (which I discussed earlier here), which includes the following:

"Here's an idea: 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.

"Donate the art to other museums that would benefit most from having it. ... Because the state gives the Berkshire Museum a subsidy through tax breaks, in addition to its federal one, Massachusetts has a priority stake; so its many other museums should get the first (but not the only) consideration for gifts.

"Shields [the museum's director] has said that, without the sale, the institution can't survive beyond the next eight years. That affords plenty of time to unwind the Berkshire Museum, an honorable task at least as hard as conceiving a last-ditch overhaul with no guarantee of success.

"Drastic, I know. And a sad loss for Pittsfield. It would be a psychic blow to a city that still struggles economically.

"But the hard truth is that if its community cannot sustain the museum, not much can be done."

Monday, April 16, 2018

Tell me again about the public trust (Baltimore Museum of Art edition)

The Baltimore Museum of Art is selling works by five artists you might have heard of:

Andy Warhol
Robert Rauschenberg
Franz Kline
Kenneth Noland
Jules Olitski

That's a pretty good list.

I checked with Deaccession Police headquarters and here's what you need to know about these sales:

Relax.  It's no big deal.  Don't be so touchy.  Yawn.

Now, you may have heard that "once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations."  But that is a damn lie.  Just think about it:  if these seven works were held in the public trust, then they couldn't be sold.  And clearly they can be sold, so obviously they are not held in the public trust and never were.  Pay attention people.

You may also be wondering if potential future donors to the museum might, upon hearing this news, ask themselves "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"  But that's a ridiculous question.  The answer is, no, they won't ask themselves that.  Why would they ask themselves that?  What is wrong with you?  Don't you know anything about the way ethics work?

So, just to review:

A sale of seven works -- by Warhol, Rauschenberg, Kline, Noland, and Olitski -- to who knows where:  totally fine, no big deal, just shut up.

A sale of one work by a museum in Pittsfield, Massachusetts to another museum in Los Angeles, California:  a tragedy.  Months and months of protests and non-stop press coverage and lawsuits and anguish and tears.

Yeah, that all makes sense.

The monkey selfie case is back on

The Ninth Circuit plans to issue its ruling, despite the parties' settlement.  Story here.  Background here.

At PrawfsBlawg, Howard Wasserman says "now we will get to see if Naruto loses on the merits (as he should, because the scope of a statute is a merits issue) or on standing grounds (as the argument sounded the court was heading)."

"The crime has remained unsolved since it occurred in 1988; no arrests have been made, and none of the artworks have surfaced"

"Until now."

Saturday, April 14, 2018

The Ellis Rule in Action

Those who are deeply, deeply concerned that works, once held in the public trust, remain held in the public trust must have been happy to have it confirmed this week that the Lucas Museum was the buyer of Rockwell's "Shuffleton's Barbershop" from the Berkshire Museum.

I kid, of course.  They're not happy at all.  But imagine this one sale was all the museum needed to solve its serious financial trouble.  (Not too big a stretch, actually:  the purchase price was not disclosed, but Sotheby's had previously estimated it at $20-30 million.)  It's hard to see how anybody could object to that.  The museum solves its problem, and the work stays in the public domain.  Sure, maybe the people of the Berkshires "lose" one of "their" many Rockwells, but that's offset by the fact that the (many more) people of Los Angeles gain a Rockwell.  It's a win-win, isn't it?

But you just know that, if that were the whole transaction, the Deaccession Police would be just as outraged as they always are.  It would be unethical.  It would be repulsive.   It would be Stalinesque.  The whole usual drill.

Their utter inability to distinguish between cases -- to see any relevant ethical difference between a sale by a struggling museum to another, better funded museum, on the one hand, and a sale by a flush museum to a private collector to raise funds for day-to-day operating expenses, for example -- suggests that there is something deeply wrong with their approach.  But they're oblivious to it, or at least pretend to be.

Thursday, April 12, 2018

Oral argument in the California Resale Royalties Case

Story here.  You can watch it here (if you're a big preemption fan).

Background here.  Remember this is just about sales within California.  The Ninth Circuit has already ruled that sales outside the state aren't covered by the statute.

Saturday, April 07, 2018

"The copy is the original"

"In China and Japan, temples may be rebuilt and ancient warriors cast again. There is nothing sacred about the ‘original’"

"Biggest Fake Native American Art Conspiracy Revealed"

National Geographic has a detailed look.

"H&M’s battle with the artist Revok shows how street art is being taken seriously"

Good piece (though a couple weeks old) from the Washington Post on the case I mentioned here, including this from NYU's Jeanne Fromer:

"There has been this shift in accepting street art as part of the artistic canon. … As street art has become more and more acceptable, a lot of people are inclined to look past the trespassing aspect in a way they might not have decades ago."

"If a building owner finds itself in a position where it must remove art protected by VARA and no written VARA waiver was obtained, the owner should proceed cautiously and in good faith in the destruction or removal of the art."

"For example, notice should be provided to the artist of the landlord’s intention to remove the art, ample time should be provided for its removal (no less than 90 days), and other accommodations should be made to facilitate the art’s preservation and removal. Though an action for injunction may still ensue if the work cannot be safely removed without destruction, the hope is that any damage award would, at the very least, be mitigated in light of the owner’s good faith efforts. In 5Pointz, maximum statutory damages were awarded because of the landlord’s aggressive actions, which were held to be an insult to the artists."

The latest from the New York Law Journal on the 5Pointz decision.

"Art Dealers Strike Back at Artist Cady Noland in an Increasingly Philosophical Legal Dispute About a Restored Sculpture" (UPDATED)

Julia Halperin has the story here.  Background here.  Apparently one issue in the case is whether the sculpture -- Log Cabin (1990) -- can be copyrighted at all:  "The defendants say that the artistry of the work lies in the idea behind it, not the physical expression .... In fact, they contend, the actual construction of the work is so generic that Log Cabin is impossible to copyright."

Flavin Judd tweets:  "Cady Noland is right, the art dealers are wrong. They are just arguing their 'philosophical' position for profit, not out of any kind of actual conviction."

Postmasters' Magda Sawon agrees:  "This is a no brainer. Team Cady Noland."

UPDATE:  Brian Frye "respectfully disagree[s] in part. The dealers may be 'wrong' in some 'ethical' sense, but their legal argument is pretty solid. The Copyright Office doesn't see any 'original' elements protectable by copyright & neither do I. No VARA rights without copyrightable subject matter."

Agnes Martin Authentication Suit Dismissed

Story here.  Background here.

Artnet's Eileen Kinsella says "that exhalation you just heard is the sound of art authentication boards and catalogue raisonnĂ© authors across the country breathing a sigh of relief."  Yale's Will Goetzmann tweets:  "Landmark decision granting art historians freedom of speech!!!!! Finally some rationality."

While it's certainly good news for artist foundations, keep in mind it's one decision by one lower court (which will probably be appealed).  The best part of the decision for those folks is that the court enforced the legal fees provision in the plaintiff's agreement with the authentication committee:  the next person contemplating bringing such a suit will have to think about not just the possibility of losing, but also of having to pay the foundation's legal fees if they do.  (But given the existence of these clauses in the first place, that's probably something they should have been thinking about all along.)