The Second Circuit has affirmed the dismissal of the VARA suit over the removal of a sculpture from Trinity Church in downtown Manhattan.
In discussing the dismissal by the District Court, I said:
"The artist had the additional difficulty that he signed a contact [which said] Trinity will have the right to complete, exhibit and sell the Sculpture if it so chooses [and that 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."
The Second Circuit noticed that too:
"Here, Tobin argues that Trinity impermissibly modified his work, in violation of VARA, when it relocated the sculpture from Trinity Church in lower Manhattan to a seminary in Connecticut. He asserts that the sculpture is site specific, and was created for its original location at Trinity Church. Thus, he argues, by moving the sculpture, Trinity has violated the integrity of the piece, However, in a written agreement signed by the parties prior to the sculpture’s installation, Tobin affirmed 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.' Because either of these actions would require Trinity to physically move the sculpture, we conclude that Tobin waived any right he may have held under VARA to maintain the piece specifically at Trinity churchyard. Tobin 'expressly agree[d]' to this 'use[] of [his] work,' in conformance with the waiver requirements of VARA. 17 U.S.C. § 106A(e)(1). Accordingly, dismissal of Tobin’s claims premised on the modification resulting from the relocation of the piece was appropriate."
Wednesday, August 29, 2018
Thursday, August 23, 2018
Thursday, August 09, 2018
"So here’s the upshot: in a resale royalties scheme, 99% of artists will likely lose, so that the top 1% can win. This reverse-Robin Hood story is not some bug in the system -- it is its main feature."
Chris Sprigman and Guy Rub make the case against resale royalties for artists:
"We collected data representing all sales at public auctions conducted by Sotheby’s and Christie’s during March and April 2018. We examined how resale royalties from those sales would have been distributed if the so-called ART Act, the last bill attempting to enact resale royalties on a national level, was in place. The results are telling.
"If the ART Act had been law, 683 transactions by Sotheby’s and Christie’s in those two months might have been subject to resale royalties payments. Those sales ... would have generated royalty payments totaling over $2.3 million. A nice sum, but for whom?
"For the rich, and, in particular, for the rich and dead. Most of the royalties (57%) would have been paid to the estates of deceased artists, typically very famous ones. That list is dominated by some of the most prominent artists of the 20th century: artists who, on top of being critical and popular favorites, were wealthy in their lifetimes and left fortunes to their heirs. ..."
"So it’s clear that top-tier artists and their heirs make out like bandits under a resale royalty scheme. It’s also clear who doesn’t: young artists. There is not a single living artist in his or her twenties in our data who receives a resale payout. Total royalties for living artists in their thirties is only $6,813, or 0.29% of all royalties. Even artists in their forties are largely shut out. The top earner under the age of 50, the 49-year-old Shahzia Sikander, would have made just $5,125. In fact, all artists under 50, together, would have made only $52,906 in those two months, which is just 2.28% of all royalties, and about one-sixth of what the Andy Warhol Foundation alone would have reaped."
It's a pretty convincing argument against the ART Act ... but I still think there's a version of a resale royalty scheme that may make sense (which one day I'll try to spell out in more detail).
"We collected data representing all sales at public auctions conducted by Sotheby’s and Christie’s during March and April 2018. We examined how resale royalties from those sales would have been distributed if the so-called ART Act, the last bill attempting to enact resale royalties on a national level, was in place. The results are telling.
"If the ART Act had been law, 683 transactions by Sotheby’s and Christie’s in those two months might have been subject to resale royalties payments. Those sales ... would have generated royalty payments totaling over $2.3 million. A nice sum, but for whom?
"For the rich, and, in particular, for the rich and dead. Most of the royalties (57%) would have been paid to the estates of deceased artists, typically very famous ones. That list is dominated by some of the most prominent artists of the 20th century: artists who, on top of being critical and popular favorites, were wealthy in their lifetimes and left fortunes to their heirs. ..."
"So it’s clear that top-tier artists and their heirs make out like bandits under a resale royalty scheme. It’s also clear who doesn’t: young artists. There is not a single living artist in his or her twenties in our data who receives a resale payout. Total royalties for living artists in their thirties is only $6,813, or 0.29% of all royalties. Even artists in their forties are largely shut out. The top earner under the age of 50, the 49-year-old Shahzia Sikander, would have made just $5,125. In fact, all artists under 50, together, would have made only $52,906 in those two months, which is just 2.28% of all royalties, and about one-sixth of what the Andy Warhol Foundation alone would have reaped."
It's a pretty convincing argument against the ART Act ... but I still think there's a version of a resale royalty scheme that may make sense (which one day I'll try to spell out in more detail).
Monday, August 06, 2018
The Times had a critical piece yesterday on donor-advised funds ...
... which are commonly used in the art world. The story is here.
Harvard's Greg Mankiw (convincingly) finds it "unconvincing":
"The headline and tone of the article suggest something nefarious is going on. But unless you think that future charitable spending is less admirable than current charitable spending, nothing of the sort is the case. ... [T]he donor of the funds cannot get the money back to finance his consumption or that of his heirs. The money has to eventually go to IRS-approved charities. Putting money into a DAF is essentially a commitment to give that part of your wealth, plus all future returns on it, to charity. As such, DAFs should be applauded."
Harvard's Greg Mankiw (convincingly) finds it "unconvincing":
"The headline and tone of the article suggest something nefarious is going on. But unless you think that future charitable spending is less admirable than current charitable spending, nothing of the sort is the case. ... [T]he donor of the funds cannot get the money back to finance his consumption or that of his heirs. The money has to eventually go to IRS-approved charities. Putting money into a DAF is essentially a commitment to give that part of your wealth, plus all future returns on it, to charity. As such, DAFs should be applauded."
Sunday, August 05, 2018
"Split decision in lawsuit over forged paintings sold by ex-Franklin Pierce professor and her son"
Story here:
"In a detailed ruling, U.S. District Court Judge Steven McAuliffe dismissed the warranty claim Hall had brought, concluding that because the case was brought four years after the purchase of the art, that was too late. ... But McAuliffe declined the bid of the Gascards to dismiss the other three charges, fraud, conspiracy to defraud and unjust enrichment. ... 'Hall, on the other hand, has pointed to sufficient facts which, if credited as true, would permit a jury to conclude by clear and convincing evidence that the Gascards knew the paintings at issue were forgeries (or, at a minimum, that they were consciously indifferent to that fact),' McAuliffe wrote. The decision means those three remaining counts are on a path to go to trial later this year."
Background here.
"In a detailed ruling, U.S. District Court Judge Steven McAuliffe dismissed the warranty claim Hall had brought, concluding that because the case was brought four years after the purchase of the art, that was too late. ... But McAuliffe declined the bid of the Gascards to dismiss the other three charges, fraud, conspiracy to defraud and unjust enrichment. ... 'Hall, on the other hand, has pointed to sufficient facts which, if credited as true, would permit a jury to conclude by clear and convincing evidence that the Gascards knew the paintings at issue were forgeries (or, at a minimum, that they were consciously indifferent to that fact),' McAuliffe wrote. The decision means those three remaining counts are on a path to go to trial later this year."
Background here.
"Adrian Ellis has offered what I think is one of the best ways to address the deaccessioning dilemma."
Museum consultant Bob Beatty has a piece up at Hyperallergic on "the deaccessioning debate in museums." As evidenced by his approving citation of the Ellis Rule, he seems to be in favor of a loosening of the "ethical" prohibitions on deaccessioning, but also seems keen to avoid the ire of the tomato throwers, so he's pretty subtle about it all.
"Decision should put decade-long legal battle between museum and heirs of art dealer Jacques Goudstikker 'to rest'"
The Norton Simon-Von Saher litigation, which I wrote about for the Journal of Art Crime all the way back in 2010, appears to finally be over.