Saturday, September 14, 2019

“I wish it was a prank,” he said, adding that the story “is deadly serious if even a little bit surreal since the subject of the robbery was a toilet.” (UPDATED)

Maurizio Cattelan's gold toilet was stolen this morning out of an exhibition at Blenheim Palace.

UPDATE:  ARCA:  "All puns aside, and in this case there are many floating around, gold is presently valued at around $1,500 per troy ounce. 18 karat gold is a mixture of pure gold and other metals in the ratio 3:1.  Using that ratio, the toilet would have been made up of 75% pure gold, 15% silver and 10% copper.  Weighing in at 103 kilos of gold (3311.53 troy ounces), once melted down, the smelted gold would be worth $4,967,295 USD."

Thursday, September 12, 2019

"Attack Leaves Wall Street’s Iconic Bull With a Gash on Its Horn"

New York Times story here.

More on the 5Pointz oral argument

From Amelia Brankov here, including the following:

"Significantly, the defendants argue that VARA does not apply to the 5Pointz aerosol works because the underlying protocol at 5Pointz was that the works were generally intended to be temporary and the site curator would allow one artist's works to be painted over by another purportedly without complying with VARA's waiver/notice provisions.  While the judges reserved decision on this (and all other issues) at the hearing, responses from the bench included comments that, if temporary work was not protected, then The Gates, an iconic temporary installation by Christo and Jeanne-Claude in Central Park, would not be protected by VARA, and that even if the artists' rights previously were violated by the 5Pointz curator, that does not mean that the defendants were free to disregard the artists' rights under VARA."

That's interesting.  One of the odd things about the case to me has always been that it seemed to suggest:

1.  Work painted over by another artist (which apparently happened routinely) ... no VARA violation.

2.   The same work painted over not by another artist but by the owner of the property ... VARA violation.

But the appellate judges seem to maybe be suggesting a different answer, namely that they were VARA violations all along, that every time Artist A painted over Artist B's work it was a VARA violation but nobody did anything about it, the relevant norm in the community was to let the violation slide.  But, in theory, they could have sued every time their work was painted over by the next artist up.

Counterpoint:  who knows?  As I said in response to a similar report last week, it can be a mistake to read too much into oral argument.  Let's see what ends up happening.

Mercedes survives motion to dismiss in street art infringement lawsuit

It involves some photos posted on Instagram that showed the defendants' murals.  (The artists are the defendants here because Mercedes brought a declaratory judgment action against them.)  Story here, including a link to the full opinion.  Background here.

The Court went out of its way to emphasize:

"Overall, Mercedes has alleged a plausible claim that section 120(a) of the AWCPA protects Mercedes' right to photograph publically visible buildings which contained defendants' murals.  Whether they will prevail on this claim is not before the Court at this time."

So what is that plausible claim exactly?  It's that murals on the exterior of a building are "part of an architectural work as elements in the [building's] design," that they are "design element[s] of the building."  I suppose that's plausible, but it seems more natural to me to say a mural is painted onto a work of architecture.  There was a similar case about a year ago (although in a completely different posture; the question was not just about the "plausibility" of the claim) which included the following language:

"There is also no indication that the mural was designed to appear as part of the building or to serve a functional purpose that was related to the building. Instead, there is undisputed evidence that Plaintiff was afforded complete creative freedom with respect to the mural, and that the design of the mural was inspired by Plaintiff’s prior work. Plaintiff was not instructed that the mural should play a functional role with respect to the parking garage or that the design of the mural should match design elements of the garage. Indeed, the architecture of the parking garage and accompanying building were already complete before Plaintiff started painting."

I would guess the same is all true of the murals here, though I suppose discovery might prove otherwise.

Tuesday, September 03, 2019

"The complaint asserts that nothing is more antithetical to a street artist’s credibility than association with something as banal and commercial as a grocery store chain." (UPDATED)

artnet news:  A Street Artist Is Suing a Grocery Chain for Allegedly Using His Work in an Oprah-Narrated Super Bowl Ad Without His Consent.

UPDATE:  Brian Frye says "if you paint your work on the side of a building, you can't complain if people photograph it."  But this is part of his larger view that all public art should be fair game (which he reiterates here: "I think if you put your work in public, the public can & should be able to use it however it likes").

"Graffiti-Whitewash Appeal Lands With Thud at 2nd Circuit"

It's sometimes a mistake to read too much into oral argument, but Courthouse News's Amanda Ottaway thinks things did not go well for the developer in the 5Pointz appeal last week.  Her story is here.  As she put it on Twitter, "the real estate developer who whitewashed the graffiti says the artists painted over each other's work all the time, so if he violated the law, they did too."  But (returning to the news story) "the appellate panel was quick ... to push back against [the] argument that ephemeral art might be less than deserving of federal protection.  'There are all kinds of galleries that perhaps you and I don’t go to that have temporary installations,' said U.S. Circuit Judge Barrington Parker."  Background here.

Gagosian-Koons Lawsuit Survives Motion to Dismiss (UPDATED)

Story here.  This is the one with the ouroboros.  A similar suit, by Joel Silver, recently settled after it emerged that it was being funded by Ron Perelman.

More later when I have a chance to read the decision.

UPDATE:  I've read the decision.  There were basically three sorts of claims that survived:

1.  The claim that late delivery is a breach even though the agreement only had an "estimated" completion date.  The Court ruled that "whether the delay constitutes a breach depends on what constitutes acceptable commercial conduct in view of the nature, purpose and circumstances of the action to be taken" -- and that could not be decided on a motion to dismiss.

2.  Claims under the UCC "repudiation" provision.  "Here, Tananbaum sufficiently alleges a repudiation … because he alleges that: (1) after Gagosian repeatedly delayed the Works, Tananbaum made a written demand for adequate assurance of Gagosian's performance; and (2) Gagosian failed to provide that assurance within a reasonable time."

3.  Claims under New York's "multiples" law.  The complaint alleged that Tananbaum "requested an image of and descriptive information about" the two editioned works before entering into the relevant agreements and, the Court said, "I must accept as true Tananbuam's allegation that available information was sought and not given."  It did strike the demand for treble damages because the "conclusory allegation that Gagosian 'willfully failed to disclose information' … is insufficient to sustain [the] demand for treble damages particularly where, as here, Tananbaum alleges that he was represented by an art advisor, and he proceeded with the purchase despite the limited information of which he now complains."  He can seek his money back (plus interest), but that's it.

Wednesday, August 28, 2019

Thursday, August 22, 2019

"It is important to stress that our decision to take this course of action was not made easily or lightly, and it is the only viable solution that will allow for the organization to continue to remain open and serve our community."

The di Rosa's executive director has written a letter in response to the one mentioned here.  He basically says they don't have enough money and the choice now is to either "grow the endowment to provide a sustainable future for the organization" or "close our doors forever."

Anyone who has followed these debates will know that that is an argument that carries no weight with the Deaccession Police.  As Graham Beal, who apparently is working with the di Rosa, has put it, "the institution is there to safeguard the art. The art is not there to support the institution."

The "non-collecting entity" gambit also seems to have been abandoned.  The letter says "our plan, of course, calls for maintaining a legacy collection of several hundred works" and also refers to "new to-be-commissioned works."

"It’s very ignorant and backward to think that you can erase history, erase reality by destroying art."

Alice Walker is against the destruction of the San Francisco murals:

"Ms. Walker, who is also a poet and activist, criticized the stance that the images traumatize young people. Her daughter went to Washington High School and was not traumatized, she said. 'This feeling that everybody now is so tenderhearted that they can’t bear to know their history is ridiculous.'"

Other views here.

Tuesday, August 20, 2019

"We respectfully ask the director and the board to acknowledge and honor these unique circumstances by identifying an alternative institution to house, preserve, and appropriately utilize this unique collection. Failing to do so would lead to an irretrievable loss to the international art community."

An open letter regarding the di Rosa Foundation's planned deaccessioning.

Their plan to become a non-collecting institution that nevertheless "continue[s] to hold several hundred works" (you might even call that a "collection") does not seem to be working out so well.

Saturday, August 17, 2019

"At the time of his arrest, the artist had draped a Cuban flag over his shoulders as part of a thirty-day performance, titled Drapeau, in protest of a new law passed earlier this year that regulates how national symbols can be displayed."

Artforum:  "Cuban artist Luis Manuel Otero Alcántara, a staunch activist for artistic freedom in the country, was arrested outside the Museum of Dissidence in Havana on Saturday, August 10 and released two days later. Alcántara has previously been harassed and detained by the police on numerous occasions for his involvement in the campaign against Decree 349, the legislation that restricts independent cultural activity on the island."

"HBO sought to have the case dismissed last November, claiming that its use was 'transformative' enough to be considered fair use"

Motion to dismiss denied in an infringement case involving the use of a painting in a true-crime documentary.  The work is apparently "shown for over 25 seconds in one of the last frames of the documentary."  Story here.  Summary of the opinion (including a link to the full thing) here.

Playing Darts with a Rembrandt

Except it wasn't darts and it's not a Rembrandt:  Artist Sues Country Rapper Who Shot Paintings With Assault Rifle.

Headline reference here.

Brian Frye:  "Interesting VARA claim. Seems like the defendant might have a 'fair use' argument? At the very least, the claim certainly implicates free expression."

Wednesday, August 14, 2019

Do "non-collecting entities" hold their (non) collections in the public trust?

Last month, in a highly creative use of spin, Napa, California's di Rosa Center for Contemporary Art announced that they were going to start selling works to provide funding for their endowment, but it wasn't really a case of prohibited deaccessioning, it was just that they had "voted to cease collecting" and to thereby officially become a "non-collecting entity."

The spin seemed to work for a while -- there wasn't the usual uproar from the Deaccession Police -- but now San Francisco Chronicle art critic Charles Desmarais calls them out:

"[I]t is a proposal that reeks of opportunism, trumpeted as a solution to financial woes by a board and director too inept or too lazy to carry out their central responsibilities, seemingly blind to the fact that if they can’t balance the books now, an infusion of art-sale proceeds will be burned through eventually and the organization will be back to where it is now. … Di Rosa might well argue that it is not subject to the standards required of museums. Both the American Alliance of Museums and the Association of Art Museum Directors have policies requiring so-called 'deaccession' sale proceeds be used only to improve the collection, but di Rosa is not an accredited institution. That’s a technical out, but not an ethical one. Both the di Rosa’s director, Robert Sain, and its collections consultant, Graham Beal, have worked in major U.S. museums. They know the standards and the justifications for them."

It's interesting to see Beal's involvement here.  It was not that long ago that he had "cemented his status as the field's most articulate spokesperson against desperation deaccessions" by insisting that "the institution is there to safeguard the art. The art is not there to support the institution."

In any case, expect a pile on by the usual suspects.

"The 4-to-3 vote, which came after a tense and emotional meeting, nullified the board’s earlier vote to paint over the murals"

NYT:  San Francisco School Board Votes to Hide, but Not Destroy, Disputed Murals.

Thursday, August 01, 2019

"In a democracy, destroying a work of art is never a solution to any offense it may give. Once art has been made and released into the often choppy flow of life, it should stay there. ... To dictate its elimination is an implicitly autocratic move ...."

Roberta Smith on the San Francisco murals.

So that makes three positions that have been staked out.

The open letter position:  a work of art should not be destroyed if its message is anti-racist, even if it is traumatizing to students.

The school board position:  a work of art that is traumatizing to students should be destroyed, even if its message is anti-racist.

The Roberta Smith position:  a work of art should never be destroyed.

And related:  Two more murals set for removal at local schools.

Saturday, July 20, 2019

"The story is ‘Grand Theft Brâncuși.’ Philadelphia lawyer hornswoggles savvy New York collector out of $100 million. That’s my story. That’s what happened."

A doozy.

On Malarkey

My hunch that the letter to the editor by the two San Francisco school board members was cut for space turned out to be right.  artnet news has the complete letter.  It does not expand on the malarkey discussion, however.  Here's the full section:

"When one makes their way to the end of her commentary it’s not shocking in the least to find that she makes a false equivalency argument about students potentially being triggered by viewing photos of the My Lai massacre. Malarkey."

The main thrust of their argument remains the same.

The position of the open letter writers is: a work of art should not be destroyed if its message is anti-racist, even if it is traumatizing to students.

The position of the school board members is:  a work of art that is traumatizing to students should be destroyed, even if its message is anti-racist.

"The exploitation caused a certain risk of diluting Ai Weiwei’s artwork and had the character of a parasite on Ai Weiwei’s good name and reputation."

Ai Weiwei won his lawsuit (in Denmark) against Volkswgen for using his work in an ad.  Story here.  He got about $260,000 in damages.

Wednesday, July 17, 2019

More on the San Francisco Mural Destruction

A couple of letters on the subject, each a little curious in its own way.

First, an open letter signed by 400 academics, writers, and artists "oppos[ing] the school board’s decision and the wrong-headed approach to art and to history that lie behind that decision" and "urg[ing] the school board to reverse its decision and take all reasonable steps to preserve the mural …."  It claims the work's "meaning and commitments are not in dispute," namely that "it exposes and denounces in pictorial form the U.S. history of racism and colonialism."  It says the school board "voted to destroy a significant monument of anti-racism. This is a gross violation of logic and sense."  What's unclear to me from the letter, however, is what would happen if the meaning of the work was in dispute?  What if it did not denounce (or did not clearly enough denounce) the U.S. history of racism and colonialism?  Would the signatories still believe it was wrong to destroy it?

Next, a letter to the editor of the New York Times by the president and vice president of the San Francisco Board of Education, which voted to destroy the mural.  Their argument is straightforward: they say the work "traumatizes" students and therefore should not be "allowed to remain."  Here the curious part comes at the end:  in response to Times columnist Bari Weiss's question "What happens when a student suggests that looking at photographs of the My Lai massacre in history class is too traumatic?," they say this "false-equivalency argument is malarkey."  But then the letter just … ends.  It doesn't explain why it's malarkey, how the two cases differ.  It's as if the letter was cut short for space.

"Horton — whose health declined during the past 10 months, according to her son, Bill Page — never sold the painting. Over the years, she declined $2 million from an art dealer and $9 million from a collector."

Teri Horton, of "Who the $&% Is Jackson Pollock?" fame, has died.

Saturday, July 13, 2019

"In Boon for Art Authentication Committees, Judge Rules in Favor of Glimchers in Long-Running Agnes Martin Dispute"

Artnews story here.  This was round two in the case.  In April of last year, the Court dismissed the complaint but gave the plaintiff permission to replead, which they did.  Now the same Judge has dismissed the amended complaint, on similar grounds.

It's definitely a boon, but how boony is unclear.  As I said after round one:

"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.)"

*/  In fact, the plaintiff's lawyer told Artnews they do plan to appeal.

Saturday, July 06, 2019

More on the Warhol Prince Decision

Artnet's Sarah Cascone here.  Goldsmith says she will appeal.

Michael Madison wonders if there is a "third, less radical interpretation [in addition to the two I mentioned here], which relies on a hypothetical 'what would a reasonable person think?' standard vs a hypothetical 'any plausible reading/viewing is reasonable' standard?"

Rebecca Tushnet says "'may reasonably be perceived' has been the test (at least for parody) since Campbell--neither this judge nor the 2d Circuit made it up--and it makes sense for all forms of meaning-transformativeness, not just for the subcategory of parody, as both 2d and 9th have recognized."

She also thinks the case should have been decided on substantial similarity grounds, without ever having to get to fair use:  "this case illustrates ... that courts are more comfortable with fair use than they are with a true infringement inquiry (did the defendant copy too much protected material from the plaintiff?) when the real problem with the claim is that the defendant copied without taking very much, if any, protected material.  ... If we were really concerned that transformativeness has gone too far … then one way to deal with that problem would be to take infringement more seriously rather than using fair use as a clean-up tool."

Friday, July 05, 2019

Cady Noland's Lawsuit Was Dismised in March

I don't think I saw any coverage of this anywhere, but it's been brought to my attention by a loyal reader that Cady Noland's latest copyright lawsuit was dismissed a few months ago -- not on the merits, but on territoriality grounds:  because "all of the conduct underlying the Copyright Act violations alleged by Noland -- including Defendants' 'destruction' of her original work, their 'copying' of that work by replacing all of its wooden logs, their continued display of the 'copied' work, and their efforts at effectuating a sale of the 'copied' work—are alleged to have been performed by Defendants exclusively in Germany," the U.S. Copyright Act did not apply.  The opinion is here.

Robert Indiana News

A couple of developments this week:

One, a decision on several preliminary motions regarding the various claims and counterclaims in the federal lawsuit over his work.  Story here.  Opinion here.  Good luck sorting it all out.

And two, Indiana's "former caretaker," Jamie Thomas, filed suit in state court in Maine "aimed at forcing the estate to pay his legal bills," which he says are already over $2 million.  Story here.

Background here.

"Andy Warhol’s ‘Prince Series’ Is Fair Use, Court Rules"

AP story here.  Opinion here.

On summary judgment, Judge Koeltl ruled that "[e]ach of the Prince Series works may reasonably be perceived to be transformative of the Goldsmith Prince Photgraph. … [H]er photographic work centers on helping others formulate their identities … Her photoshoot illustrated that Prince is 'not a comfortable person' and that he is a 'vulnerable human being.'  [Her photograph] reflects these qualities.  Warhol's Prince Series, in contrast, can reasonably be perceived to reflect the opposite. … [They] can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.  The humanity Prince embodies in Goldsmith's photograph is gone."

He concludes:  "In sum, the Prince Series works are transformative.  They 'have a different character, give Goldsmith's photograph a new expression, and employ new aesthetics with creative and communicative results distinct from Goldsmith's.' See [Prince v. Cariou], 714 F. 3d at 708.  They add something new to the world of art and the public would be deprived of this contribution if the works could not be distributed."

I think there are two ways to read the decision -- one as a kind of non-event and the other as quite radical.

The non-event perspective is this Judge saw this particular use as transformative.  If you put the same facts before another judge -- one who somehow missed Prince's transformation from vulnerable person to larger-than-life figure -- the result could very easily have gone the other way.  On this reading, there's still no way to have any confidence about how any given fair use case will be decided.

The more radical reading would emphasize the weight Judge Koeltl (quietly) puts on the words "reasonably perceived."  That is, he sets the table for his transformativeness discussion by saying "the Court must 'examine how the [Prince Series works] may "reasonably be perceived" in order to assess their transformative nature'" (quoting Prince v. Cariou quoting the Supreme Court's Campbell decision).  From there, he then goes on to talk about, as I mention above, how the Warhol works "may reasonably be perceived" -- i.e., not that it's the only way they may be perceived, or even the most persuasive way they may be perceived.  Just that it's a reasonable interpretation of the work.  On this reading, as long as you can make a reasonable, good faith case that your work is transformative (even if there are other interpretations in which it's not), it's fair use.  I have no idea if that's what Judge Koeltl intended here, but if that became the new test for transformativeness, that would not be a non-event.  It would be transformative.

Brian Frye says it's the "[r]ight outcome, but if the excerpt is any indication, I'm not thrilled about the analysis. I don't love the idea of judges playing art critics any more than Holmes did."

Kevin Casini agrees:  "This analysis seems to hinge on an EXTREMELY subjective understanding of an artist's works and I suspect this judge is an art aficionado/collector. No thanks."

"Evidence against the suspects includes paint on their clothes, spray cans, eyewitness accounts and surveillance footage."

7 People Charged In Connection With Vandalism Of "The Bean."

Sunday, June 30, 2019

"Those in favor of covering the murals have said some of the images are offensive to various groups."

The New York Times reports that "the San Francisco Board of Education voted unanimously this week to cover a series of murals at George Washington High School that includes images of a dead Native American and slaves at work."

Somehow it will cost between $600,000 and $845,000 to cover them up.

Times columnist Bari Weiss is not amused:

"The implications of this logic are chilling. What happens when a student suggests that looking at photographs of the My Lai massacre in history class is too traumatic? Should newspapers avoid printing upsetting images that illuminate the crisis at the border, like the unforgettable one of Óscar Alberto Martínez Ramírez and his 23-month-old daughter, Valeria, facedown, drowned in the Rio Grande?  All are fair game for censorship in a worldview that insists that words and images are to be judged based on how 'safe' they make people feel."

Michael Kimmelman concurs:  "This is so appalling, a school board so shockingly reactionary, repressive and idiotic in the name of 'protecting' students that you wonder if its next move will be to burn books."

As does Charles Desmarais:  "I dread the day when another, and then another group or individual sets out to question a work of art in the public realm, not in the spirit of criticism and learning but to permanently deny us all the opportunity to judge for ourselves. I fear a time when nothing but the commercially sponsored and the innocuously peripheral make up our visual environment. Then we all will live in a poorer city, and the censors will know they were the cause."

Sunday, June 23, 2019

"US judge tosses lawsuit against glass artist Dale Chihuly"

It was a co-authorship claim brought by a former studio assistant who, as many studio assistants do, helped in the creation of certain works.  The court held, on summary judgment, that, because (1) "Chihuly superintended the production of the works and had unilateral control over the finished products" and (2) "no reasonable fact finder could conclude that plaintiff harbored even a subjective intent to be a co-author, much less that the parties objectively manifested such an intent" ("plaintiff never identified himself as the author of the works, he raised no objections when defendant failed to identify him as co-author, and he made no claim of authorship prior to the 2017 demand letter that preceded this action"), there was no co-authorship.  Story here.

More on the Sotheby's News

Who Is New Sotheby’s Owner Patrick Drahi?

What the Sotheby’s Sale Means for the Future of the Art Industry.

Bloomberg analysis.

Tuesday, June 18, 2019

Sold!

Sotheby's has been bought by French-Israeli telecommunications entrepreneur Patrick Drahi for $3.7 billion and will be taken private.

Lots of commentary out there:

New York Times.

Wall Street Journal.

Georgina Adam.

Felix Salmon.  (Bottom line:  "Buying Sotheby's gives Drahi much more clout among the global ultra-wealthy than he would get from buying $3.7 billion of art. It will also increase his name recognition in the U.S., where he has long harbored ambitions to build a major cable empire.")

Saturday, June 15, 2019

Second time as farce

The Barnes Unit of the Deaccession Police, having failed to stop the entire move of the museum to Philadelphia, is now protesting the recent sale, at the famed Pook & Pook auction house in Downingtown, Pennsylvania, of "156 lots of around 430 objects that had belonged to [Albert] Barnes and his wife Laura," including "furniture, clocks, textiles and porcelain objects," for a total hammer price of $98,000.  One attendee described it as "minor material—the cleaning out of an office," an office whose contents, they will have you know, were surely held in the public trust.

Another Mamacha Lawsuit

This one, for not paying an artist.  Last time it was for trademark infringement.

Frida Kahlo name/likeness lawsuit

Story here.

Gallery Employee Trade Secrets Lawsuit Settled

Story here.  Background here.

Thursday, June 06, 2019

"According to court documents obtained by The Blast, Silver and the Gagosian Gallery mutually agreed to drop the case for good."

Here's a report that "movie producer Joel Silver dropped his massive lawsuit against [Gagosian] over a Jeff Koons sculpture not long after the gallery called him out because his case had been secretly funded by billionaire Ronald Perelman, who previously had his own legal beef with the gallery."

Background here and here.

Wednesday, May 29, 2019

"According to the District Court of Puerto Rico, the artist has no claim for the destruction of the mural (because it is site-specific)" (UPDATED)

Amelia Brankov on a VARA decision out of Puerto Rico.

The decision is here.  It's an application of Phillips v. Pembroke, which I discussed here and here.

UPDATE:  Sergio Muñoz Sarmiento says "it seems to me that this case is not so much about site-specificity as it is about whether or not the artwork can be removed."

Tuesday, May 28, 2019

"For five years and counting — the latest lawsuit came Friday — the artist’s family, friends and associates have been trading lurid courtroom allegations of kidnapping, hired goons, attempted murder by Brazil nut, and schemes to wring even more money out of what was already one of the most profitable art franchises in modern times." (UPDATED)

Amy Chozick in the New York Times on the sad saga around Peter Max.

UPDATE:  The Art Market Monitor says it's less a story about Max than it is about Park West Gallery, "a company called out many times for its abusive practices ‘auctioning’ art on cruise ships. Their auctions are really a form of theater where buyers act out an auction for low-value art they’ve been told is an asset."  Some Park West background here.

Monday, May 27, 2019

Tell me again about the public trust (300 Chinese artworks edition) (UPDATED)

The Art Institute is selling 300 works that, having fallen under the aegis of a museum, are not held in the public trust for present and future generations and will not cause potential donors to ask themselves "Why should I give this to you?  What guarantee do I have that you're not going to sell this tomorrow?"

It's really a fortunate thing that museums do not hold works in the public trust and so are able to make these kinds of sales when necessary.

UPDATE:  It's a deaccessioning "spree."

Thursday, May 23, 2019

"Ai Weiwei Is Suing Volkswagen for Using His Installation of Refugee Life Jackets in an Advertisement"

In Denmark.

"The policy is being made possible by a $10 million donation by the board president, Carolyn Clark Powers."

LA MOCA is going admission free.

So here's a question:  suppose a museum that isn't lucky enough to have a board member like Carolyn Clark Powers could accomplish the same thing by selling a single work of art from its collection.  Would that be worth doing?  If not, why not?

Saturday, May 18, 2019

"Under New York law, you better put your blinds down. He’s lucky he wasn’t standing there buck naked."

Breaking:  "Alex Rodriguez ‘Has No Case’ Against Photographer Of Viral Toilet Photo Under Lenient New York Law."

First appearance for A-Rod at the blog, and, I think (but would have to double check), first use of "viral toilet photo."

But not the first appearance of the legal issue it presents.  See here.

"Actor and Artist Val Kilmer Says He Definitely Did Not Steal an Artist’s Idea for a Sculpture, Despite a Lawsuit"

"Texas-based sculptor Bale Creek Allen filed a lawsuit last fall claiming that Kilmer stole his idea for a golden tumbleweed sculpture. Allen, who has been selling his own tumbleweed sculptures for several years through galleries in Texas and New Mexico—including one he runs himself—asserts that that actor knowingly took his concept and copyrighted means of production."

"The infamous Abstract Expressionist forgery ring that rocked the art world is back in the headlines." (UPDATED)

"Last week, a federal judge in Manhattan set a July court date to determine whether Michael Hammer, the former owner of the infamous Knoedler Gallery, which sold tens of millions of dollars worth of fake art, could be held liable for the sales."

UPDATE:  Comments from Nicholas O'Donnell.

"Western Museums Have a Surplus of Art by White Men. Now Some Are Selling It Off to Correct Their Historical Biases"

Tim Schneider on the "growing trend" of deaccessioning-to-diversify.

It's a good thing the works aren't held in the public trust or else this strategy couldn't work.

Saturday, April 06, 2019

Latest street art lawsuit

This time it's Mercedes-Benz suing four artists who they claim "have threatened to sue for copyright infringement."  They're seeking a declaratory judgment of non-infringement:

"The legal action revolves around photos posted on Mercedes-Benz’s Instagram profile in January 2018 (that have since been deleted) promoting the automaker’s luxury sports utility vehicle, the Mercedes G 500. The images were shot in Detroit’s Eastern Market, which has become widely known for its Murals in the Market initiative, and where the defendants all had murals. In its lawsuit, Mercedes-Benz ... claimed that its images 'fundamentally transformed the visual aesthetic and meaning' of the murals."

Sergio Muñoz Sarmiento is "curious if Mercedes Benz will take this all the way or bow out in settlement. We’ve said before that this legal issue is ripe for courts to answer, so why not now?"

Wednesday, April 03, 2019

Saturday, March 23, 2019

Tell me again about the public trust (twenty-two Chinese jade artworks that have been part of the Art Institute of Chicago’s collection since 1900 edition)

But don't worry, the decision was "not made lightly."  Well that's a relief.

"Met Admission Fees Will Send $2.8 Million to Over 175 City Cultural Groups"

Remember all the tears -- from the usual suspects -- when the Met announced last year that it would take the radical step of starting to do what virtually every other museum does (charge for admission).

Well, here's some follow-up news about that:

"The Department of Cultural Affairs said that $1.4 million of the admissions money from the Met was earmarked for over 160 cultural development fund recipients that are in or serving what the city has identified as 'high-need neighborhoods.' Those include Harlem Stage in Manhattan; Louis Armstrong House Museum in Queens; and St. George Theater in Staten Island.

"The other half of the Met revenue will go to institutions in city-owned property that are in what the Department of Cultural Affairs has said are 'underserved communities.'

"Those funding increases, ranging from $25,000 to $175,000, will go to 16 organizations, including El Museo, the Studio Museum, the Bronx Museum of the Arts, the Jamaica Center for Arts and Learning, and children’s museums in Brooklyn and Staten Island."

Monday, March 18, 2019

"This is unusually broad because they claim they control not only what you take while you’re there but anything about it afterward." (UPDATED)

Apparently if you get a timed ticket to Thomas Heatherwick's new "Vessel" at Hudson Yards, they make you sign a photo release.

Cornell Tech's James Grimmelmann isn't having it:

"What a bad idea — and also a badly drafted clause. … It's even broader than photographs taken inside the Vessel. It also covers photographs 'depicting or relating to the Vessel' even if not taken from inside. So if you 'agree' to the license, it even applies to your later photographs of the Vessel taken from across the river. It also applies to 'audio recordings'(!) again regardless of where they were recorded. So if you go into the Vessel and then make a podcast about your visit, they claim a right in that too. On the other hand, they do stop short of claiming full ownership of your photos, audio, and video. They take only a license to use your media, plus a personal promise that you won't make commercial uses. So noncommercial postings are okay, it appears. But because they only take a personal promise not to make commercial uses, they have no recourse if *someone else* makes a commercial use of your media. So: Go to the Vessel. Take a photo or a video. Put it online with a Creative Commons Attribution license. You're not making a commercial use, and anyone else who does never agreed to the Vessel's terms. It's always amusing to see a clause this overreaching and also this badly drafted, like watching the mustache-twirling villain slip on the banana peel he dropped and fall face-first into a giant cake."

UPDATE:  The New York Times picks up the story:  Following Outcry, Hudson Yards Tweaks Policy Over Use of Vessel Pictures.  It's a good example of how, in the age of social media, this kind of copyright overreach is no longer tenable.  The backlash can be brutal.

Tuesday, March 12, 2019

"It doesn’t benefit anyone when there are thousands, if not millions, of works of art that are languishing in storage."

So says Glenn Lowry in this piece by Robin Pogrebin, not realizing that, when it comes to the public trust, "does this benefit anyone?" is not a relevant question.  What matters is ethics:  being really, extremely, very ethical.  And non-repulsive.

Lowry was already in my Deaccessioning Hall of Fame.

He's joined now by Gary Tinterow:

"'If an institution is faced with an existential threat, isn’t it better for the institution to survive with some works of art than no works of art?' countered Gary Tinterow, director of the Museum of Fine Arts, Houston, defending the Shelburne Museum in Vermont’s decision to sell $25 million worth of art in 1996."

(Deaccession Police answer:  no, because that would be unethical.)

Anne Pasternak adds that "there is increasing discussion these days about revisiting the strictures of deaccessioning policies. But she acknowledged 'there is a lot of fear around this conversation.'"

And Charles Venable asks:

"What is the balance between almost obsessively art collecting and spending vast amounts of resources on it?  Are we really just addicts collecting objects that our curators bring in generation after generation?"

Or, as I said just a couple days ago, even assuming there is such a thing as the public trust (and there's not) "the point of the trust should not be just to keep accumulating [works of art] but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection."

A frightening thought, I know.  You can see why there's a lot of fear around the conversation.

Sunday, March 10, 2019

Saturday, March 09, 2019

"With sale of Rothko, is SFMOMA creating a heritage, or dismantling one?"

I'm a little late to it, but San Francisco Chronicle art critic Charles Desmarais has a piece on SFMOMA's decision to sell a major Rothko and use the proceeds to diversify its collection.  He discusses a number of reactions to the news, including mine:

"Donn Zaretsky, publisher of the Art Law Blog, is a ceaseless opponent of the strict guidelines museum associations place on the use of deaccession funds (they can only be used to buy works of art that are meant to enhance the collection, and not be sold off to raise money for general operating support or capital needs). He titled a post, 'Tell me again about the public trust (1960 Rothko edition).' It was a reference to the argument, correct in my view, that museums have an ethical responsibility to preserve and cultivate collections for the benefit of their communities."

And then he goes on to say:

"Few who demand that museum collections be respected as a public trust would say that every object has equal status, and an equally permanent claim. Rather, it is the collection as a whole that should be preserved for future generations. I, for one, have no problem with pruning the tree to promote greater vigor of the larger organism."

This is interesting, in a couple of ways.

First, this is the first time I've seen someone assert that, when it comes to the public trust, not every object has "equal status" or an "equally permanent claim."  The idea seems to be that some works are held more in the public trust than others -- that some are held extremely in the public trust and others are held in the public trust but not so much.  But if this is true, how do we know which works are in which category?  Is there a database somewhere that includes their level of public trust-ness along with their provenance and exhibition histories?  "This work is a 7 on the Public Trust Scale and that one is a 4"?

The other idea here, and this one I have heard others express from time to time, is that it's not the individual works in a museum's collection that are held in the public trust but, rather, the collection as a whole.  The analogy, I take it, is to an investment portfolio.  If I am the trustee of your trust, it doesn't matter if I sell off this Google stock or those shares in Apple so long as the portfolio as a whole is not dissipated.  The same is true here, the argument goes:  it doesn't matter if you sell the Rothko "stock" as long as you replace it with other artist stocks.

It's an interesting move, and probably the only way to salvage anything of the "public trust" argument, but ultimately I think it's not persuasive.  First of all, Google and Apple shares in a trust can be sold and the proceeds used for things other than buying different stocks -- they can be used to pay trustee commissions and accounting fees and legal fees (thank God), for example -- and, much more importantly for present purposes, there is a beneficiary of the trust and the point of the trust is to benefit that beneficiary and if that means selling stocks to pay for their education expenses, or housing, or medical expenses, that's perfectly fine, in fact it's the whole point of the trust.  In the public trust analogy, the beneficiary is, well, the public and the point of the "trust" should not be just to keep accumulating shares of stock (works of art) but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection.

Look, at the end of the day the notion of the public trust is just a metaphor, meant to express the (absolutely correct) idea that the collection is really important to us and the works that make it up should not be disposed of lightly.  But when we have a good reason to -- whether it's to buy more art, or to diversify the collection, or to keep from going out of business, or anything else that counts as a good reason -- that should be fine, it's not a violation of any sort of trust, it's not unethical, it's not Stalin-esque. The public trust (if it existed) should be for the benefit of the public.

Saturday, March 02, 2019

"Such a wide discrepancy in valuation could be a concern for the Internal Revenue Service, should Mr. Benioff wish to claim the donation on his tax return ..."

The Times has a story today about tech billionaire Marc Benioff, who bought a Hawaiian war god sculpture for $7.5 million at auction and then donated it to a museum in Honolulu … but now "some international experts say the piece could be from the 20th century and worth less than $5,000."

I discussed another case involving tax deductions for fakes here, but in this case it's far from established that the piece is inauthentic.

"My concern was that Bob would die and it would be a mess. Well, Bob did die and we have a mess. It’s very sad."

Boston Globe:  In wake of famed artist Robert Indiana's death, a tangle of allegations.

"Art dealer Philippe Hoerle-Guggenheim, who has earned fawning media coverage for his flashy Chelsea gallery and famous name, is facing a lawsuit over allegedly accepting money for artworks—and then failing to deliver them."

Story here.  "The lawsuit also gets personal, questioning Hoerle-Guggenheim’s alleged ties to Solomon R. Guggenheim."

Monday, February 18, 2019

The Swizz Beatz Resale Royalty Solution

Mentioned in this NYT Style Magazine profile:

"Dean has proposed sidestepping the law entirely and instead introducing an option for collectors selling a work through an auction house or gallery to simply check a box — yes or no (he’s been referring to it unofficially as 'the Dean Choice') — to indicate whether they’d like to give a percentage of the sale to the artist. He suggests that 3 to 5 percent is a fair commission. …

"'If you’re really a patron,' he continues, 'and really a collector, you’re gonna say yes. And I feel that in the first year we introduce this option, 30 percent are gonna say yes. And then the year after that it will be 60 percent, and then it will just keep going up from there, and then we won’t even need a rule. It will just be the thing to do. People are gonna want to check yes because the artists will know if they don’t — if they didn’t do the right thing.'"

Sunday, February 17, 2019

"Yoo’s response paints her former employer’s lawsuit as a case of sour grapes."


Background here.

Tell me again about the public trust (1960 Rothko edition)

SFMoMA is selling a 1960 Rothko painting at Sotheby's in May.  It's expected to sell for $35-50 million.

Now, you may think this significant work by this significant artist, having fallen under the aegis of a museum, is held in the public trust, to be accessible to present and future generations.  But clearly:  not the case.

And you may think potential future donors to the museum, upon hearing this news, might ask themselves "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"  But again:  nope.

How hard would it be for people to just admit that all the "public trust" talk is a bunch of bullshit and replace it with a rule that says museums are permitted to sell work if but only if they have a good reason for doing so?  (In this case, the good reason proffered is to diversify its holdings, to "address art historical gaps like works by women and people of color.")

Thursday, February 14, 2019

Thirty Months for Mary Boone (UPDATED 2X)

Story here.  Background here.

UPDATE:  Jerry Saltz still thinks she shouldn't have gotten any jail time:  "You all know where I stood on this.   Make her pay it all back.  Sentence her.  But not jail time.  So for me it seems harsh."  And Paddy Johnson still begs to differ.

And here is Nate Freeman on The Rise and Fall of Mary Boone.

UPDATE 2:  She's closing her gallery.

Tuesday, January 29, 2019

Tell me again about the public trust (Zao Wou-Ki "masterwork" edition)

The Guggenheim is deaccessioning a 1958 Zao Wou-Ki painting.  It's estimated at $7.7-10 million.

Because the sale proceeds will "go toward the museum's art fund," it's not the case that the work is held in the public trust, to be accessible to present and future generations.

Judge and Mrs. Samuel I. Rosenman bought the work and donated it to the Guggenheim in 1964 but, again because the sale proceeds will go towards the museum's art fund, it's not the case that potential future donors will say "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"  Collectors don't say that when sales proceeds go to buy more art.  That's a well-established empirical fact.

So, so very ethical.

Saturday, January 19, 2019

"An artist resale royalty is fair in principle for all visual artists. It would also address lingering inequities born of racism and allow the families of artists excluded from the art market to be appropriately recompensed." (UPDATED)

Maxwell Anderson had a recent piece in The Art Newspaper arguing in favor of resale royalty legislation, which he says "is expected to be reintroduced" in the new Congress.

One of the arguments people often make against the resale royalty is that it's not necessary:  that artists whose prices go significantly up reap the benefit of that when they sell their own work.  Anderson points out that one group of artists that's not always true for is "historically disadvantaged artists who have been left out of the American canon of art for reasons of race, gender or other socio-economic limitations. This is especially true of the many artists who lack representation or a presence in the art market until the end of their careers or posthumously."  For example:  "Consider the Gee’s Bend quilters of Alabama: with no access to the gallery system, many of their artworks were purchased by Atlanta collector William S. Arnett at a time when no viable market existed for their work. … Like many artists, the value of the quilt makers’ works has increased over time. But many of the artists have either passed away or are no longer producing works, and thus an improved market came too late to benefit them in their prime. One could cite many examples of this discrepancy throughout history."

UPDATE:  Brian Frye is unimpressed:  "Even the best arguments in favor of statutory artist resale royalties are comically bad. Yes, it is possible to hunt up artists who didn't profit from work that later became valuable. But they deserve money because they are poor, not because they are artists."

"Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers."

Another interesting story from around the holidays:  the New York Times reports on a series of lawsuits against sports video game makers by tattoo artists (for example, where the LeBron James character in a video game includes LeBron James's actual tattoos).

NYU's Christopher Sprigman says:

"All seem to agree that 1) tattoos [are] copyrightable, yet 2) tattooed person has [an] implied license to walk around in public. But why doesn’t [the] implied license include [the] power to authorize reproduction/distribution of one’s image, w/tats? Isn’t that protected by 1st Amendment?"

Annemarie Bridy agrees:

"The implied license should cover any actual or virtual appearance of the tattoo as long as it’s incidental to the appearance of the tattooed person."

(To which Sprigman responds:  "Agreed. This entire developing genre of 'let's shake down the video game companies w/some new tattoo copyright litigation' should end.")

The Kendrick Lamar infringement lawsuit also settled over the holidays

Story here.  The artist who sued him had won an important summary judgment victory in October.

"[B]ut didn't it all work out in the end?"

Still catching up on some year-end reading, and came across this, from Michael Hiltzik's list of the 10 best books he read in 2018, one of which was John Anderson's “Art Held Hostage: The Battle over the Barnes Collection”:

"Eventually, after intricate legal maneuvering, the entire collection was moved in 2012 to a new home in Philadelphia, into a painstaking replica of the interior of the Merion gallery. Art critics were divided, with some, including Christopher Knight of the Los Angeles Times, remaining unhappy, while others professed themselves to be pleasantly surprised at the resolution.  What remains clear is that the relocation finally opened up this outstanding collection to full public view. That points to a question that neither Anderson nor Argott adequately answers — what was wrong about moving the Barnes? It was locked in a community that didn’t want it, run by a board that couldn’t manage it, was all but invisible to the public and was threatened with physical deterioration."

Good question.

Sunday, January 13, 2019

"The divorce also threatens to expose the private dealings of one of the wealthiest and most influential families in the art world. Mr. Mugrabi, 47, is the scion of a powerful art-dealing family that is reportedly worth $5 billion and owns some 1,000 works by Warhol, making it the world’s largest private holding."

The New York Times on Libbie and David Mugrabi's divorce.

"[A]s long as dealers who show a lot of women artists pay those artists i am good with the dealer cheating on her taxes. It’s a wee bit bad-ass too. But you want ‘em to pay taxes, cool by me. She has to now. You win." (UPDATED)

Tweets Jerry Saltz, who was one of many "prominent art world figures" who wrote letters to the sentencing Judge on Mary Boone's behalf.

Paddy Johnson isn't having it:

"Taxes pay for food stamps, Medicare and the NEA. It’s not bad ass to opt out of those responsibilities so you can make improvements to your million dollar apartment and not stealing from your artists too doesn’t make it any better."

Nor is Rachel Wetzler:

"I'm not exactly cheering for Mary Boone to go to prison, but how warped does your worldview have to be to believe that it's OK for a millionaire to dodge taxes because you like her gallery programming?"

Nor is Columbia's Shamus Kahn:

"Spare us your righteous indignation about elites. Guess it doesn’t apply when they’re liberal and your friends."

UPDATE:  Saltz waves the white flag:  "BOY did I call this one wrong."

Wednesday, January 09, 2019

"Christie’s Sale of Francis Bacon Painting Draws Suits"

The work had been pledged as collateral for a $4.9 million loan. Details here.  Felix Salmon declares the suit "BONKERS."

"Mary Boone, Art Dealer, Cites Early Trauma in Bid to Avoid Prison" (UPDATED)

New York Time story here.  She plead guilty in September to tax fraud.  Sentencing is scheduled for later this month.

UPDATE:  Prosecutors are seeking 30 to 37 months.