Friday, March 27, 2020

"In short, under the Second Circuit’s test, a work is of recognized stature when a community of art experts says it is."

Very good piece by MKW's Dave Steiner on the 5Pointz decision. He finds the damages aspect of the case less interesting than I do and says "the primary significance of the case is that it establishes a test that is highly deferential to experts for when a work of visual art has achieved 'recognized stature' — and thus merits protection from destruction under [VARA]." He also offers some lessons for real estate owners, including "don't lie to the court."

Tuesday, March 24, 2020

Monday, March 23, 2020

"The Artist Behind Meow Wolf’s Beloved Fantastical Space Owl Is Suing the Company for More Than $1 Million"

Story here.

Here's some background on Meow Wolf from the New York Times Magazine last year: Can an Art Collective Become the Disney of the Experience Economy? They'd reportedly raised $158 million from investors as of last May.

Friday, March 20, 2020

"It is a classic example of an art dealer acting in bad faith to exploit an artist at the outset of his career. The law protects against that."

Derek Fordjour moves to dismiss dealer Robert Blumenthal's complaint against him. Story here. Background here.

Wednesday, March 18, 2020

Inigo Inigo Inigo

Some quarantine reading on the art world's biggest legal scandal at the moment:

1. The New York Times: The Talented Mr. Philbrick.

2. artnet news: What Did Inigo Philbrick Do? How One Precocious Dealer Allegedly Swindled the Art Market’s Savviest Players Out of Millions.

3. A first-person account at New York magazine by Philbrick's one-time friend Kenny Schachter. This one features the largest amount of prostitutes and drugs.

Wednesday, March 11, 2020

5Pointz developer seeking Supreme Court review

Link [$] here.

Annemarie Bridy tweets: "Alleges the damages are so excessive that they violate due process. I think this one's a loser."

Background here. Bridy is probably right, but, as I say at the link, the damages issue is the most interesting part of the case.

"Artist Sues Disney, Pixar Over Unicorn-Adorned Van in 'Onward'"

Story here.

Timothy Geigner at Techdirt says: "Are those two vans similar? Of course they are! So is Disney/Pixar guilty of copyright infringement? Well...no, probably not. This again is a matter of the idea and expression dichotomy in copyright law. The purpose of that part of the law is to limit copyright protection to specific expression and not mere ideas and themes. For instance, a 1 to 1 copy of Daniher's design on Pixar's cartoon van would likely be infringing. The concept of a purple van with a unicorn on the side of it is, however, not protectable. In fact, it's nearly in trope territory."

"Blain Southern goes into administration as artists reveal debts owed by gallery"

Story here. At least one artist is suing: "Sean Scully says he has 'begun legal proceedings' against the firm, which he says owes him a substantial amount of money related to the sales of his works."

"Cuban artist Luis Manuel Otero Alcántara arrested on way to a LGBTQ+ censorship protest"

Art Newspaper story here.

"Mary Boone sued by former director for withholding wages and ‘misappropriating’ more than $10m"

James Oliver claims she sold certain works for her own account that really belonged to the gallery, where he had a 10% equity interest.

Some relevant background here.

"Based on his guilty plea, Righter faces up to 25 years in federal prison."

artnet news: A Los Angeles Man Who Forged Documents to ‘Authenticate’ Fake Works by Warhol and Basquiat Has Pleaded Guilty to Federal Fraud Charges.

Crispin Sartwell tweets: "If I were an art forger, Warhol and Basquiat would be tempting. Not sure anyone could tell the real thing from a careless fake by looking."

Paddle8 Sued for Nonpayment

Eileen Kinsella has the story here.

Saturday, February 22, 2020

5Pointz Ruling Upheld (UPDATED)

The Second Circuit has upheld the $6.75 million judgment in favor of the artists in the 5Pointz lawsuit. Eileen Kinsella has the story here. (The artnet headline calls the decision "stunning," but an affirmance of a district court decision is never that stunning. Although this one may have surprised some people.) The decision is here.

The part of the decision getting the most attention -- part of what the Court calls the "crux of the parties' dispute" -- is that temporary works of art are eligible for VARA protection. That seems clearly right. The Court mentions Christo's "The Gates" for example.

I've always been more interested in the damages aspect of the case. The district court found it could not quantify the damages, so the $6.75 million was all statutory damages. The Second Circuit now has ruled that that was appropriate -- that in a case where actual damages could not be established, a nearly $7 million statutory damages award was justified. Now, it may be the facts of this case were so unique and so egregious that it won't have a wider impact -- basically what happened is that early in the litigation the artists got a TRO preventing the demolition of the site, it expired, and, while the district court was considering their application for a preliminary injunction to replace it, the developer had the work painted over, "without any genuine business need" to do so, "simply, as the district court found, an 'act of pure pique and revenge.'" But the idea that significant statutory damages can be awarded in a VARA case even where actual damages can't be proven could be a big deal.

UPDATE: Some reactions. First, Derek Fincham:

"I am always surprised when I encounter art lawyers and academics who are critical of the idea of moral rights. They will often make the argument that artists do not want or need moral rights, and developers like Wolkoff will not allow art anywhere near their buildings ever again. But this elides the reality, these condominium developments have as I understand it been built to take advantage of the newly gentrified neighborhood, and the new ‘luxury’ development will still be called 5 Pointz, and feature aerosol art. The art will happen no matter what, this ruling just gives the artists vindication for the personality of these artists that was bound up and integral in these images. Developers like Wolkoff claim that these moral rights damage their property rights; but a moral right is not an economic right. Instead it accounts for the psychological suffering which takes place when an artist’s art has been harmed in some way."

And Sergio Muñoz Sarmiento:

"Big news? I think so. And I think developers, in fact, any commissioning party commissioning an art work by an artist should be processing right about now."

Saturday, February 01, 2020

Gagosian-Tananbaum Suit Settled

This is the one with the ouroboros, and where the Judge had said: "Next year, Mr. Tananbaum will go buy more art from Mr. Gagosian. I’m the only one getting agita." Which, based on the joint statement issued by Gagosian and Koons ("Mr. Tananbaum is a passionate collector, and we look forward to our continuing relationship"), appears to be correct (though I can't speak to anybody's agita levels but my own). Story here.

Sunday, January 12, 2020

Shed employees move to unionize

Story here. More here: "Over the past year, a wave of employees at museums across America have pushed to unionize. Much of the action has been centered on New York, with workers at the New Museum, the Guggenheim Museum, the Brooklyn Academy of Music, and elsewhere having successfully formed unions, though the movement has also begun reaching other cities. Employees at the Frye Art Museum in Seattle unionized, and the Museum of Contemporary Art Los Angeles voluntarily recognized its workers’ efforts to form a union."

"Under the rules, they have to register with the government’s tax agency, and dealers and auctioneers must establish the identity of the 'ultimate beneficial owner' — meaning both seller and buyer — before entering into a transaction."

New anti-money laundering regulations in the UK. They went into effect Friday. NYT story here. Kenneth Mullens of Withers here. More here.