Saturday, October 17, 2020

Full Circle

Thinking more about Mark Stryker's excellent tweet yesterday --  where he basically says in one sentence what I've been trying to say here for about 12 years -- and Everson board president Jessica Arb Danial's excellent piece, I'm reminded of the initial question I had about this whole issue, as quoted in Jori Finkel's New York Times piece all those years ago:

"Donn Zaretsky, a New York lawyer who specializes in art cases, has sympathized with the National Academy at [The Art Law Blog], asking why a museum can sell art to buy more art but not to cover overhead costs or a much-needed education center. 'Why should we automatically assume that buying art always justifies a deaccessioning, but that no other use of proceeds — no matter how important to an institution’s mission — ever can?' he wrote."

I still think that's the right question.

We know, as Stryker reminds us, that museums sell work whenever they want, so it cannot be the case that they are held in public trust. The only issue is use of proceeds.

The Jessica Arb Danials of the world think there is another use of proceeds, besides buying art, that can justify a deaccessioning -- namely, social justice, equity, diversity, representation.

Her opponents disagree with that view.

Isn't that what it really comes down to?

"He would also withdraw the portion of his complaint that his rights were violated under the Visual Artists Rights Act."

 An update on the toilet gardens lawsuit.

Friday, October 16, 2020

A Second Round of Deaccessioning at the Brooklyn Museum

This round includes works by Monet, Miró, and Degas. Previous round here.

These sales are completely ethical -- the AAMD, which as we all know has the power to say whether or not something is ethical, has decreed it so. Some people are unhappy anyway.

Former Detroit Free Press arts reporter Mark Stryker tweets: "in future, critics will point to hypocrisy of museums selling whenever they want but crying 'public trust' only when convenient. The critics will be right."

Or, put another way: Tell me again about the public trust.

"While fine arts experts and critics may try to shame the Everson and other like-minded museums for the decision to deaccession for the purpose of creating an endowment to diversify the collection, these voices are echoing decades of status quo art history textbook and gallery etiquette, rather than the realities we are living today."

 "To seek to impose one’s ideals of an art museum, without considering how significantly the world has changed these last few decades, let alone these past few months, is nothing short of tone-deaf. Every one of us, especially in the arts, should be acting. The Everson is resolute in its decision to represent our community and will not miss out on an opportunity to create meaningful change.

In the "other" big deaccessioning story, the President of the Everson board defends the decision to sell a Pollock and use the proceeds to diversify its collection, including also the following:

"We see our role in this community as being much greater than retaining a single work of art, a status quo or the rigid sensibilities of a few critics, commentators and professional associations. We have something bigger in our hearts and minds, and it includes contributing most meaningfully to a community that is divided and hurting, preserving the talent of diverse artists still fighting barriers for entry and igniting the aspirations of young people who need to see themselves represented by artists."

Background, including comments from one of those critics, here.

Latest on the Baltimore Museum Deaccessioning

The LA Times: "A group of 23 prominent supporters of the Baltimore Museum of Art, including former trustees at the BMA and the nearby Walters Art Museum, has written to Maryland Atty. Gen. Brian Frosh and Secretary of State John C. Wobensmith to demand that they intervene to stop the impending sale of paintings from the storied museum’s collection."

Christopher Knight calls it "a blistering and closely argued six-page letter." Tyler Green has thoughts here. Lee Rosenbaum is here.

The museum's response -- including that "deaccessioning artworks from a museum's collection is a standard practice" -- can be read here.

The Baltimore Sun's editorial board weighs in here: "it’s an understandably painful pill for some to swallow. And change in general is uncomfortable. But we prefer to think of it not as closing a door on certain works by these white artists of the past, but instead opening the door to including diverse artists of the future, who would not have had the opportunity to be seen and appreciated in the same way in any other time in history, along with the new audience they could attract."

Two museum curators defended the move here. Background here.

Tuesday, October 06, 2020

"Baltimore Museum to Sell 3 Blue-Chip Paintings to Advance Equity"

Still catching up on blogging, and last week's big story was the Baltimore Museum of Art putting three major paintings up for sale and planning to "use its $65 million windfall to help advance salary increases across the board, invest in diversity and inclusion programs, offer evening hours and eliminate admission fees for special exhibitions." The New York Times story is here. Eileen Kinsella has more here.

Christopher Bedford, the Museum's director, says "this is done specifically in recognition of the protest being led by museum staff to be paid an equitable living wage to perform core work for an institution with a social justice mission — that symmetry between who we say we are and what we actually are behind our doors."

As the Times points out, the Museum is "taking advantage of the Association of Art Museum Directors’ temporary pandemic-era loosening of its deaccessing guidelines. ... The B.M.A.’s game plan is ... in line with how the museum association defined its new resolution active until April 2022, said Christine Anagnos, its director. The first $10 million of proceeds from the ... sale will go into the museum’s endowment fund for acquisitions, with an emphasis on artists of color of the postwar era. The rest of the proceeds, approximately $55 million, will be used to create a new endowment for direct care of the collection. This fund should generate approximately $2.5 million annually in income, to cover the salaries of curators, registrars, conservators, preparators, art handlers, administrative staff and fellows, and other collection-related expenses."

I discussed that temporary pandemic-era loosening of the AAMD's deaccessioning guidelines here.

Monday, October 05, 2020

Cert. Denied in the 5Pointz Case (UPDATED)

Story here. Background here. Brian Frye tweets: "I think VARA is terrible policy & I think the underlying decision was wrong on both the merits & the remedy. But the defendant was defiantly unsympathetic, so..."

UPDATE: New York Times story here.

Sunday, September 20, 2020

"Today came news that the cutting-edge warehouse, opened by the real estate firm Carye Equities for a reported $40 million and managed by shipping industry experts, is shutting down for good."

 ARCIS -- once described as "a tax-free zone in search of a tax" -- has closed down. Eileen Kinsella has the story here.

And speaking of Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye ...

 ... an interesting conversation between him and another friend of the blog, artist/lawyer Alfred Steiner, at Brian's excellent Ipse Dixit podcast. Here's a good recent example of a Steiner project -- a Public License for Criminal Use.

The other big deaccessioning story ... (UPDATED)

 ... is that the Everson Museum of Art in Syracuse is deaccessioning a Jackson Pollock -- estimated at $12-18 million -- and will use the proceeds to diversify its collection. The Baltimore Museum did something similar a couple years ago.

I would have guessed that, because the sales proceeds are being used to buy more art (among other reasons), this would be non-controversial, but surprisingly (to me at least) it's been met with a good deal of criticism. Both Christopher Knight and Lee Rosenbaum have come out strongly against it.

In response to Knight's piece, Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye tweets: "Christopher Knight, the Inspector Clouseau of the Deaccessioning Police, now has a bee in his bonnet about the Everson Museum selling a Pollock in order to diversify its collection. Amusingly, he can't even invoke the (meaningless) AAMD deaccessioning rules, which expressly allow museums to sell works in order to buy different works. All he can do is whine that the museum is selling a work he happens to like in order to buy something else. Tell me more about how 'diversity is important, but...'?"

Everson Director Elizabeth Dunbar says:

"The murder of George Floyd and a string of senseless killings of Black lives have propelled us into urgent discussions surrounding the Museum’s role and responsibility in fighting racism inside and outside our walls. Now is the time for action. By deaccessioning a single artwork, we can make enormous strides in building a collection that reflects the amazing diversity of our community and ensure that it remains accessible to all for generations to come."

In response, Knight says this approach -- selling work "to the highest bidder [as a] way to bring racial and gender equity to the institution going forward" -- is "balderdash. The Everson would need to unload half of its collection for it to reflect the diversity of a city that is 45% nonwhite, according to the most recent census estimate." He also says the trend of museums "sell[ing] art by blue-chip white artists to create a diversity acquisition fund" is a "terrible" one: "The goal of diversifying white patriarchal patterns of museum art collecting is hugely important. This sort of quick fix belies the seriousness."

UPDATE: A local response to Knight here.

"It is the kind of sale that once would have engendered criticism, perhaps even sanctions .... But it is now completely within the parameters of loosened regulations ...."

I've been behind on my blogging the last few weeks, but the big news of course was the announcement by the Brooklyn Museum that it would be selling 12 works -- including paintings by Cranach, Courbet and Corot -- to raise funds for the care of its collection.

As the Times article points out, the Museum is the first major institution "to take advantage of" the (temporary) change in the AAMD's deaccessioning guidelines, announced in April.

One point I haven't made before about that change is how it completely undermines the public trust argument against deaccessioning. If you really believe that a museum holds its collection in the public trust -- as if the museum is the trustee and the public is the beneficiary -- then how does a change in policy by some third-party organization release the works from the public trust? Where does the AAMD get that power? Who made it the arbiter of what is or is not held in public trust?

The other thing that undermines the public trust argument against deaccessioning, as I've said a million times here before, is that museums sell works all the time, so obviously they can't be held in the public trust. If the Museum in this case had announced it was selling the same 12 works and putting the sales proceeds in a bank account labeled "acquisition fund," no one would have batted an eye. But using the same proceeds to care for its collection brings out the usual ritual denunciations.

Monday, August 17, 2020

Saturday, August 15, 2020

"All buyers must also sign a contract with extensive conditions. They must agree not to resell the work at auction for at least five years; if they do want to sell, they must give the artist right of first refusal; and, if they sell to someone else, they have to give 15 percent of the upside back to the artists."

A contractual resale royalty is in place for "'Say It Loud (I’m Black and Proud),' an online selling exhibition at Christie’s that opened on July 31 and is dedicated to the promotion of Black art."

Arlene Dávila tweets: "Great example of how curators can advocate for artists' resale royalty rights. Let's stop the speculation & the unequal model where only collectors/speculators benefit from the evaluation of artists' works."

The Christopher Sprigman view of this would be that it will to some extent suppress the price buyers are willing to pay for the works in the auction (i.e., that you would pay for more for an asset that comes with no strings attached than you would for the same asset with these conditions).

Sergio Muñoz Sarmiento: "One thing that really annoys me is how articles like this get written with absolutely no mention of well-known historical precedents, like Robert Projansky’s and Seth Siegelaub’s The Artist’s Reserved Rights Transfer And Sale Agreement, from 1971. God forbid there would be any mention of Hans Haacke or Michael Asher."

A while back, musician and art collector Swizz Beatz had a proposal for an auction house-based resale royalty scheme, mentioned here.

Tuesday, August 11, 2020

"A Brooklyn Art-Storage Company Is Suing Art Dealer Fergus McCaffrey for Allegedly Failing to Pay His $145,000 Bill"

 artnet news story here.

"Staten Island artist Scott LoBaido has a lawyer and is ready to take on the de Blasio administration in court if the Department of Transportation continues to pressure him to remove his thin blue line outside of the 122 precinct."

The artist says he "painted the blue line as a way to stand in solidarity with the NYPD after Mayor Bill de Blasio announced he would paint 'Black Lives Matter” street murals across the five boroughs on the heels of nationwide racial injustice protests." His lawyer argues: "Cites can do one of two things, they can either paint nothing and take no position, or they can allow everybody to paint … their own political points of view on the streets. But they can’t selectively say ‘my political opinion is going to be allowed to be painted and yours is not, and if you paint yours, you’re going to be subject to fines, penalty, imprisonment."

"In a statement to the Daily News, he said: 'It may be left over from my divorce, but I don’t have such a bill.'"

 "Rudolph Giuliani, the former New York City mayor and attorney to Donald Trump, has been hit with a lawsuit in New York State Supreme Court by an art advisor who says he failed to pay for her appraisal services, which he received during his contentious divorce from Judith Nathan in 2019.  The advisor, Miller Gaffney, runs the firm MGAA. She is alleging that Giuliani owes more than $15,700 for services rendered."

Wednesday, August 05, 2020

Tuesday, August 04, 2020

Thursday, July 30, 2020

Yet another mural dispute

This one in Oslo.

"But just as one mural controversy is ending, another is beginning."

Another mural-related VARA dispute. Story here.

This one may have a statute of limitations complication: "Carrera says the city violated the statute when it installed the parade mural in 2012. She says she never waived her rights to her painting in writing, a requirement of the law."

Wednesday, July 29, 2020

"The report said the financial transactions were enabled by the secrecy and anonymity with which the art market operates and it called for tighter rules to force greater transparency." (UPDATED)

New York Times: Senate Report: Opaque Art Market Helped Oligarchs Evade Sanctions.

UPDATE: A deep-dive from Tim Schneider, which ends up here: "The Senate report shows how complicated it can be to unmask the end client when shell companies, anonymous trusts, and legit-on-the-surface intermediaries are involved. Intense due diligence also conflicts with the volume and speed of business they need to do to break even, let alone turn a profit."

"Consistent with VARA, VLS will be reaching out to the artist to determine if he would like to remove the mural within 90 days. If the artist chooses not to remove the mural, the mural will be painted over or otherwise removed. In the meantime, the mural is being temporarily covered."

Story here:

"Painted and installed in the VLS Chase Community Center in 1993, 'The Underground Railroad, Vermont and the Fugitive Slave' 'celebrates the efforts of black and white Americans in Vermont and throughout the United States to achieve freedom and justice,' [the artist's] website says. ... [T]his summer, some current students said the mural 'perpetuates white supremacy, superiority, and the white savior complex,' and that the 'the over-exaggerated depiction of Africans, ... is eerily similar to Sambos, and other anti-black coon caricatures.' VLS on Friday said the Board of Trustees agreed with their concerns ..., but also would allow [the artist] a chance to remove the mural to comply with the Visual Artists Rights Act."

Related stories here and here. The Roberta Smith position -- that "once art has been made and released into the often choppy flow of life, it should stay there" -- seems to be losing ground.

Tuesday, July 28, 2020

"We liked this variation because it addresses some of the criticisms of the Siegelaub-Projansky contract (that only successful artists benefit from its use), and that it redistributes wealth to produce social good ...."

More on Kadist's new resale royalty contract, mentioned earlier here.

If we assume the problem a resale royalty is meant to address is the unfairness to the artist that results when a work significantly increases in value from its first sale ... I'm not sure how this solves that problem. This feels more like a tax on the sale proceeds, with the taxes earmarked for charity (albeit one the artist gets to designate). It's like a consolation prize: the artist herself doesn't get to share in the increase in value, but a charity she likes does. If you thought someone owed you $1,000 (and I think that's part of the case for resale royalties: that the artist has a moral claim to a share of the proceeds her work generates) and they said they wouldn't pay it to you but would instead give it to a charity of your choice, is that the same thing? Would that make you whole? I think you'd feel it was better than nothing, but, depending on how strong your connection to the charity is, not quite justice.

Wednesday, July 22, 2020

"Each of the former workers is expected to receive about 10 weeks of pay, said Daniel B. Rojas, one of the lawyers who represented them."

NYT: Marciano Foundation Settles Lawsuit Over Layoffs.

The settlement costs them about $200,000, plus they agreed to pay $70,000 in legal fees to the employees' lawyers.

Background here.

Friday, July 17, 2020

Five Years for Art Fraud

The Art Newspaper: "Philip Righter, 43, pleaded guilty to three felony charges—wire fraud, aggravated identity theft and tax fraud—in a case filed in Los Angeles. He admitted to selling works he falsely claimed were created by artists such as Andy Warhol, Jean-Michel Basquiat, Keith Haring, Kurt Schwitters and Roy Lichtenstein. According to a statement from the US Attorney’s office, Righter also admitted to using the fake art as collateral for loans on which he later defaulted ...."

Previously mentioned here.

"Protest Art Fate Tied to Obscure, Rarely Litigated Copyright Law"

That law being VARA. Story here.

Tuesday, July 14, 2020

Inigo Indicted

Alex Greenberger has the story at ARTnews.

Sunday, July 12, 2020

"The lawsuit could serve as a cautionary tale ... for galleries moving more heavily into online sales."

The Art Newspaper: Painter Pat Lipsky sues over digitally ‘distorted’ images of her work.

This is interesting:

"Lipsky is suing under New York State’s 1984 Artist Authorship Rights Act, ... a precursor to the 1990 Visual Artists Rights Act .... Megan E. Noh, a partner at the New York law firm Pryor Cashman who is representing the artist, says that the federal statute 'does not apply to the distortion of images of artworks but only to the physical distortion and destruction of the actual work,' while the older New York law expressly covers reproductions, such as photographs used for sales purposes."

Thursday, July 09, 2020

"Nahmad received a WhatsApp message from Russian magnate Leonid Friedland, the CEO of Phillips’s parent company, noting that the guarantee could be cancelled in the case of 'natural disaster, fire, flood, general strike, war, terrorist attack… or chemical contamination.'"

artnet's Eileen Kinsella:  Art dealer Joe Nahmad is suing Phillips after the auction house pulled out of a $5 million guarantee deal for a work by Rudolf Stingel.

Related.

"The controversy in Lexington, Ky., is similar to one at a San Francisco high school, where a series of murals depicting the life of George Washington upset students and parents because they showed scenes of slaves at work in the fields and barns of Washington’s Mount Vernon and, in one, Washington pointing westward over the dead body of a Native American man."

The New York Times: Students’ Calls to Remove a Mural Were Answered. Now Comes a Lawsuit.

On the similar San Francisco case -- where "the high school’s alumni association later sued, and there has not yet been a final conclusion in the legal battle" -- see here.

The plaintiff in the Kentucky case is Wendell Berry — "the writer, farmer and longtime Kentuckian" and whose wife (and co-plaintiff) is a niece of the artist who painted the mural.

Here is the complaint.

Interestingly, "at the center of the Berrys’ lawsuit is the argument that the mural is held in trust by the university, on behalf of the public."

Held in the public trust!

Kentucky-based conceptual law professor Brian Frye tweets: "I will confess that I see no basis for standing nor any viable claim. Removing the mural may or may not be the right call, but it's up to the University."

Saturday, June 27, 2020

Is there a case for arts optimism during a pandemic?

Economist Tyler Cowen gives it a shot here.

"A Charles White Drawing Went Missing From Howard University. After 40 Years, It Appeared at Auction—and Now Howard Wants It Back"

Sarah Cascone has the details on an interesting ownership dispute here. Sotheby's has withdrawn the work from sale while Howard and the consignors battle it out.

Saturday, June 20, 2020

Malcolm Gladwell on Deaccessioning (UPDATE 3X)

Or at least on how museums account for their collections.

He views it as a species of hoarding. I've had the same thought myself. As have others.

Listen here.

UPDATE: Good two sentence summary here: "His takeaways will not please museum traditionalists. First, he contends, it’s shady that museums get to avoid valuing their art collections in financial statements—and it’s even more concerning that institutions would rather let go of staff than objects, especially when most of the items are just squirreled away in storage."

UPDATE 2: Hoarders episode 2 here.

UPDATE 3: Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye responds here.

Thursday, June 18, 2020

"He used his cell phone constantly, took tennis lessons several times a week, frequented a nearby coffee shop, and become involved in animal rescue efforts. He even adopted a dog of his own." (UPDATED)

Great piece by Eileen Kinsella on Inigo Philbrick's time in Vanuatu: "He Didn’t Hide Who He Was."

And some choice words from Kenny Schachter.

Also on the criminal law docket, collector Angela Gulbekian, "who left the U.K. ahead of trial on theft charges was arrested in Portugal."

UPDATE: More on the Gulbenkian story from Sarah Cascone here and Alex Greenberger here.

Wednesday, June 17, 2020

New artist resale rights contract with a charitable twist

Story here. Excerpt:

"Del Pesco then reconnected with an old friend, Lauren van Haaften-Schick, a curator and writer who was researching this very topic for her PhD dissertation at Cornell University. Along with the art lawyer Laurence Eisenstein, she helped draft a document that designates that 15% of resale profits go to a charitable organisation of the artist’s choice. The agreement is available online at artistcontract.org, and will soon be promoted by Kadist Art Foundation."

I participated in a really interesting roundtable with van Haaften-Schick on the subject of resale royalties a couple summers ago. Link here.

"However, we do make a distinction when a third-party entity wants to take advantage of Chris Burden’s artwork and make money off of it in a way that is not aligned in the Chris Burden Estate’s interest, and in this case that commercial distinction is what made it very important for us to actively assert our rights."

ARTnews: Chris Burden Estate Files Copyright Infringement Lawsuit Against Indonesian Theme Park.

Monday, June 15, 2020

"When his schemes began to unravel, Philbrick allegedly fled the country. Now he is in U.S. custody and facing justice."

Inigo Philbrick has been arrested.

And traveling in the other direction, Mary Boone has been released from prison.

Monday, June 01, 2020

"Inevitably, the AAMD’s response to its member community’s urgent needs will be simultaneously criticized as opening the floodgates to sell off priceless treasures meant to benefit the public ..."

". . . and as doing too little to enable museums to stay afloat during the most significant financial crisis faced by the arts and culture sector—and perhaps the world—during our lifetimes."

Megan Noh on the recent changes to the AAMD's stance on deaccessioning, which she says "are far from a panacea to the museum communities’ current woes: these special dispensations are narrow, subject to pre-conditions and external legal requirements, and must be implemented in keeping with broader ethical and policy considerations."

Tuesday, May 26, 2020

Ninth Circuit Reinstates Authentication/Defamation Lawsuit

I first posted about this case back in 2017 under the headline "Here's what can happen when you say a work is fake."

The district court dismissed the case in 2018.

Now the Ninth Circuit has reversed. You can read the decision here.

The main grounds for reversal had to do with the issue whether the defendant had to have known the specific identity of the plaintiff at the time of the allegedly defamatory statements (answer: it did not), but the Court also threw in the following:

1.  Rejection of the district court’s conclusion that a jury could not conclude that certain of the statements at issue -- which remember were typical authenticity statements -- implied “an assertion of objective fact under the circumstances." In other words, a statement that a work is inauthentic can be considered an assertion of fact for purposes of a defamation claim.

2.  Rejection of the argument "that an assertion that a painting is a fake is categorically not a communication that may be defamatory of a seller who has sold—and warranted—it as authentic." In other words, a statement that a work is inauthentic can, depending on the circumstances, form the basis of a claim that the seller has been defamed.

3.  Holding that, whether or not the authentication claims "might be understood as an opinion," a jury "could easily find otherwise given the language used." In other words, a statement that a work is inauthentic is not necessarily opinion (and therefore can in theory form the basis of a defamation claim).

So once again: here's what can happen when you say a work is fake. As a general rule, it's still a good idea to keep quiet.

"Selling to Survive"

Saturday's CBS This Morning had a segment on the changes to the AAMD deaccessioning guidelines.

It's about four minutes long and worth watching in its entirety.

Couple things worth mentioning.

There's no mention of the public trust. The new rationale for the general rule, offered by AAMD president Brent Benjamin, is that "the idea is that you don’t benefit today’s visitors at the expense of tomorrow’s, and you don’t benefit tomorrow’s visitors at the expense of today." But it should be obvious that that doesn't really make any sense if you think about it. First of all, almost every dollar a museum spends today, on programming, on engaging with today's visitors, and so on, is in some sense benefiting today's visitors at the expense of tomorrow's. You could always just put that money in the bank and save it for the future, to benefit tomorrow's visitors. There's no way museums can sensibly do this sort of intergenerational calculation for every decision they make.

More to the point, how in the world does it benefit today's visitors or tomorrow's visitors if a museum is forced to close its doors? Doesn't Benjamin's principle argue in favor of selling whenever a museum faces a financial crisis (i.e. not just in a pandemic)?

Maybe they should have stuck with the public trust.

I also really liked Baltimore Museum of Art director (and aggressive deaccessioner) Christopher Bedford's statement of what should really matter to museums: "Serving our publics. Being vital, being relevant, keeping our doors open."

I think that's exactly right, and not just till April 10, 2022.

Tuesday, May 19, 2020

"Why the AAMD's move on deaccessioning matters so much"

Mark Gold and Stefanie Jandl explain.

Bottom line: "Going forward, it will be extremely hard for the AAMD–or anyone else–to pass judgment on a museum’s decision in the face of any existential threat."

That's correct.

The logic of the AAMD's current position seems to be that (non-acquisition related) deaccessioning is okay if the entire sector is experiencing serious financial strain, but not okay if any individual museum is experiencing serious financial strain. I just don't see how that makes sense.

"When it’s a matter of survival, let museums sell art"

Says the Boston Globe editorial board.

Remember, prior to about a month ago that statement -- when it's a matter of survival, let museums sell art -- would have been considered repulsive, beyond the pale, self-evidently unethical.

A Museum Director Responds To Those Who Have Suggested The Museum Should Dip Into The Endowment

Sort of.

Friday, May 15, 2020

"What Legal Rights Do Artists and Galleries Have During a Pandemic?"

Helpful overview here.

"New Hampshire mother and son in art fraud case want $250 million"

What's interesting about that is that the mother and son lost the art fraud case. Collector Andy Hall won a $465,000 judgment against them in 2018.

Now, "[i]n a lawsuit the mother and son filed, the pair allege that media outlets like The Keene Sentinel, New Hampshire Public Radio, The Concord Monitor, and the Monadnock Ledger Transcript, defamed them by reporting on the case incorrectly."

Monday, May 11, 2020

Is this repulsive?

Architectural Digest: "French news outlet Le Figaro reports that the Mobilier National, the country’s national furniture collection, will auction off an estimated 100 pieces of furniture and objets d’art to raise funds for the Foundation for Paris Hospitals and French Hospitals."

Does that feel repulsive to you? It doesn't feel repulsive to me.

Sunday, May 10, 2020

"Social Media Influencers Beware – Street Art Is Protected by Copyright"

A warning from DLA Piper's Michael Garfinkel.

Clocks and other things that need cleaning

The latest weekly roundup from Sergio Muñoz Sarmiento includes a mention of my long-ago dust-up with now Pulitzer Prize winner Christopher Knight and also covers the cut up Damien Hirst print and Sotheby's struggles, among other things.

Wednesday, May 06, 2020

An Update on the Fairchild Botanical Gardens Infringement Lawsuit

From Amelia Brankov here. Background here. Sounds like the Garden is taking a very aggressive, very artist-unfriendly position:

"Last month, Fairchild moved to dismiss the artist’s lawsuit.  By its motion, Fairchild claims that it cannot be liable for copyright infringement because Munro’s artworks are not copyrightable.  Fairchild argues that Munro claims copyright protection in 'fiber-optic light products' which encompass his sculptural works, but those light fixtures are mere useful articles containing no conceptually separable artistic design features and are thus not subject to copyright protection."

"One thing on which the creditors all seem to agree is that the current assets of Paddle 8 will be insufficient to cover its debts by a considerable margin."

More on the Paddle8 bankruptcy from Nicholas O'Donnell, including how the New York consignment statute may or may not come into play.

Saturday, May 02, 2020

"Avrich’s greatest feat was getting Freedman to talk candidly about the faked works, which were sold to collectors as bona fide Abstract Expressionist masterpieces."

More on the new Knoedler documentary.

"Despite the widespread media attention, element of MSCHF’s venture has gone undiscussed: VARA."

The Fashion Law on the recent news that the artist collective MSCHF bought a Damien Hirst spot print and then cut it up into 88 separate spots that it's offering for sale.

Force Majeure in the Age of Covid

An overview from Thomas and Charles Danziger.

For Love or Money

With deaccessioning back in the news, this might be a good time to mention a new collection of essays, co-edited by friend of the blog Mark Gold, called For Love or Money: Confronting the State of Museum Salaries, an issue perhaps more relevant than ever. It includes an essay by Michael O'Hare, who was mentioned in Sebastian Smee's piece in the Washington Post this week. Art Law Blog readers can get a 10% discount by using the code AUTO 10%.

Thursday, April 30, 2020

"This is how bad things are for museums: They now have a green light to sell off their art"

Sebastian Smee in the Washington Post.

It's a pretty levelheaded piece, as these things go, but it fails to grapple with the fact that (as his references to the MFA and the Baltimore Museum of Art show) museums have always had a green light to sell off their art. The AAMD's recent announcement did not provide a green light that wasn't there before. It only broadened the acceptable criteria for using the proceeds of sale.

Monday, April 27, 2020

"To Keep the Industry Alive, the AAMD Must Permanently Give Museums Freer Rein to Sell Work" (UPDATED)

This guy makes a very compelling case at ARTnews.

UPDATE: Brian Frye: "The jig is up, folks."

Tom Flynn: "[E]ven without the curse of coronavirus, deaccessioning was always going to be an inevitable consequence of the essentially unsustainable nature of many museum collections."

Victoria Reed: "I don't know if the AAMD stance is a turning of the tide as much as it is an acknowledgment that US museums are in really, very dire financial circumstances at the moment."

"Like many crises, it is hard to imagine the old rules sliding neatly into place afterwards."

Nicholas O'Donnell: How far can museums go to stay afloat during the current crisis?

"Does appraising art ... reduce the appraiser’s appreciation for art the way working in a pork factory might reduce a worker’s appetite for bacon?" (UPDATED)

Marginal Revolution: Corrupted by Commerce? (The answer, by the way, seems to be no: "In fact 'a majority of the assessors stated that ascribing values to art actually increased their admiration for paintings, photographs, sculptures, and other creative work.'")

UPDATE: Derek Fincham comments: "The article is well-written and entertaining, but I just don’t think you get a complete picture of the art market by only talking with appraisers. He also ignores large areas of helpful scholarship from criminologists, totally ignores the Knoedler forgery scandal, and does not acknowledge the problems presented by the antiquities trade. But if you want an entertaining read, I can recommend it."

Friday, April 24, 2020

"Against Deaccessioning Rules" (UPDATED)

Forthcoming in the Creighton Law Review, from Deaccessioning Hall of Fame Scholar-in-Residence (and conceptual law professor) Brian Frye.

UPDATE: More from Frye here:

"Deaccessioning rules also have the unfortunate consequence of occasionally causing distressed museums to go bankrupt and dissolve, despite sitting on collections of enormously valuable artwork. The deaccessioning police' argue that this is all as it should be, and that museums should go out of business, rather than doing something as 'repulsive' as selling a work of art in order to save the institution. I find their argument ... comically weak. And I am hardly alone. Most notably, Donn Zaretsky of The Art Law Blog has been lampooning it mercilessly for years. To be honest, it's a bit like shooting fish in a barrel, given that the deaccessioning police cannot seem to provide even a colorably coherent explanation of why it is repulsive to sell a work of art for the purpose of saving a museum, but totally fine to sell a work of art because the museum wants to own a different one."

Thursday, April 16, 2020

So you mean it's not so repulsive after all? (UPDATED 4X)

A couple days ago I quoted Allan Schwartzman as saying ""I can’t imagine that the museum associations will not be obliged to rethink the core requirements of economic survival in relation to some of the assets that they own in their collections."

I added:

"Think of it this way. The Guggenheim (to take one example among many) just announced that it is furloughing 92 employees and reducing pay for another 85. If that could have been avoided by selling one work from its collection, would you do it? And if your answer is no, would you say an opposing view is repulsive?"

Well, now comes news that "the field’s leading professional organization has adopted temporary measures aimed at giving them greater flexibility in how they manage their finances. The Association of Art Museum Directors ... said on Thursday that, for the next two years, it will not censure or sanction museums that engage in some activities typically prohibited by its policies, including using income from restricted funds for general operating expenses."

This is a big deal and strikes me as obviously correct. (Though in typical fashion "the resolutions do not change AAMD’s actual governing standards. They merely lift the possibility of sanctions through April 10, 2022" -- so it's still technically repulsive but there will be no penalty for the repulsiveness, at least for the next two years.) It never made any sense to say there were no possible circumstances in which selling art to generate operating funds could be justified. The pandemic is a very obvious example of such a circumstance, but clearly not the only one. The right approach should always be "to weigh the actual costs and actual benefits and try to determine whether, on balance, all things considered, the [proposed] sale is a good idea."

UPDATE: Some other reactions to the news.

Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye: "OMGOMGOMG. The AAMD is apparently suspending its deaccessioning policies for the next 2 years. So, selling art for capital expenses is still, repulsive, but we'll hold our nose?"

Mark Gold (who as far back as 2010 was asking: "Why not make it ethical for a museum to weigh priorities and make difficult choices without fear of condemnation and ostracism?"): "So the survival of a museum is relevant to the applicability of "ethical rules" of museum associations?  Museums with existential threats have been saying that for years.  Nice to finally have broader recognition of that, but sorry it took a pandemic. ... It's about time that the survival of museums and the support of their staffs get the priority they deserve."

Lee Rosenbaum understands the consequences of the move -- "How will AAMD’s watchdogs ever again be able to censure or sanction individual museums (as happened with the National Academy in New York and the Berkshire Museum in Pittsfield, MA) if they resort to monetizing their art in an attempt to secure their economic futures in future years, after the national emergency has passed?" -- but even she is on board: "For now, I’ll grudgingly concede that AAMD’s current action is a justifiable emergency rescue operation for the entire field, not merely an easy fix for a few poorly managed institutions."

And finally, Jonathan T.D. Neil says the changes actually don't go far enough because they only allow the use of interest (not principal) from acquisition funds: "Using interest rather than principal isn't going to cut it. Museums directors should be set free to sell works and then to use the entirety of that income to support their employees. That's a resolution that would be easy to commit to. ... Prioritizing assets (yes, they are assets) over people in extreme circumstances such as this (22m unemployed) is getting the value system wrong. If you are committed to your audiences, your publics, and to sustainability, it's the right thing to do."

UPDATE 2: Sergio Muñoz Sarmiento: "My more controversial side says that this whole deaccesioning in the time of the pandemic is really just hogwash. I mean, seriously, who cares what the AAMD thinks? At this point art institutions (museums, etc.) are so entrenched in the art stock market–which is to say, commercial viability–that the notion of a 'public good' has become nothing but academic and journalistic fodder."

UPDATE 3: Related: "This crisis has exposed the fragility of how museums do business. Very few have the cash reserves needed to continue operating."

UPDATE 4: Also related: "Still, the ability of arts organizations to weather this storm, while backstopped by state and philanthropic money, is, at best, tenuous. Once we get past the current crisis, arts organizations may need to rethink their funding models."

A documentary about the Knoedler scandal is about to be released

You can watch the trailer here.

Tuesday, April 14, 2020

"But in reality, the CASE Act will just help predatory law firms extract even more unjustified settlements from unsuspecting businesses and charities."

Conceptual lawprof (and Deaccessioning Hall of Fame Scholar-in-Residence) Brian Frye is not a fan of the proposed copyright small claims court: "The CASE Act will only make it cheaper and easier for copyright troll law firms to pursue meritless claims and enable them to extort settlements from blameless defendants. Trolls won’t even have to file an actual complaint in federal court, just what amounts to an administrative action before an agency appointee. That’s a mighty big stick, compared to a threatening letter."

Background here. More from Daniel Grant in the Art Newspaper here.

"I can’t imagine that the museum associations will not be obliged to rethink the core requirements of economic survival in relation to some of the assets that they own in their collections."

Speaking of deaccessioning ... the above quote is from Allan Schwartzman's latest podcast with Charlotte Burns (it's just a passing thought in a much larger conversation about what a post-Covid art world might look like that's well worth listening to in its entirety).

I think that's his way of saying the museums may need to relax their strict rules regarding "operating cost" deaccessioning. Think of it this way. The Guggenheim (to take one example among many) just announced that it is furloughing 92 employees and reducing pay for another 85. If that could have been avoided by selling one work from its collection, would you do it? And if your answer is no, would you say an opposing view is repulsive?

Tell Steven Miller Again About the Public Trust

All American Museum Collections Are For Sale, Just Make An Offer.

"Thus, the Players, who were neither requested nor agreed to limit the display or depiction of the images tattooed onto their bodies, had implied licenses to use the Tattoos as elements of their likenesses."

I've mentioned before that there have been 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). Well, one video game maker has just won a significant victory in the Southern District in one of the cases, including (but not only) on implied license grounds, which should make Christopher Sprigman and Annmarie Bridy happy. Story here. Opinion here.

Art law scams, screw-ups, etc.

Assorted art law (and related) thoughts from Sergio Muñoz Sarmiento, including on the Christie's sales tax story ("During these times when not too many Benjamins are circulating, might be a good idea to play everything smart and maybe a little 'conservative'?), Dave Steiner's piece on the Second Circuit's recent 5Pointz decision ("Steiner’s question on how the developer/defendant in this case could have rebutted the plaintiff’s argument that 5Pointz was NOT a work of recognized stature is exquisite. How would the defendant’s rebut 'recognized stature'? Let me tell you that I cannot find one, not one, person in the art industry that is willing to state that 'something' is not art. Good luck defendants."), and Kenny Schachter on his relationship with The Talented Mr. Philbrick ("You’ll probably wonder, as does yours truly, how a seasoned art dealer like Schachter got played for a million like a tourist in Times Square.").

Friday, April 10, 2020

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.