Tips for Year-End Charitable Donations

From the IRS.

Exactly

In an interview with Sarah Douglas, David Gordon, former director of the Royal Academy of Arts in London and the Milwaukee Art Museum, has this to say about deaccessioning:

'The position of the American Association of Museums and the Association of Art Museum Directors is that it is always wrong unless the funds are used to buy new art. I disagree. Suppose you have a museum in a city that has fallen on hard times and its base of support has diminished but it still has a great collection. You wish to make sure that the museum stays open six days a week, that its artworks are being conserved and that it’s able to put on adventurous exhibitions, but you don’t have the money to do any of this. As you cut costs, you are in particular danger of weakening the conservation program, so that the fundamental function of the museum, as a guardian of works, is jeopardized. In that circumstance, it seems wrong to say, 'Well, you can’t do anything that involves the art.'"

I'm immediately inducting Gordon into my Museum Director Hall of Fame (along with Hugh Davies, Richard Armstrong, and Christine Miles). I mean, how is what Gordon says even remotely controversial?

Thanks to the Deaccessioning Blog for the pointer. Related Deaccessioning Blog posts today:

Did Deaccessioning Thoughts Lead to RISD Director's Ouster?

Economic times will force us to face reality.

Drouot Charges

Preliminary charges have been filed against nine employees of Drouot auction house in Paris in the stolen art case mentioned in the weekend wrap-up here. The New York Times explains that "under French law, preliminary charges give the judge more time to investigate and determine whether to send the case to trial." Mark Durney says: "Now that charges have been filed, it should be interesting to see if any other illicit art surfaces during the process of discovery."

"We can confirm we had a report of a stolen brick from a gallery and we are investigating it"

A brick work by artist Gavin Turk was stolen from a gallery -- and replaced with a much less valuable brick, with the words "Thank You Have a Nice Day, Next" printed on it. Story here.

"I should never have tried to cover it up, and I regret that more than anything in my life"

Shepard Fairey talks to New York magazine. Among other things, he says that "since the lawsuit started, I’ve been very careful. I collaborate with photographers, or licensed photographs, or shoot my own photographs and use friends and family as models."

"A really good example of the disjoin between what the law says and what people think the law says"

Lawprof Jacqui Lipton reminds us that the Copyright Act is "a strict liability statute" -- "the intention to infringe is irrelevant."

Weekend Links

A bunch of art law stories over the last few days:

• Bloomberg reports that "Italian police seized art work valued at more than $149 million belonging to Calisto Tanzi, founder of Parmalat Finanziaria SpA, who is on trial for fraud linked to Italy’s biggest bankruptcy." Lots more from Greg Allen, who says "there's little to warrant the term 'masterpiece' at all, and it's hard to see how to get to the EUR100 million value the police claim the stash is worth. But it makes for a neater headline."
• Edelman Arts apparently got a $750,000 default judgment against Gmurzynska gallery in a lawsuit over a damaged painting, then got US marshals to seize four paintings from the Gmurzynska stand at Art Basel Miami Beach "only 90 minutes before the first VIP guests entered" -- but the matter was then quickly resolved and the works returned. The Art Newspaper has the story here.
• "French police detained 12 people in a sweep of a respected Paris auction house Wednesday after finding a stolen Courbet painting worth $1.3 million at an employee's house."
• An update on a violent art theft in the U.K. a couple of years ago.
• "A reminder of how clever fraud can be."

"It is easier to assert a conspiracy than to comprehend a complex reality"

The Philadelphia Inquirer prints the comments of Barnes chairman Bernard C. Watson at last month's groundbreaking at the new site. He begins by noting that when he joined the Board of Trustees in 1999, "the foundation's finances were in shambles." He says philanthropists and foundations weren't interested in giving money to "an organization that had a legacy of expensive and distracting litigation, no credible business plan, or a governance structure that would make implementation of such a plan possible." And, he adds, "none of the people who continue to raise their voices in angry objection to moving the collection to the Parkway reached into their pockets to support us in any meaningful way in Merion."

He also says that the move "was, in fact, anticipated by Section 11 of the Barnes Foundation Indenture," which includes the following:

". . . should it for any other reason become impossible to administer the trust hereby created concerning said collection of pictures, then the property and funds contributed by Donor to Donee shall be applied to an object as nearly within the scope herein indicated and laid down as shall be possible, such application to be in connection with an existing and organized institution then in being and functioning in Philadelphia, Pennsylvania, or its suburbs."

"Why stop to figure out just what is worrisome about the new rules and proposed laws when you can simply express indignation or outrage?"

Jim Johnson notes a NYT story on "a bill before the French Parliament that would require labeling of any advertising photograph that has been retouched."

"The film, for me, seriously undermined its own credibility by committing errors of substance and emphasis"

Lee Rosenbaum previews her review of the Barnes documentary, The Art of the Steal. I wasn't too impressed with the movie either.

"It raises the question of whether a private foundation such as this has any legal obligation ... to authenticate"

An important decision yesterday from the Appellate Division on the obligation to authenticate. For the most part, the case should provide a measure of comfort to artist foundations and authentication committees, but, as we'll see below, some uncertainty remains.

The case involves two theatrical stage sets (and related material) that the plaintiff claims are works by Alexander Calder. He submitted them to the Calder Foundation for authentication in 1997. He claims he never got a response one way or the other, and that without a confirmation of authenticity from the Foundation, he cannot sell the work. The trial court granted the defendants' motion to dismiss. The First Department has now affirmed.

First, the good news for similarly-situated foundations. The panel begins by noting:

"Whether the art world accepts a catalogue raisonne as a definitive listing of an artist's work is a function of the marketplace, rather than of any legal directive or requirement. As a consequence, neither the creation of such a catalogue nor its inclusion or exclusion of particular works creates any legal entitlements or obligations" (emphasis added).

It adds:

"[A] declaration of authenticity would not resolve plaintiff's situation, because his inability to sell the sets is a function of the marketplace. If buyers will not buy works without the Foundation's listing them in its catalogue raisonne, then the problem lies in the art world's voluntary surrender of that ultimate authority to a single entity. If it is immaterial to the art world that plaintiff has proof that the sets were built to Calder's specifications, and that Calder approved of their construction, then it will be immaterial to the art world that a court has pronounced the work 'authentic.' Plaintiff's problem can be solved only when buyers are willing to make their decisions based upon the Work and the unassailable facts about its creation, rather than allowing the Foundation's decisions as to what merits inclusion in its catalogue raisonne to dictate what is worthy of purchase."

In sum, the case turns on "whether a duty is owed to plaintiff by ... the defendants that would entitle him to any of the relief [he] seeks — whether based on the Foundation's not-for-profit status, or its explicit or implicit promises or assertions, or its unique position as the sole arbiter of whether work will be included in Calder's catalogue raisonne." The panel "discern[ed] no such duty on defendants' part, and therefore no enforceable right of plaintiff to relief against them."

So far, so good for foundations that authenticate, or which are putting together catalogues raisonne: the quoted language would seem to suggest that they can reject work without worrying about getting sued. But then we come to the panel's discussion of the cause of action for "product disparagement."

The panel begins by noting that "the difficulty of applying the product disparagement cause of action to the assertions made in the present case is that plaintiff here has alleged no affirmative publication of a false statement to third persons." But, it continues, "as a practical matter, the denial of authentication is arguably indistinguishable from a direct assertion of inauthenticity." So failing to authenticate the work, or omitting it from the catalogue, is really just like affirmatively announcing to the world: "This work is not authentic. Stay away from it."

The panel acknowledges that "there is no question that adopting this approach and treating the Foundation's non-response as a publication asserting the Work's inauthenticity to the world at large would constitute a substantial expansion of the law. Yet the fact that non-inclusion in a catalogue raisonne is understood in the art world as a conclusion that the work is not authentic tends to support the application of the cause of action in circumstances such as these" (emphases added).

After taking us that far, though, the panel steps back . . . and dodges the issue: "However, we need not come to a conclusion on that point in this case because the claim must in any event fail on statute of limitations grounds." The statute of limitations for product disparagement is one year. The plaintiff submitted the work to the Foundation in 1997/98; by 2004/05, according to his own complaint, he is losing potential sales because of the Foundation's refusal to authenticate the work. Since he didn't bring suit until 2007, his claim is therefore time-barred.

The other door that was left at least partially open relates to the antitrust claim (under the Donnelly Act, New York's antitrust statute). The panel attempts to distinguish this case from the currently pending lawsuit against the Warhol Foundation, and in so doing provides a blueprint for future plaintiffs to survive a motion to dismiss:

"In holding that the complaint in [the Warhol case] successfully stated a claim for an illegal market restraint and monopolization, the district court cited a number of alleged facts: that the Board made unsolicited suggestions to owners of Warhol works that they should submit their works for authentication; that such policies as the Board has regarding authentication were inconsistently applied; that the Board reversed prior determinations authenticating works; that the Board refused to authenticate works that the Foundation had previously attempted to purchase; and that, unlike other such boards, which are composed of well qualified and well known independent experts, the Warhol Board is made up of individuals who lack experience and who are not independent of the Warhol Foundation. Plaintiff's complaint here contains virtually none of the allegations that made the restraint of trade claim viable in the [Warhol] case" (emphasis added).

I suspect this will (now) be the last complaint in this genre about which that can be said.

"Museums have mountains of stuff in their basements, which just takes up space. They're in limbo"

Interesting article by Daniel Grant in the Maine Antique Digest on museum "swaps."

"Until now, it was against the law for any British national museum to let go of any object in its collection, no matter what the reason"

Now that's taking the idea of the "public trust" seriously. No matter what the reason. What we have here is something else entirely. I believe Hugh Davies has found the technical term.

"Former Guggenheim Bilbao Finance Chief Sentenced for Thefts"

32 months. Earlier post here.

"Scanning alone is not creative enough to warrant its own copyright"

An interview with Peter Hirtle on Cornell University Library's new permissions guidelines for public domain images [via].

"Ideally, this will assist in the deconstruction of art theft as the sexy and elegant criminal enterprise"

A self-guided London art theft walking tour from Mark Durney.