The Art Law Blog

Art Dealer Faces Fraud Charges

2012-01-28T00:09:00.002-05:00

The NYT's Patricia Cohen has the details.

Overtime

2012-01-26T23:28:00.000-05:00

The University of Alabama's lawsuit against artist Daniel Moore is still going! Oral argument on the appeal scheduled for Feb. 2. Jon Solomon of The Birmingham News says it's "embarrassing" and a "PR nightmare" for the university.

Prince-Cariou News

2012-01-26T22:56:00.000-05:00

Patrick Cariou's lawyers filed their appellate brief yesterday. Haven't had a chance to read it myself, but in the meantime, here are reports from ARTINFO's Julia Halperin and Artnet's Rachel Corbett and commentary from Peter Friedman.

"The new lawsuit seeks some $14 million from Mr. Gagosian for various alleged misdeeds in the sale of Roy Lichtenstein’s Girl in Mirror."

2012-01-26T22:28:00.000-05:00

Dan Duray has the details on a new lawsuit involving Gagosian Gallery and the Cowles family. He points out that, were it not for this suit, "news might not have broken last week that the lawsuit between [Gagosian] and collector Robert Wylde had been settled for $4.4 million." For background on that earlier suit, see here.

"While it may sound like a good idea in principle, the law is misguided for several reasons."

2012-01-24T12:25:00.000-05:00

In the NYLJ, Judith Prowda, the Chair of the NYSBA Entertainment, Arts and Sports Law Section, argues against the proposed resale royalty bill. She says "empirical studies have shown that the resale royalty right is ineffective and the benefits highly skewed" and that "artists may in fact be worse off in the long term with the resale royalty, as dealers may have less money to promote their careers in the primary (first sale) market and instead shift their business away from royalty liable art in the secondary (resale) market." She concludes: "While it is hard to argue with the concept of fairness for artists, in reality, the law does more harm than good to the majority of artists."

"Experts have been persuaded to opine that the affair is 'Australia's largest-ever art scandal' and 'threatens to destroy trust in the local industry for years.'"

2012-01-24T11:40:00.000-05:00

An Australian art dealer has been arrested and charged with "87 offences relating to his investment art fraud scheme."

"It's not as if we're selling our opinions in competition with a photographer."

2012-01-21T15:35:00.000-05:00

"Using the photo in a judicial opinion couldn't conceivably be hurting the copyright holder."

Judge Posner helps himself to some fair use.

"Word of the disbanding comes amid several major forgery scandals that have entangled a number of art authentication boards in messy litigation" (UPDATED)

2012-01-17T23:13:00.002-05:00

The Basquiat Authentication Committee is disbanding.

UPDATE: The Art Market Monitor: "The committee itself may turn out to be less important than Enrico Navarra’s catalogue raisonné."

Update on the California Resale Royalty Class Action

2012-01-17T22:34:00.000-05:00

The auction houses have filed a (joint) motion to dismiss. You can read the motion here; background about the case here.

The main argument is the Commerce Clause argument: as a "state law[] which seek[s] to regulate economic activity outside the State," the statute is "plainly unconstitutional." "[W]here State A purports to regulate the sale of goods occurring in State B simply because that sale involves a resident of State A, the regulation is invalid."

They also make the back-up arguments that the statute violates the Takings Clause -- "it confiscates the private property of select individuals and transfers that property to other private individuals" -- and is preempted by the Copyright Act (because it conflicts with its "first sale" provision, which "entitles a lawful owner of a copyrighted work to resell that work without restriction").

Along the way, they make the point that the statute is not a tax: "The resale royalty is neither exacted from the general public nor transferred to any government agency."

"Defying the economic gloom"

2012-01-12T22:36:00.000-05:00

The Mei Moses art index was up 11% in 2011, "beat[ing] the total return of the S&P 500 index of US equities by about 9 percentage points."

Bananas

2012-01-12T17:26:00.000-05:00

Courthouse News Service: Velvet Underground Wants to Free Warhol's Banana.

"A great art project indeed!"

2012-01-12T17:11:00.000-05:00

Sergio Muñoz Sarmiento: Is This Copyright Infringement of an Artist's Painting?

"Hopefully, this is one step towards the day when we can live out our faith without fear of persecution."

2012-01-12T16:53:00.000-05:00

"The Church of Kopimism, whose principal tenent is the right to file-share, has been formally recognized as a religious organization in Sweden."

"Knoedler forgery scandal grows"

2012-01-12T16:46:00.000-05:00

The Art Newspaper's Charlotte Burns reports.

Background here.

Affirmed

2012-01-12T16:37:00.000-05:00

The Ninth Circuit has upheld Halsey Minor's judgment against Christie's. The decision is here. Background here.

Nun Too Happy

2012-01-10T21:15:00.000-05:00

An upstate group of nuns have lost their fraud case against a dealer arising out of a Bouguereau they sold to him. Background here. He bought the painting from them for $450,000 and then resold it for $2.5 million. He "denied any conspiracy to defraud the nuns, countering that they are merely experiencing seller's remorse. 'Sometimes you just get lucky,' he said."

Jeopardy

2012-01-09T16:58:00.000-05:00

The Tennessean had a story over the weekend with the rather dramatic headline: "Fisk art deal in jeopardy." What that turns out to mean is just that the Tennessee Attorney General may decide to appeal the latest ruling approving the deal. It's not in any more jeopardy than it was the day that ruling came down or any day since. The deadline to appeal is Jan. 28.

We also hear from "the larger art museum community," represented in this instance by the director of the Georgia Museum of Art at the University of Georgia, who informs us that "the case could change the boundaries for selling off artworks." The AAMD and AAM say sales proceeds should be used "solely to acquire more art or maintain existing collections," but, if this decision is not put in jeopardy and the Fisk-Crystal Bridges collection-sharing arrangement is allowed to happen, those boundaries could change. But why would that be so? Isn't it more likely that the boundaries (i.e., the AAMD and AAM policies) will stay right where they are, but this deal will be an "exception" to (or, if you prefer, "violation" of) those boundaries?

Athens Art Theft

2012-01-09T16:24:00.000-05:00

Paintings by Picasso and Mondrian were stolen from the National Art Gallery in Athens today. Art Theft Central's Mark Durney says Greece's Culture and Tourism Ministry "has seen its budget cut by 35% since 2009" and wonders if "perhaps, the new austerity measures and workers’ reactions to the budget cuts contributed to the ineffectiveness of the museum’s security system and practices."

"Mr. Lucky is not, in fact, so lucky."

2012-01-09T16:18:00.000-05:00

The Gallerist's Michael H. Miller reports that a New Orleans man named Robert E. Lucky Jr. has been sentenced to two years in prison for selling fake Clementine Hunters.

"Virtually every traditional media company in the United States loudly and enthusiastically supports SOPA, but that doesn’t mean it’s good for the rest of us."

2012-01-06T12:34:00.000-05:00

I haven't been linking to all the discussion of the Stop Online Piracy Act (SOPA), but David Carr had a good overview in the Times last week, and Martha Lufkin has a piece on it in The Art Newspaper. From the latter, it seems that ARS supports the bill, while VAGA is more non-commital.

Win Win

2012-01-06T11:00:00.000-05:00

Carol Vogel reminds us today that "for more than a decade museums have been joining forces to buy" art. It’s "an arrangement that works to everyone’s advantage," a way "to defray costs while allowing a wider public to see significant work."

Exactly. That's why everyone's so excited about the Fisk-Crystal Bridges sharing arrangement. Right?

"I really don't want to see anyone get into trouble, but I'd like to get my painting back."

2012-01-05T23:20:00.000-05:00

NY1: LES Gallery Offers Reward For Return of Stolen Artwork.

"There is no road map for artists whose subject matter includes existing images."

2012-01-05T12:35:00.002-05:00

Daniel Grant: Will the Legal Status of Appropriation Art Be Decided This Year?

Test Pilot

2012-01-04T18:29:00.000-05:00

The new year begins with this back-and-forth between Judith Dobrzynski and Lee Rosenbaum over Boston's newly-revised "payment in lieu of taxes" (PILOT) program. For background about the program, start with New England School of Law Professor Eric Lustig, here and here. Inside Higher Ed has a good piece on it here, and sharp criticism from Tim Delaney, President of National Council of Nonprofits, here ("To enforce its legally unenforceable program, Boston has threatened to paint a Scarlet letter of shame on every nonprofit that does not comply with the city's demands for payments. Such coercion to obtain what the Commonwealth's law prohibits is outrageous and threatens everyone; who's next, when Boston -- or any government -- wants something the law prohibits?") and Taylor Armeding here ("These 'requests' are a bit like Don Corleone making someone an offer he can’t refuse. If a standard guilt trip doesn’t work, the university, the medical center, the museum, the charity are told in not-so-veiled terms that if they don’t pay up, good luck the next time they come before a city board seeking a permit. It is extortion, all prettied up as fairness and good citizenship.").

"If the case has had any effect so far, it has been to drag into the public arena a fundamental truth hovering somewhere just outside the legal debate."

2011-12-28T20:18:00.000-05:00

"That today’s flow of creative expression, riding a tide of billions of instantly accessible digital images and clips, is rapidly becoming so free and recycling so reflexive that it is hard to imagine it being slowed, much less stanched, whatever happens in court."

The NYT's Randy Kennedy on Prince-Cariou, fair use, and appropriation.

"So it has come to this, eh?"

2011-12-27T11:22:00.000-05:00

The Art Market Monitor: Dealer Attacks Giacometti Foundation Director Over Fakes.

"What else, in times like these, might that kind of money be used for?"

2011-12-26T18:15:00.000-05:00

Sebastian Smee feels a little queasy about the Peabody Essex Museum's recent announcement that it raised $550 million to "fund a massive expansion ...and to build up its endowment."

"Crystal Bridges is poised to make a genuine cultural contribution, and possibly to become a place of pilgrimage for art lovers from around the world"

2011-12-26T14:03:00.002-05:00

Roberta Smith weighs in.

"A moral tragedy? Good lord."

2011-12-24T21:31:00.000-05:00

More responses to Jeffrey Goldberg's broadside against Crystal Bridges. Clive Crook says the two columns are "terrible," "among the angriest attacks on [Wal-Mart] I can recall reading, which is saying something. Coming from a writer I think of as a fount of common sense they shocked me." And Michael Kinsley concludes: "Walton could have put her museum in New York, where this sort of thing belongs. Most of us don’t get to Bentonville as often as we’d like. Or she could have decided not to build it at all, for fear that journalists would start comparing her to Marie Antoinette. Would that have been better?"

On Empty Spaces

2011-12-23T13:06:00.000-05:00

Watkins College of Art professor Tom Williams is worried that "if people don’t step forward to defend [the Stieglitz] collection (and the university that houses it), and this deal goes ahead, it will disappear from this city for years at a time. These remarkable works will not be here for local schoolchildren and college students, and they will not be available to the larger Nashville community. Their habitual absence will leave an empty space in the culture of this city that may never again be filled."

"This deal," however, provides, that the collection will be there for local schoolchildren and college students for at least two out of every four years. The rest of the time it will be available to the larger Bentonville community and its local schoolchildren and college students, filling an otherwise empty space in the culture of that city.

"The 2d Circuit's forthcoming decision in Cariou likely will be a significant landmark in the debate over appropriation art."

2011-12-22T15:19:00.000-05:00

Says Paul Weiss's Lew Clayton.

"Artist Resale Royalties: Do They Help or Hurt?"

2011-12-22T14:10:00.000-05:00

Kal Raustiala and Chris Sprigman at the Freakonomics blog. Related post here.

"If the scheme is approved ..., an estimated 300,000 artists are due to receive funding."

2011-12-22T11:09:00.000-05:00

EU proposes the world's largest ever cultural funding program.

"Goldberg is really attacking the foundation on which almost all American art museums are built" (UPDATED)

2011-12-21T22:54:00.001-05:00

Bloomberg's Jeffrey Goldberg takes another whack at Alice Walton's Crystal Bridges Museum (previous whack discussed here). Judith Dobrzynski is not amused.

UPDATE: Lee Rosenbaum says "Goldberg has gone off the deep end."

"Is droit de suite really in the artists’ favor?"

2011-12-21T22:47:00.000-05:00

Abigail Esman of Forbes has her doubts.

"Four Things to Know About the Nutty New Droit de Suite Bill Introduced in Congress Last Week"

2011-12-21T10:57:00.000-05:00

From Artinfo's Shane Ferro. Related thoughts from Lee Rosenbaum here.

"The theft of public sculpture has got to stop." (UPDATED)

2011-12-21T07:50:00.003-05:00

Tom Flynn has had quite enough.

UPDATE: Art Theft Central's Mark Durney weighs in.

"It's not a good plan to redress one perceived inequity by creating another."

2011-12-20T23:06:00.000-05:00

Lee Rosenbaum, who says she has been espousing the cause of artists' resale royalties "since the '70s," is nevertheless not a fan of the recently introduced bill.

"The museum has hired a .. consultant ... to sell its permanent art collection. Some items have sold, and the proceeds were used to pay remaining creditors."

2011-12-20T22:59:00.000-05:00

A reminder of what happens when we let them fail.

The end of the line for the Fayetteville Museum of Art. [via]

More on Artists' Copyright Claims

2011-12-20T22:50:00.002-05:00

From Walter Robinson.

"Allowing museums to share in art royalties serves a double purpose, proponents of the federal bill said."

2011-12-16T16:32:00.000-05:00

"As a matter of practical politics, it figures to put a potentially powerful constituency in their corner – just as excusing art dealers and individual collectors from paying royalties stands to preempt a good deal of potential opposition."

"Perez, a museum trustee, shifted the focus away from art -- from what matters -- to himself, putting patron above artist, money above art."

2011-12-16T08:13:00.000-05:00

Here is an example of the Miami Art Museum's naming proposal drawing sharp criticism when other public institutions have been re-named with hardly a ripple of concern.

Are yoga poses copyrightable?

2011-12-16T07:47:00.000-05:00

The Copyright Office says no.

"Visual artists deserve a share in the sales and resales of their creative works." (UPDATED)

2011-12-15T14:23:00.001-05:00

The NYT's Patricia Cohen reports that resale royalty legislation has just been introduced at the national level: the proposal is to "set aside 7 percent of the price of artworks that are resold for more than $10,000 at auction houses," half of which would go to the artist and "the other half to nonprofit art museums."

Some related posts here, here, and here.

UPDATE: More from Helen Stoilas in The Art Newspaper: "The legislation, as it stands, would only apply to the resale of works at public auction houses 'with more than $25 million in sales in the prior year'. Auction houses that operate only online would be excluded, as would private galleries."

"Arkansas is America too."

2011-12-14T14:00:00.000-05:00

Bloomberg columnist Jeffrey Goldberg argues that Alice Walton's new Crystal Bridges Museum is "a moral tragedy" and a "compelling symbol of the chasm between the richest Americans and everyone else." He says the museum was built on "the exploitation" of the Wal-Mart employees "whose sweat pays for her paintings." He objects to Walton's "priorities": she "has the influence to help Wal-Mart workers, especially women, earn more money and gain access to affordable health care," but instead uses her wealth to buy art for the museum.

Reuters' Felix Salmon has a good response here, under the headline "How Alice Walton has improved America." He says, first of all, that the "sneer[ing]" Goldberg is looking a gift horse in the mouth:

"It’s not clear that Alice Walton does have a lot of influence within Walmart’s senior managerial ranks. Could Walton really help Wal-Mart’s workers earn more money and get better healthcare? Maybe she could; I’m not convinced. But here’s the thing: in what way does building a beautiful museum prevent her from doing just that? The only way, it seems to me, is if we’re in some kind of a zero-sum game, here, where the alternative to building the museum would be for Walton to take the money she would otherwise have spent on Crystal Bridges, and give it directly to Walmart workers."

And he says Walton's "impulses and her museum are admirable, whatever you think of Walmart":

"Walmart is a public company, now — it’s owned by hundreds of thousands of individual and institutional shareholders. ...Walmart has been good to Alice Walton, and she’s giving back to Bentonville and to America by building a fine museum in a part of the country which is relatively starved for cultural goodness. ... Well done to [Walton] for making that happen. Arkansas is a better place, now, thanks to Crystal Bridges, and Walton deserves our thanks. Not brickbats."

Judith Dobrzynski is with Salmon:

"Unlike many others in the art world, I have always believed that Walton was doing a good thing, bringing art to an area that sorely lacked the real thing. I have never understood the logic of those who complained about her efforts, as if non-city-dwellers should be content to travel to see art, and then, at the same time, argued for bigger government budgets for art .... I have no problem with the fact that she bought Kindred Spirits from the New York Public Library."

Fair use and appropriation

2011-12-14T13:03:00.000-05:00

Joy Garnett live-tweeted yesterday's interesting panel discussion.

Selective Bereavement Syndrome

2011-12-13T11:09:00.000-05:00

Saralyn Reece Hardy, director of the Spencer Museum of Art in Lawrence, Kansas, is "bereaved" because the Birger Sandzen museum in Lindsborg, Kansas sold a painting by Marsden Hartley. "It's a loss," she says. "It's the reason we exist, to share our collections with the public and hold them there in good faith."

Funny how no one was bereaved over the dozens of works sold by other museums at auction last month. I guess those museum do not exist to share those works with the public and hold them in good faith.

"There’s been a twisted interpretation that says Fisk has sold its art and it’s going away to this strange place in western Arkansas."

2011-12-13T10:58:00.002-05:00

"We’re sharing this collection, and it will benefit not only people in Middle Tennessee and the young people at Fisk, but the people who are now traveling to a world-class museum in Arkansas where a collection of early American art will be there to see."

"A Canadian art authenticator has cast a wider net in his defamation lawsuit against The New Yorker ..."

2011-12-13T09:37:00.000-05:00

"... , hoping to ream Gawker and about a half-dozen other media outlets and websites that publicized the magazine's original coverage."

Further thoughts from Lee Rosenbaum here.

Background here.

Is compiling a catalogue raisonné a "scholarly undertaking independent of the market"?

2011-12-13T09:30:00.000-05:00

Cristina del Rivero says no: "The inclusion/exclusion of a work submitted to a catalogue raisonné committee will affect its value on the market in a way not hugely dissimilar to an authentication board declaring a work 'Approved'/'Denied.'" (She's responding to this piece by Jack Flam.)

"Why [has] this naming proposal ... drawn such criticism when other public owned institutions have been re-named with hardly a ripple of concern?"

2011-12-12T22:20:00.000-05:00

Why indeed? The Nonprofit Law Prof Blog looks at the latest crusade of the Hall Monitors.

Don't exert yourself

2011-12-09T08:26:00.000-05:00

The AAMD's Chief Enforcement Officer continues to recommend that her organization "exert pressure" on Crystal Bridges for saving Fisk University from bankruptcy with a proposal that the Tennessee courts have found is the closest possible approximation of the donor's intent (complete adherence to such intent having been determined to be impossible), including keeping the works on the Fisk campus 50% of the time. Yeah, I guess they should be punished -- I mean, have "pressure exerted" on them -- for that. It is pretty awful.

Only Wrong When Brandeis Does It (a continuing series)

2011-12-09T08:11:00.000-05:00

In today's New York Times, Carol Vogel reports that, to finance some repairs, Kenwood House in North London is "taking a page from American museums" and "will raise money by lending parts of [its] collections to other institutions." Each borrowing museum "will pay Kenwood an undisclosed loan fee and cover the cost of insuring the art and preparing it for travel."

She meant to say rental fee for renting parts of the collection, right Hall Monitors? Or is that only important to insist upon when we're talking about Brandeis and the Rose? I just want to get the rules straight.

A little less chilly

2011-12-08T23:11:00.000-05:00

In a case that previously "sent a chill down the collective spines of the major auction houses," Christie's has defeated the fraud claims brought against it by Guido Orsi. The reason for the chilled spines was that Christie's didn't sell the work to Orsi; he bought it from someone else, who had bought it at Christie's. But the claim was allowed to proceed anyway.

And proceed it did, until a couple of weeks ago, when the Court granted summary judgment for lack of evidence of fraud:

"Orsi primarily relies upon GB's [Basquiat's father, Gerard Basquiat] testimony with regard to knowledge and intent to defraud. ...[But] GB could not identify or even describe the person with whom he spoke [at Christie's], except to state that he was fortyish and blond, 'maybe 5'8 or 5'9 maybe' (GB Dep at 126-127, 130). GB testified that he did not know the man's name, the man was just wearing a business suit with no Christie's emblem, GB did not know the man's title, and the man did not say to GB that he was from Christie's Contemporary Art Department (GB Dep. at 130-131). ...When [asked] if he ever told anyone at Christie's that he thought it was a fake, ... GB clearly asserted, 'Never' (id.). He attested that he did not tell the man that the Painting was not authentic (id). GB stated that he did not tell anyone at Christie's that he thought it was a counterfeit and did not ask the man or Christie's to withdraw the Painting from the Auction (id. at 132-133). When asked about whether he told other Christie's employees, ... with whom he had significant contact before in connection with appraising his son's estate and selling some of the paintings, some of whom worked in the Contemporary Art Department, GB again answered 'No' (id. at 134-135). It is undisputed that GB took no further action in connection with the Painting. This testimony is insufficient to raise a genuine issue as to Christie's intent to defraud and to its knowledge. ... Under the proof presented, the trier of fact would have to assume that the anonymous and unidentified person with whom GB spoke, over 20 years ago, worked for Christie's, had some authority, and conveyed what GB told him to a person with authority at Christie's, to show that Christie's had knowledge and intent. This proof, at most, creates only a shadowy semblance of an issue, insufficient on a summary judgment motion."

So Christie's wins this battle, but the spine-chilling principle of the earlier decisions -- that an auction house can be sued by someone they've never done business with -- remains in place.

"The brief is compelling and well-written, and steps perfectly into the role of an amicus"

2011-12-08T20:30:00.000-05:00

Nicholas O'Donnell was impressed with the Warhol Foundation's brief in the Prince-Cariou appeal. I discussed the brief here.

"In the long run, permitting scholars to freely publish their opinions about works of art without getting entangled in complicated, expensive and often gratuitous lawsuits will benefit history and art history."

2011-12-07T17:05:00.000-05:00

Dedalus Foundation president Jack Flam in the Wall Street Journal today:

"Since the exclusion of a work can greatly affect its market value, a good deal of pressure is sometimes exerted by owners of questionable works to have them included in the catalog. As a result, the scholarly authors of catalogues raisonnés have increasingly had to worry about potential lawsuits from collectors or dealers unhappy about the exclusion of works they own. ... As a result of this growth in litigation, many experts have been discouraged from giving opinions about authentication not only to the public but even to scholars studying other artists. Some artist-created foundations have entirely sidestepped giving opinions about authenticity by delaying the creation of catalogues raisonnés, or by declining to undertake supplements to already published catalogs. So far as I know, all such lawsuits have been unsuccessful, but they can nonetheless inflict an enormous loss of time and money on the foundations involved. ... There are laws, such as the anti-Slapp (Strategic Lawsuit Against Public Participation) statutes, that protect free speech for the public good. Since a substantial part of the U.S. art market is based in New York, the art community should work with that state's legislature to find a way to strengthen such laws so scholars can express their opinions without being intimidated or even silenced by the threat of litigation."

Everything You Ever Wanted to Know About the Knoedler Forgery Debacle But Were Afraid to Ask

2011-12-07T09:46:00.000-05:00

From Julia Halperin at ARTINFO.

Art Law Decision by Judge Kaplan in the Southern District

2011-12-06T20:48:00.000-05:00

You can read it here. Plaintiff bought 18 paintings from defendant for $9.5 million, then sued "essentially on the theories that [defendant] misrepresented the 'fair market value' of the paintings and that four of them ... were not authentic." A mixed result on the motion to dismiss -- the breach of warranty of authenticity survived, but Judge Kaplan didn't think much of the misrepresentation-of-value claims: "Insofar as [this] claim rests on the assertion that the seller warranted that the paintings were sold at fair market value when, in fact, they were sold at prices higher than fair market value, the claim is without merit. As noted previously, there is no objective, discernable fair market value except perhaps for fungible assets traded on an efficient market."

"However impoverished an institution, selling its artworks is rarely deemed an acceptable solution by the art world and the press."

2011-12-05T22:53:00.000-05:00

"But is it always the wrong thing to do? Fisk seems a good example to the contrary. The highly regarded institution, through no lack of effort, has not been able to fund itself effectively. O'Keeffe's magnificent gift has become a liability and Fisk has been unable to show it or look after it effectively. It does not intend to send the collection into private hands, nor to anyone who cannot take adequate care of it (Crystal Bridges is certainly not short of money with Wal-Mart behind it). In such circumstance, it is surely the the right choice to sell part ownership, rather than that Fisk should retain a collection it can't look after and cripple itself in doing so."

Elizabeth Emerson on the Fisk dispute.

Reves Lawsuit Against Dallas Museum of Art Dismissed

2011-12-05T20:47:00.000-05:00

Emphatically.

Background here.

"Once a sculpture is stolen, the first source of information may be scrap metal dealerships."

2011-12-05T20:09:00.000-05:00

The Art Loss Register's Chris Marinello: The Flap Over Scrap -- Theft and Vandalism in Exterior Sculptures.

Pieta bonds?

2011-12-05T08:39:00.000-05:00

Tyler Cowen: "Of course it could never work, even though it makes economic sense."

"I think time will show that Mr. Lugo is someone who has been struggling with particular difficulties and went through a very difficult six-week-to-two-month period."

2011-12-05T08:35:00.000-05:00

Not guilty plea for accused Picasso thief Mark Lugo.

"The point here is that the art market, like the stock market, runs on a combination of trust and storytelling ability."

2011-12-03T23:34:00.000-05:00

Felix Salmon on the Knoedler news.

"One day after the Upper East Side’s 165-year-old Knoedler & Co. abruptly announced it would close its doors ..."

2011-12-03T00:07:00.000-05:00

"... London hedge-fund executive Pierre Lagrange filed a complaint in Manhattan federal court alleging that the gallery sold him a forged Jackson Pollock painting for $17 million."

Related: Federal Inquiry Into Possible Forging of Modernist Art.

ALSO BREAKING: Knoedler Closing ... Effective Immediately

2011-11-30T23:33:00.000-05:00

Patricia Cohen has the story in the New York Times.

BREAKING: A little joy in Fiskville today (UPDATED)

2011-11-30T09:37:00.004-05:00

Fisk University has won its appeal in the latest round of the Stieglitz Collection litigation. It gets to enter into a sharing arrangement with the Crystal Bridges Museum -- and doesn't have to set aside $20 million of the $30 million pricetag in a separate endowment. Story here. Background here. More later when I've had a chance to read the opinion.

UPDATE: I've now read through the opinions. The majority affirms the basic cy pres ruling, but holds that "the court exceeded its statutory authority ... when it decreed how the proceeds of sale would be spent": "The court has no authority ... to effectively decree the manner by which the Collection would be used by Fisk in furtherance of its educational mission." The dissent took more of a Donor Intent Police approach: to permit the University "to monetize the Collection ... in order to infuse much needed capital" would "convert[] the Collection into money, which is in direct conflict with Ms. O'Keeffe's expressed intent. The record clearly reveals that Ms. O'Keeffe never intended for the Collection to be sold or otherwise monetized in order for Fisk University to pay its general operating expenses." It was therefore permissible for the court to allow Fisk to keep $10 million -- so that it can "rise above its current financial predicament" -- but order the rest placed in a restricted endowment.

Speaking of the Donor Intent Police, Lee Rosenbaum calls Alice Walton a "donor-intent violator" and calls for the AAMD to "strongly exert its influence" on Crystal Bridges for its bad behavior in saving Fisk from bankruptcy and keeping the Stieglitz Collection in the public domain. But it's important to note that there's no way to preserve the donor's intent here. The trial court already found that "Fisk's financial situation rendered strict compliance with the conditions impracticable," that "due to Fisk's financial situation, it was impracticable for Fisk to comply with Ms. O'Keeffe's condition that the Collection be maintained at and displayed by Fisk." The question to be determined in the litigation was which option most "closely approximated Ms. O'Keeffe's charitable intent" ... and the answer was Alice Walton's:

"To address Ms. O'Keeffe's condition that the Collection be displayed intact, the [Crystal Bridges] Agreement provides that the Collection will be displayed at the institutions on a rotating basis so that it will be available on the Fisk campus during at least two years of each student's four year matriculation at Fisk. With respect to the maintenance and display conditions, the agreement ... charges that [the Collection] committee, when determining what is in the best interest of the Collection, 'to take into account the conditions originally set out by Georgia O'Keeffe ....' In accordance with the original conditions, no item of work included in the Collection may be sold or exchanged, no item of work may be added to the Collection, and the Collection will be known, in perpetuity, as the 'Alfred Stieglitz Collection.'"

So the Tennessee courts have ruled that, far from being a donor-intent violator, Walton is actually the closest donor-intent approximator in this case. I suppose reasonable minds could differ about that -- one could argue that one of the Attorney General's alternative proposals was actually closer to O'Keeffe's intent, as if there were some kind of ruler to measure the distance between these things -- but it would be exceedingly odd for the AAMD to "strongly exert its influence" on Crystal Bridges for doing what the courts have sanctioned as the closest possible substitute for the donor's intent.

What We Talk About When We Talk About Appropriation

2011-11-29T17:10:00.002-05:00

Contemporary Art After Cariou v. Prince, a panel discussion at the City Bar Association, Dec. 13.

Show Me the CARFAC

2011-11-29T17:07:00.000-05:00

Andrew Russeth notes that "a group that lobbies on behalf of Canadian artists is calling on the country’s government to enact a resale royalty law that would guarantee artists a five-percent cut when one of their artworks is resold."

Related posts here and here.

"There've been so many deaccessions this fall that they seem routine ..."

2011-11-29T16:54:00.000-05:00

"... hardly worth noting."

"It is a global problem involving huge sums of money. They are banking on enough people being scared into paying."

2011-11-29T12:00:00.000-05:00

The Guardian: Art dealers are latest targets of online fraud.

"Overall, the three amicus briefs make a strong argument for—at the very least—a remand."

2011-11-28T22:03:00.000-05:00

The Fordham Intellectual Property Law Journal on Prince-Cariou: "The Southern District decision was too narrow in its transformative use analysis, and too broad in its application of liability."

"The problematic charitable-donation tax deduction"

2011-11-28T17:16:00.000-05:00

Felix Salmon wasn't impressed with Stephen Carter's recent piece on the virtues of the charitable deduction. The issue comes up in the context of his discussion of an article over the weekend in the New York Times on elements of Ronald Lauder's tax planning. Salmon's view is that "there is very little public policy served by giving Lauder [a tax deduction for transferring art to the museum he controls]. At the margin, does it make him more likely to open up a lovely museum of early 20th Century German and Austrian art in a Fifth Avenue mansion? Possibly. But the connection is tenuous enough that it’s hard to have any conviction in." Carter had argued that it is "silly" to "suppose that eliminating the deduction will have little effect on donations."

"There seems to be no overall magic answer for authenticating works of art: every method is flawed."

2011-11-25T23:50:00.000-05:00

Georgina Adam in The Financial Times.

"One way to increase the value of your art would be to have it become part of an oddly popular/famous art theft."

2011-11-23T13:14:00.000-05:00

The Art Market Monitor on one consequence of Mark Lugo's San Francisco Picasso theft.

"By encouraging individuals to make their own choices on how to spend money for the public good, the deduction makes society as a whole better off. Let’s keep it that way."

2011-11-22T22:34:00.000-05:00

Stephen Carter pushes back against the "rising mania among politicians" to "either eliminat[e] or severely restrict[] the charitable deduction." It's interesting throughout. Among other things, he argues that it's "silly" to "suppose that eliminating the deduction will have little effect on donations":

"Consistent research over the years has shown that charitable giving ... is price-elastic, at least in the higher tax brackets, where giving disproportionately takes place. ... The price of a gift rises when the value of the deduction falls. If a taxpayer in the 35 percent bracket makes a $1,000 contribution, the 'price' is only $650, because of the $350 deduction. Should his deduction be capped at, say, half its nominal amount, then the deduction is only $175, and the 'price' rises to $825. Should the deduction be eliminated, then the price of the $1,000 contribution is $1,000. It is difficult to imagine a universe in which this rising price would have no effect on consumption of a good."

Yeah, but they totally won't be the same

2011-11-22T12:18:00.000-05:00

"The Violette de Mazia Foundation and the Barnes Foundation are pleased to announce that they have come to an agreement that will allow continued access for the Violette de Mazia Foundation’s art-appreciation classes at the Barnes Foundation’s new galleries on the Benjamin Franklin Parkway in Philadelphia for many years to come."

"It’s an insult to the tree. It has nothing to do with urbanization."

2011-11-22T09:58:00.000-05:00

In San Francisco, a spate of tagging that "appears to violate one of the tenets of the graffiti subculture."

"Why you can’t always trust auction results"

2011-11-21T21:37:00.000-05:00

Felix Salmon explains.

"Federal judge tosses book at art swindler" (UPDATED)

2011-11-21T21:24:00.001-05:00

Six years for Thomas Doyle. Background here.

UPDATE: More from the New York Times and Courthouse News Service.

"I am somewhat obsessed with this bizarre art collection and lawsuit."

2011-11-21T17:08:00.000-05:00

The Dallas Observer: Catching Up With That Fascinating Federal Case Involving Wendy Reves's Son and the DMA. Background here.

"I will take this to the bitter end with them."

2011-11-19T23:02:00.000-05:00

Janine Gordon is appealing the dismissal of her copyright infringement suit against Ryan McGinley. She's doing the appeal pro se.

"Why are original artworks valued more than identical duplicates?"

2011-11-17T17:22:00.000-05:00

From the Journal of Experimental Psychology.

"Sure, a little over $4 million is a lot of money, but is it all that economically illogical, considering how well luxury brands are doing?"

2011-11-17T17:17:00.000-05:00

The Freakonomics blog on the world's most expensive photograph.

Chicago dealer Richard Love files for bankruptcy

2011-11-17T11:37:00.000-05:00

Story here. Background here.

What's effort got to do with it?

2011-11-15T21:46:00.000-05:00

Apparently "The Art of the Steal" is being shown on the BBC (under the title "Billion Dollar Art Heist"), which has generated some press over there. An article in the Telegraph, for instance, poses the question "if more people will now see Barnes’s art, isn’t that ultimately more significant than perpetuating an old man’s grudges?" and it's worth unpacking director Don Argott's answer. "There are enough art galleries that cater to the convenience of the tourist," he says. But "with the Barnes you had to make an effort. That was part of the experience. It was the product of a unique vision, and now it’s gone it can never be replaced."

There seem to be two separate thoughts strung together there. One is in the last sentence -- the Barnes is the product of a unique vision and can't be replaced. Given that the collection remains intact, and the arrangement of the works will be precisely replicated in the new location, that doesn't seem to me to be a persuasive answer to the question.

The rest of the answer amounts to the claim that it's actually better to have a few people see the collection after "making an effort" than a lot of people see it without any effort (as if they now can roll out of bed and just kind of stumble into the museum). You hear this sort of thing a lot from opponents of the move, but what does it really mean? Let's say there's some group of people -- Group X -- who, if the Barnes hadn't moved, would have "made the effort" to see the collection (which I guess means ordering tickets and driving four-and-a-half miles to Merion; serious effort). After the move, Group X can still see the work; they're no worse off. But now a whole other, presumably larger group of people -- Group Y -- will also be able to see the work. These are the people who would not have "made the effort" to go to Merion but, now that the collection has been moved to downtown Philadelphia and therefore requires no effort to see, will visit. This group is better off. So what's the problem? Is the objection to the move really that the first group -- the effort-makers -- are deprived of the chance to expend some effort? Or is the idea that it's wrong to reward the second group -- the non-effort-makers -- by letting them see the collection?

I don't think Argott has answered the question.

Shorter Crystal Bridges Coverage

2011-11-14T14:34:00.000-05:00

Darn you, Alice Walton, for taking a bunch of work that was in the public trust and, um, keeping it in the public trust but in a less convenient location.

"U.S. Clears Art Project by Christo in Colorado"

2011-11-10T08:04:00.000-05:00

The New York Times reports that "federal regulators [have] approved a $50 million installation of anchored fabric over the Arkansas River in southern Colorado by the artist Christo." The project will include eight suspended panel segments totaling 5.9 miles along a 42-mile stretch of the river.

Ann Althouse says "I think part of the art is the interaction with the local people and the authorities. I think of it as including a performance art component that is about law."

Tell me again about the public trust (a continuing series)

2011-11-09T23:17:00.000-05:00

Judith Dobrzynski quotes from a Christie's press release noting that its Nov. 22 sale will include works from "more than a dozen of America‟s most-respected museums, including the Art Institute of Chicago; the Cleveland Museum of Art; the Corcoran Gallery of Art; the Harvard Art Museums; the Huntington Library, Art Collections, and Botanical Gardens; the Minneapolis Institute of Arts; the North Carolina Museum of Art; Louisville‟s Speed Art Museum; and Hartford‟s Wadsworth Atheneum."

The Huntington is selling 26 items. The Speed is selling nearly 50, the Corcoran 20.

All of that work, held in the public trust, to be accessible to present and future generations ... gone.

Where are the people complaining that these more than a dozen museums are guilty of treating art as commodity -- "saying it’s the same thing as a truck or computer or a chair"?

Where is Dan Monroe to worry that "letting one museum sell off two paintings paves the way for dozens of museums to sell off thousands of artworks, perhaps routinely." After these sales, isn't it going to be "impossible to control the outcome"?

Where are all the museum directors to lecture us that "museums get tax-deductible donations of art and cash to safeguard art collections for the public" and selling work "betrays that trust"?

I'm starting to get the feeling it's all a bunch of b.s.

"Nairne’s book is undoubtedly an intriguing and valuable story about the recovery of stolen art and the trials that one man went through in order to bring about that recovery."

2011-11-08T11:06:00.000-05:00

Noah Charney on "Art Theft and the Case of the Stolen Turners."

"A big part of the business today is third-party guarantees. They’ve definitely become a key component and an industry standard."

2011-11-08T11:00:00.000-05:00

A report from last night's Phillips sale.

"If you’re never, ever going to show them, I see no reason why we should keep these in the collection."

2011-11-08T08:33:00.001-05:00

I love, love, love this kind of piece, by Steven Litt in the Cleveland Plain-Dealer. The subject is the Cleveland Museum of Art's upcoming sale of 24 sculptures at Christie's (which, by the way, follows another round of deaccesioning earlier this year, in which the museum sold 32 paintings).

Normally we're told, when a museum goes to sell work and use the proceeds for anything other than buying more work, that it's the Worst Thing Ever In The History of the World because the work is held by the museum in the public trust, and it would be a horrible violation of the intent of the donors who gave the work to the museum, and it will discourage potential future donors from ever giving anything else to the museum. Why would anyone give something to a museum if the museum then can turn around and sell it whenever it feels like it, right?

But now, when a museum decides to strip two dozen works from the public trust (presumably to raise funds to buy more work, though the article is not explicit about that), we hear an entirely different story.

First of all, the "sale of works from the permanent collection, known as 'deaccessioning,' is intended to free up storage space and to take a burden off the institution."

You see? We're relieving the museum of a burden. Who said anything about a public trust? These works are a burden to the poor museum. "Art handlers have to move these things [these 'things' -- love it!], conservators have to conserve them, curators have to do research on the objects, and everybody in Collections Management [a museum department] has to maintain records," a curator at the museum tells Litt. "If you’re never, ever going to show them, I see no reason why we should keep these in the collection," he adds. Right!

We also learn that the issue of donor intent is not as simple as we are sometimes led to believe: "Many of the works to be sold at Christie’s entered the museum’s permanent collection as part of estates donated by supporters .... 'When you get entire estates, sometimes you’d take a very large group of objects and sort it out later,' [the curator] said." Ah, so, perhaps, works are sometimes given to museums as parts of larger estates, or for tax reasons (did you know that collectors get a tax deduction when they give work to the museum? It's a little known secret), and maybe the donors wouldn't be so upset if the museum decides someday, years later, to sell those works, particularly if the proceeds are used to support the larger mission of the museum, or perhaps even keep it from having to close.

Good to know! Why hasn't anyone mentioned this before?

Finally, whenever a work is sold for non-acquisition purposes, opponents of the sale ask: Where will it end? If we allow this one sale, what's to stop the museum from selling off everything (or at least two dozen sculptures and 34 paintings in the span of less than a year)? Well, don't worry. The folks in Cleveland have thought of a foolproof system of checks and balances. Are you ready for it? Here it is:

"The museum consulted numerous outside experts before deciding in each individual case whether a particular sculpture should be sold."

Not just one outside expert, mind you. Numerous outside experts. And, they considered each particular case individually. They didn't just ask "should we sell off a bunch of non-specific sculpture?" No, they looked at each individual sculpture before deciding to sell 24 of them. The public trust demands no less. Thank you, Cleveland, for your diligence.

Is it a surprise that some people might look at all of this and conclude it's all just smoke and mirrors?

"The problem with authenticating Warhol"

2011-11-07T23:53:00.002-05:00

Charlotte Burns, in The Art Newspaper.

"The museum and its superb collection have never looked better."

2011-11-06T16:14:00.000-05:00

Boston Globe art critic Sebastian Smee on the reborn Rose Art Museum.

A couple of quick notes.

First, he suggests the following as a "good working principle" for museums to follow: "Don’t sell things you received as gifts."

But the standard, AAMD position on deaccessioning is actually: Don't sell things you received as gifts unless you use the proceeds to buy more art, in which case knock yourself out.

Second, he says the lawsuit brought by the museum's supporters was settled "with Brandeis agreeing not to sell the Rose’s collection." That's not the case.

"It’s extremely difficult for me to avoid the conclusion that these super-gigantic collections represent an inefficient allocation of global resources."

2011-11-05T16:08:00.000-04:00

"If 15 percent of the stuff on display at the Louvre vanished at random, the impact on the experience of visiting the museum in particular or Paris in general would be minimal. But in the majority of the cities of the world, that 15 percent would be the basis for an excellent new museum."

Stephen Colbert is not a member of the Deaccession Police

2011-11-04T10:25:00.000-04:00

Video here. (via)

Is Charitable Giving by the Rich Really Responsive to the Income Tax?

2011-11-04T07:58:00.000-04:00

The Treasury Department's David Joulfaian examines the question. From the abstract: "The empirical findings suggest that giving by the rich may not be as responsive to the income tax as previously thought."

Freakonomics on the California Resale Royalty

2011-11-03T23:26:00.000-04:00

Over at the Freakonomics blog, Kal Raustiala and Chris Sprigman discuss the California resale royalty scheme. They point out that "if the California rule applies, buyers of art can expect, on average, to make lower profits when they resell. As a consequence, they are likely to offer less in the initial transaction." They also note that the scheme "enriches only the fortunate few who actually see their work gain substantial value":

"Let’s call them the '1 percent.' The 99 percent get little to nothing, since their art either drops in price or rises only slightly. The right to 5 percent of a later sale, in short, is like a lottery ticket—and like lottery tickets, the vast majority of ticket holders walk away empty-handed. The most successful artists are the last ones in need of aid, but the net effect of the California resale provision is to transfer wealth from unsuccessful (the lottery losers) to successful artists (the lottery winners). Sound like a familiar theme?"

Prince Appeal News

2011-11-03T20:35:00.000-04:00

This is probably a little backwards (in that I should have read Prince's direct brief first), but I had a chance to look at the amicus brief filed yesterday on behalf of the Warhol Foundation in support of Prince's position. The Foundation is being represented by the Stanford Fair Use Project, along with Virginia Rutledge and others at Bingham McCutchen in New York. You can read the brief here.

The main argument is that the district court got the transformativeness analysis wrong in two ways. First, it said that Prince's work had to comment specifically on Cariou's photographs; instead, "all that is required is a meaning, message or purpose that is 'separate and distinct' from the original." Second, it "assessed the meaning of Prince's work based entirely on Prince's testimony, not the reasonable perceptions of the viewer"; transformativeness should be determined "first and foremost by the observation of the work itself, and whether new meaning and expression may be reasonably perceived from it."

Latest in the California Resale Royalty Litigation

2011-11-02T23:39:00.000-04:00

Another class action, this one against nine California galleries.