Shloss Wins (Again)

Back in April, I mentioned that, after settling her lawsuit against the James Joyce Estate, Stanford Professor Carol Shloss had moved for an order requiring the Estate to pay her attorneys' fees. Today that motion was granted. The amount of the fees hasn't yet been set, but Anthony Falzone of Stanford's Fair Use Project, which represents Shloss in the lawsuit, says "we hope this demonstrates that inadequate respect for fair use's critical role in scholarly inquiry and free expression can have substantial and serious consequences." You can read the court's order here.

More Splasher

A lengthy piece in New York magazine this week about the Splasher, mentioned earlier here. Here's the set-up:

"Here at the beginning, then, why don’t we just lay out the mystery, the so-called facts, as plain as we can make them. In the fall, some anonymous figure started vandalizing the city’s most celebrated vandalism—by which I mean not traditional seventies-style spray-paint graffiti but a relatively new, gentrified outgrowth of that tradition that’s come to be called 'street art': multimedia works of astonishing polish and complexity and beauty, often created by artists without a 'street' bone in their bodies. Many went to art school and have grown-up jobs and lucrative gallery careers and are terrified of the cops and traditional graffiti crews. Over the past ten years, as street art has become big business—upscale art shows in London and Tokyo, advertising contracts, waves of positive media coverage, blogfuls of groupies—it’s generated exactly the kind of internal backlash you’d expect in a subculture conceived of as guerrilla warfare against consumer culture. The Splasher epitomizes this backlash. In the middle of the night, about six months ago, this vandalism vandal started hitting the scene’s most acclaimed masterpieces, works that might have gone for $10,000 or $20,000 or $30,000 in a gallery, with big sloppy splashes of housepaint—teal, white, purple, yellow, electric blue. Beneath the splash he—or she, or they, or (who knows?) us—would leave a manifesto ranting, in Marxist jargon, about commodification and fetishization and the author’s intention of 'euthanizing your bourgeois fad.' From November to March, the splashes arrived in bursts, busy weeks interspersed with long fallow periods. By the end of the campaign, observers counted nearly a hundred of them."

The story does note the "blinding irony" that "no matter how artful the best street art inarguably is, it’s still illegal—so the Splasher was only vandalizing vandalism." You can see some examples of the Splasher's work alongside the article.

Varian on Orphan Works

Hal Varian has a piece in today's New York Times on the issue of orphan works, discussed earlier here. It begins:

"Here’s a quiz question for authors: To copyright a written work in the United States, you must (a) register it with the Copyright Office; (b) insert a notice that says 'Copyright © 2007'; (c) insert a notice that says 'All rights reserved.' Answer: none of the above. Under current law, a work is automatically copyrighted the moment it is 'fixed in tangible form.'"

He goes on to point out that "since there is no requirement to register a work ..., the legal owner of a work can be difficult to find, particularly when the work is more than a few decades old," and summarizes the current proposed legislation to address the issue:

"Under [the proposed legislation], if you conducted a 'diligent search' to locate a rights holder and still failed to find the owner, you would be off the hook. You could then incorporate the work in question into your own work, as long as you provided proper attribution. If the legitimate rights holder was subsequently found, he or she could not require that your work be withdrawn from circulation, but could collect 'reasonable compensation' for use."

He notes that the proposal is "still on the back burner in Congress," but says it is "certainly a step in the right direction" and "hope[s] that it soon gets the attention it deserves." He also mentions an alternative proposal being pushed by Stanford lawprof Larry Lessig, "a system where authors receive an automatic copyright when they create new works, but they must register their copyright within 14 years to retain it past the initial period."

Uphill Climb

Lee Rosenbaum reports that the Montgomery County Commissioners have hired a lawyer, Mark Schwartz of Bryn Mawr, to try a last ditch effort to stop the Barnes from moving to Philadelphia. (This is the result of the "SOS" resolution I mentioned here.) As Lee says, Schwartz "faces a formidable challenge: A court case has already been decided, allowing the move, and Philadelphia's movers and shakers are solidly behind it."

To sell or not to sell?

The Chicago Tribune takes a tour through all the recent deaccessioning battles, including of course Thomas Jefferson University's Eakins sale and the Albright-Knox's ongoing series of auction sales. It also sheds a bit of light on the Fisk University-O'Keeffe dispute. I've wondered in the past just what the Tennessee AG is seeking to accomplish there: "Is it that the works not be sold at all, which would presumably make the 'radical conservatives' happy? Or is it that they be sold for a price higher than the one Fisk originally agreed to (on the basis of an appraisal that was two years old at the time), which would presumably make Yale's Jock Reynolds happy but might also result in the O'Keeffe painting not going to the publicly accessible O'Keeffe museum but rather to some private collection somewhere?" Well, the answer now seems to be the former: "My goal is, hopefully, to keep this collection intact. This is a collection that I think any university, any city, would be proud to have as part of its cultural offering." That, of course, is precisely the position the O'Keeffe Museum was taking in the lawsuit -- at least until it agreed to the settlement by which it would acquire the O'Keeffe painting Fisk wanted to sell, at a bargain basement price, in exchange for dropping its objection to the university putting another painting from the collection, "Painting No. 3" by Marsden Hartley, on the open market. Now, the AG initially approved that settlement, so the question I still have is what happened afterward that convinced him the collection should be kept intact, even if it means Fisk is stuck with the kind of financial troubles that led it to want to sell the two works in the first place? Was the collection not worth keeping intact if the price the museum was paying for it under the settlement was near its current fair market value? Did the fact that the museum was getting a very healthy discount somehow awaken the AG to the notion that any university would be proud to have the Stieglitz collection as part of its cultural offering?

And here's a related story about another way Fisk might be able to solve its financial woes:

"Financially troubled Fisk University, plagued for years by weak and inconsistent fund raising, has recruited a seasoned institutional specialist to help reverse its fortunes and help it try to catch up in the all important fund-raising game. Dr. Sulayman Clark, who quietly joined the Fisk staff in early April as vice president for institutional development, got his start in fund raising in the mid-1980s as a special assistant to the president of Hampton University. He has since helped other schools craft ambitious ideas and raise millions of dollars for their endowments as a member of the executive teams at Morehouse College, Tuskegee University and, most recently, North Carolina Central University."

For Sale

The New York Post reports that Brant Publications -- which includes Interview magazine, The Magazine Antiques, and Art in America -- is up for sale. According to the Post, the company "recently retained Allen & Co. to 'explore strategic alternatives,' sources say, which is the publishing industry's lingo that investment bankers use when they put a media property up for sale to the highest bidder."

Lee Rosenbaum, who's a contributing editor at Art in America, has some inside scoop.

"The list included one item that Mr. Thompson described as a final straw"

Here's Mass MoCA's Joe Thompson in The New York Times earlier this week:

"Mr. Büchel has not worked on the show since early last December, when he returned to Europe to attend to other projects and left behind a list of additional objects that he wanted the museum to find. The list included one item that Mr. Thompson described as a final straw: the fuselage from a large jetliner, like a 767, that Mr. Büchel wanted to be burned and bomb-damaged and then hung from the ceiling. 'That's when I began to put on the brakes on the project,' Mr. Thompson said in a recent interview at the museum ….'"

This has become part of the standard narrative of the dispute. See, e.g., Time's Richard Lacayo ("Joseph Thompson, the MASS MoCA director, says he finally called it quits when Buchel went back to Europe last December and left behind a list of new elements he needed for the installation, including the fuselage of a large jet liner ....").

But here's Joe Thompson in September 2006, in an email to Christoph:

From: Joe Thompson
Date: 16. September 2006 00:13:53 GMT+01:00
Subject: Big thoughts, key information

CB –

(...)

Only big things we haven’t really nailed down yet are the house, and the big airplane fuselage. Nato is hauling a ton of useful junk in every day, and Richard has found great bar stools, and related materials. Going pretty well on that front, and we’re just getting started.

(...)

I’m terrified about the costs, by the way. So far, we have zero in sponsorships, nada,…if you have any ideas for that, let me know, as I really have to get to work on that right away.

Joe

"Final straw," huh?

Sotheby's Victory

Josh Baer: "Sotheby’s won a summary judgment in New York against Isabel Goldsmith (daughter of James Goldsmith and granddaughter of Antenor Patino) in a suit about works removed in the 1990’s from storage in London. The court ruled the British statute of limitations had expired for her over a work sold in NYC in 2001."

You can get the whole story here, from the UK's Daily Mail, which reports that Goldsmith is appealing the decision.

Picasso Lawsuit

The Atlanta Journal-Constitution had an article this week on a local dealer who is facing a $5 million lawsuit (and, apparently, some attention from the FBI) over a Picasso drawing the authenticity of which was rejected by the artist's daughter. It's a long story that all goes to "demonstrate how easy it is to be duped in the art world when contact is not face to face and how readily a dealer in need of money will pursue a proposition." The dealer says he's working on a memoir "about the high end of the art world, where people make statements and they have nothing to base them on."

The Next Front in the Deaccession Wars?

Carol Vogel's New York Times column today discusses the case of Virginia's Randolph-Macon Woman's College, which, "short on funds and fearful of losing its accreditation," is considering selling part of its "world-class collection of American art," valued at more than $100 million. Alice Walton makes the obligatory appearance. Lee Rosenbaum (who was on this story a couple of weeks ago) calls for the Virgina Attorney General to get involved.

In unrelated deaccessioning news, Wendy Moonan's antiques column in today's Times includes the following:

"The star lot of Sotheby’s June 7 antiquities sale is an ancient bronze figure of the goddess Artemis. The auction house’s antiquities specialist, Richard M. Keresey, calls it 'the best single piece I’ve seen here in 37 years.' The 36-inch-tall sculpture, which the Albright-Knox Art Gallery in Buffalo is de-accessioning, is ... estimated to sell for $5 million to $7 million, more than double the highest previous estimate for an antiquity at Sotheby’s ...."

Mass MoCA's Lawsuit

The following is from a letter I sent today to Mass MoCA's lawyers regarding the lawsuit they have filed against my client Christoph Büchel. There are a bunch of factual inaccuracies floating around out there, which we will address, but, for now, the essential point to understand is that the Visual Artists Rights Act is there to prevent the exhibition of works of art that have been distorted or modified -- and the museum is doing exactly that six ways to Sunday here. No amount of "tarp" can cover that up.

Here's the text of the letter:

With respect to the proposed exhibition Made at MASS MoCA, your client should be aware that:

1. It is not possible to "shield" the work "from view" in the way that has been proposed. As Mr. Thompson well knows, the work is not merely a visual but also a physical experience; the design of the space itself, and the ways that the visitor is moved through it, are as much a part of the meaning of the artwork as the objects within it. To take just one example, to enter the gallery one must pass through the cinema that is an essential part of the work. There is no way to "cover" that up; the visitor experiences the work by moving through it, and being "inside" of it. Accordingly, the museum's plan to allow visitor access to the work while "shielding the huge objects from view" will result in nothing other than the exhibition of a drastically distorted and modified version of the work, in willful violation of VARA as well as the parties' clear understanding. It is also clear, based on the photos that ran in The New York Times and The North Adams Transcript on Tuesday (the latter expressly admitting that "the single-family house taken from Houghton Street in North Adams for artist Christoph Büchel's unfinished exhibit can be seen peeking above a tarped-off aisle"), that the effort to "shield" "the objects" from view is incomplete at best, so that, even if one were to think of the work in purely visual terms, the result of the museum's actions is the display of a highly distorted version of what was intended as an integrated work – a version in which some of the objects that make up the work can be seen by the viewer and others cannot, utterly destroying the work's meaning and integrity. If the museum follows through on this plan, rest assured that we will seek all available remedies, including for all past violations (on which see the May 23 "Exhibitionist" blog post by the Boston Globe's Geoff Edgers wondering "who hasn't" already seen the show).

2. In any event, it is not the case that what the museum is seeking permission to show is "Mr. Büchel's" unfinished work. Instead, numerous elements have been assembled without his involvement or approval, as a kind of guess as to how he would have done so. (So it's more like a painter leaving a canvas less than half finished -- and it is absolutely false, by the way, that the work is 90% completed -- and a museum picking up a brush and filling in the rest and then having the audacity to present the painting as a "work in progress" by the artist.) The lawsuit you have filed is essentially a request for permission to show a distorted, modified work to the public.

3. The act of "covering" objects from the work (again sometimes only partially) is itself an intentional distortion and/or modification, once more in violation of the law as well as the parties' understanding.

4. As the copyright holder, Mr. Büchel denies permission for the use of any installation photographs in the exhibition.

Follow up on the Sotheby's building dispute

Last week I mentioned a dispute between Sotheby's and its landlord. I said it was a little hard to parse what was going on from the press reports. A colleague with knowledge of the dispute comes to the rescue:

"Sothebys has a right of first refusal on any sale by the owner (Aby Rosen). A couple of years ago Rosen sold a large equity stake in the project to a third party. The documents are poorly drafted and are ambiguous as to whether the right of first refusal applies to a sale of less than 100% of the equity interests in the entity that owns the building. That's what the dispute is about."

Watch out for the average-looking ones

The Chicago Tribune reports on an "average-looking couple" -- "the Midwestern type" -- who stole a $60,000 Rembrandt etching from a Chicago gallery on Sunday. The work, called "Adam and Eve," was taken from a "preview room" next to the receptionist's desk. The owner of the gallery says the piece was insured, "but not for its asking price."

Smithsonian Copyright Challenge

The AP reports on an interesting copyright dispute involving the Smithsonian Institution. The nonprofit Public.Resource.Org thinks the copyright language on the Smithsonian Images web site (e.g., "even in the absence of copyright, Smithsonian still reserves all rights to image use") is too restrictive and, in response, has apparently downloaded all 6,288 images from the site and posted them for all to use for free on flickr.com.

Lawprof Deven Desai says "the issue is whether the holder of the physical thing (here a picture) can impose extra limits on the use of that thing." He says "the question becomes complicated rather fast," but suggests that "there may be a distinction between a public entity (which ... the Smithsonian is) and a private entity’s ability to use contract in this way."

Cornell's Peter Hirtle wishes the Smithsonian didn't try to assert control over its images, but says "everything I have read suggests that what the Smithsonian tried to do is legal."

NPR on Stylometry

Stylometrician George Johnson was a guest on NPR's Talk of the Nation Friday. You can listen here. I mentioned Johnson's project last week here.

Perpetual Copyright? (UPDATED)

Novelist Mark Helprin has an editorial in today's New York Times arguing for infinite copyright. Glenn Reynolds thinks it would be unconstitutional (see here and, for a more in depth treatment of the subject, here). Cory Doctorow thinks the editorial is "silly." And Larry Lessig has set up a wiki page for a collective rebuttal.

UPDATE: Ilya Somin has a detailed post at the Volokh Conspiracy arguing that Helprin's proposal is "deeply flawed." Matthew Yglesias says "unfortunately, [Helprin] doesn't consider any of the various reasons that make this a terrible idea. Is it, for example, really such a bad thing that community theaters and schools all throughout the country (and, indeed, the world) can put on productions of Shakespeare's plays without paying stiff licensing fees?" Justin Levine (also thinking specifically of Shakespeare) says "Helprin's idea is not merely wrong - it would be utterly destructive to any semblance of artistic culture."

I'll let you know if I find anyone who likes the idea.

Liz

Giving me the opportunity to post about Marilyn Monroe and Elizabeth Taylor in the same week, this is from yesterday's New York Times:

"An American court ruled on Friday that Elizabeth Taylor can keep her van Gogh, Reuters reported. Ms. Taylor, 75, bought the 1889 painting 'View of the Asylum and Chapel at Saint-Rémy' at a London auction in 1963 for [about $257,000]. South African and Canadian descendants of Margarete Mauthner, a Jewish woman who fled Germany in 1939, sued her in 2004, saying the work had been confiscated by the Nazis and should be returned to them under the Holocaust Victims Redress Act. A three-judge panel of the Ninth Circuit Court of Appeals backed a lower court, ruling that the family had waited too long in claiming the painting ..."

More from the San Francisco Chronicle here. The Ninth Circuit ruling is here. Shaun Martin at the University of San Diego School of Law says the decision "seems pretty right."

Beautiful Fakes

In todays' New York Times, Grace Glueck reviews a show at the Bruce Museum in Greenwich called "Fakes and Forgeries: The Art of Deception," which is "devoted by and large to intentional art faking or forgery, applied to paintings, sculptures, prints, drawings and photographs, and the many means of doing it." Glueck writes:

"The show raises the question of what exactly a fake or forgery is, and how do you tell one from, say, an artist’s honest attempt to copy the work of another? Not simple questions, as Nancy Hall-Duncan, senior curator at the Bruce who assembled the show, makes clear in her catalog essay. As a basic definition she holds a forgery to be 'a work that, by mimicking the style of an artist or replicating his signature, represents itself as being produced by that artist,' constituting 'a deliberate attempt to deceive.'"

The show includes “pre-Columbian” knockoffs produced by Brígido Lara, who, when he was arrested in 1974 on grounds of trafficking in stolen artifacts, requested some clay and produced copies of the supposed "artifacts," earning his release. He ended up being hired by an anthropology museum as a restorer: "Now authorized to make legitimate replicas, he signs them but continues to assert that his creations, both signed and unsigned, are not forgeries." It also includes "probably the 20th century’s most famous forger," Han van Meegeren, whose “Christ and His Disciples at Emmaus,” painted to look like a Vermeer, was bought in 1937 by the Dutch Rembrandt Society for about $4.7 million in today’s dollars and donated to the Museum Boijmans Van Beuningen in Rotterdam. In 1945, at the end of World War II, he was arrested on charges of collaboration with the enemy and, in the process, confessed to forging 14 Dutch masterpieces, including “Christ and His Disciples,” and was sentenced to a year in prison (but died six weeks after sentencing).

Maureen Mullarkey reviewed the show earlier this week for The New York Sun.

Albright-Knox "Auction Coups"

"Radical conservative" anti-deaccessionist Lee Rosenbaum notes that the Albright-Knox "scored unexpectedly large windfalls for its deaccessioned masterpieces at yesterday's African, Oceanic and Pre-Columbian art sale at Sotheby's: Its bronze Benin Head of an Oba fetched $4.74 million against an estimate of $1-1.5 million and its Aztec Stone Figure of the Goddess with Tasseled Headdress, Known as Chalchiuhtlicue, sold for $1.22 million, compared to an estimate of merely $100,000-150,000." All told, the museum earned nearly $6 million in this, the third of six auctions of items from its permanent collection. The Buffalo News says that brings the total up to $26 million, a figure that is "expected to increase dramatically by the final auction June 7, when the gallery auctions a number of antiquities, most notably the highly valued bronze 'Artemis and the Stag.'" They are auctioning off another 10 items of American Indian art today, expected to bring a total of less than $100,000.

"A Bombshell Decision"

That's how Anthony Falzone, Executive Director of Stanford's Fair Use Project, describes the Marilyn Monroe opinion discussed earlier here and here:

"Is this a big deal? You bet. Licensing dead celebrities is a multi-million dollar business. But California ... only passed the statute creating post-mortem publicity rights in 1984. Lots of the hottest dead celebrities (licensing-wise) died long before that, and millions of licensing revenue stands to disappear under this decision. The beneficiaries of this windfall will not let that money go without a fight. So I expect to hear a lot more about this issue."