"I have a lot more faith in donors than in the AAMD and its selectively, inconsistently enforced policies that generally apply the myopic rule of one-size-fits-all."

I'm making former Crystal Bridges curator Chris Crosman an honorary member of my Museum Directors Hall of Fame.  At Lee Rosenbaum's blog, he argues that "Fisk needs to be unshackled from patronizing, museum establishment-imposed bonds that do not address Fisk's unique circumstances and rich history."  "Fisk's future," he says, "must be its own to determine."

He joins Hugh Davies, who called "B.S." on the "held in trust" argument; Richard Armstrong, who called for an "infusion of pragmatism" (another way of saying enough with the myopic rule of one-size-fits-all); Christine Miles; David Gordon; and of course Gresham Riley, after whom the Riley Wing of the Hall of Fame is named, who persuasively argued that the AAMD policy is "an exercise in smoke and mirrors."

One striking thing about the Hall of Fame members is that no one on the other side ever actually engages with their arguments.  Instead, from time to time the Deaccession Police gather their pitchforks and do their little "held in trust" dance and pretend that no one has noticed that their prissy fatwa makes absolutely no sense.

Two Simple Words in the English Language

The Wall Street Journal:  The Lawyer Who Forgot He Was a Thief.

Call it the Steve Martin Defense.

Abandoned Ship

I also see that the defendant prevailed in the Burning Man/La Contessa trial.  The jury found that the plaintiff abandoned the work, so the defendant could not be liable for "conversion."  The plaintiff says he will appeal to the Ninth Circuit on his previously-dismissed VARA claim, which is the more interesting issue anway.

Tell me again about the public trust (secret Picasso edition)

Also while I was away, I see American museums continue to do a bang-up job of making sure important works from their collections will be accessible to present and future generations.  The latest example is the Evansville Museum, which recently discovered, after 50 years, that a work that had been given to it was a Picasso ... and promptly decided that the best reaction to this happy discovery was to sell the work.

That must be sub-clause (iii) of rule (a) of section 17 of the Held In The Public Trust Rules (copies available upon request from the AAMD).  That sub-clause states that if a museum discovers that a work is more valuable than it had previously believed, then that work is no longer Held In The Public Trust to be accessible to present and future generations.  Makes perfect sense, if you think about it.

It's also interesting that this may be a real-life example of a Schrodinger's Deaccessioning.  The museum says it "will make no immediate decisions about utilizing funds from a successful sale."  That may be why the Deaccession Police haven't pounced (it may also be that it's August).  They don't know yet whether to be repulsed or not.  If the museum decided to use the proceeds for anything other than buying more art, there will be hell to pay.  But if they decide to buy more art, well, that's a perfectly normal act, to be encouraged.  It's all right there, in the rulebook.

"This type of inquisitive approach falls short of the 'hatchet job' that Biro's counsel described at oral argument."

While I was away, the district court dismissed "most of" Peter Paul Biro's defamation claims against The New Yorker at the pleading stage.  The opinion is here.  The court noted that in the Second Circuit you can't bring a defamation suit based on the "overall impact" of an article, and threw in some helpful literary criticism as well:  "At the end of the [New Yorker] article, the reader is left genuinely uncertain what to believe. ... If anything, the Article seeks to draw a parallel between the idea that one can never be wholly certain whether a piece of art is truly 'authentic' ... with the idea that it is difficult to fully know the truth about who a person is."  Precisely.

Break in the Action

I'm away again this week, so, unless something really important happens, things'll be quiet around here until next week.

"What is art? Hard to say, but whatever it is it seems to go up satisfyingly in price."

SWAG.

"The levy is expected to raise $23 million a year."

The new property tax to benefit the Detroit Insitute passed in all three counties yesterday.  Story here.

"How can anyone outside of a comic opera expect the authenticity of an old painting to be settled by a lawsuit?"

Patricia Cohen has an interesting article in yesterday's Times on "the divide between the court and the market" when it comes to assessing authenticity claims.

One of the themes that runs through the piece is that what a court says is "meaningless," because whether or not a work will be accepted as authentic is "a function of the marketplace."   That's no doubt true, but that doesn't mean the legal outcome is meaningless.  If a plaintiff prevails against an expert for claiming a work is inauthentic, or a foundation for refusing to authenticate a work, then, although the market is still free to (and likely will) ignore the court's decision, the consequences to the parties to the lawsuit are enormous.  A court can't compel the market to accept that your Picasso is real; but it can award you the millions of dollars you would be entitled to if it could.  That means something.

"The harm would come from the fact that no accredited museum would lend art to the DIA."

I mentioned Judith Dobrzynski's Wall Street Journal article last week about the DIA millage proposal.  She has a follow-up post at her blog.  Check out the comments as well, from which the above quote is taken.

Fisk Fight Finally Finished

The collection-sharing arrangement between Fisk University and the Crystal Bridges Museum has been finally approved.

I assume everyone is happy about this because, besides sharing the financial burden, having a second venue is fair to the art and to the artists, who get more visibility.  Right?

"The Barnes definitely has the goods."

"And for the first time, you can really see them."

Burning Down the Bus

Sergio Muñoz Sarmiento notes that a trial is under way over the destruction of a Burning Man art project.  As he points out, the Court already dismissed the artists' VARA claims on the ground that the work at issue was "applied art" (and thus excluded from VARA-protection) "because it was used and intended to be used as a mobile stage for performances."  They still have a common law conversion claim for the destruction of their property, though the Court noted on summary judgment that it's not so clear they owned it:  "the only documentation supporting [the artists'] claim of ownership is the receipt showing Cheffins' purchase of the bus in 2002"; there is "no proof of registration of insurance"; and their limited contact with the work "in the year before its destruction suggests possible abandonment."

"If the tax fails, Mr. Beal says he'd have to cut the museum's budget immediately: laying off 70 people; closing on weekdays except perhaps Fridays; shuttering half the galleries; stopping many educational programs; and curtailing some temporary exhibitions."

Judith Dobrzynski has a piece in the Wall Street Journal on the Detroit Institute of Arts' property tax proposal.

"Officials hope that the vast storage facility, which is expected to be tax exempt, will encourage collectors and corporations to stockpile their art in Beijing."

Beijing's getting a freeport.

Such a tragedy

The Barnes has had more visitors in its first two months in Philadelphia than it did in all of 2009 in Merion.

The Usual Suspects will do their usual carping (it's a simulacram of a McRestaurant where the vastly improved lighting serves only to distract you from your complicity in the greatest cultural crime of the century) but it's hard to see this as anything other than a victory.

Confidence Game

I mentioned this in passing the other day in discussing the Detroit situation, but I thought I'd flesh it out a little bit here.

One of the two main arguments of the anti-deaccessioning zealots is that, if museums are allowed to sell work to pay operating expenses (or, for that matter, to avoid a severe reduction of museum services and programs), "donor confidence will be shaken" -- donors will say, "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"  The other primary argument they make is the ridiculous "held in trust" argument -- ridiculous because museums sell work like it's going out of style.

The donor-confidence argument never made much sense to me either -- for one thing, no one ever explains why the endless number of sales where the proceeds are used to buy more art don't shake donor confidence -- but leave that to the side for a moment.

Museums can acquire work in two ways. It can be donated. Or they can buy it.

What if a museum simply announced:  We will never sell a work that was donated to us.  So all you donors and potential donors out there can feel completely confident that we will never sell a work if you donate it to us.  (More confident, in fact, than under the current regime where, remember, museums can sell donated work so long as they use, or at least earmark, the sales proceeds for future acquisitions.)  This museum will have the most confident, motivated set of donors on the planet.

But ... in return, this museum announces that it will consider itself free to sell other, non-donated work, and use the sales proceeds for anything it wants, including avoiding the elimination of school tours, public programs and community outreach.

The question is:  would that be repulsive?

If so, why?

"What is the fair market value of an object that cannot be sold?"

Been meaning to mention Patricia Cohen's front-page story on the IRS's attempt to collect $29 million in estate taxes on a Rauschenberg "combine" that, because it includes a stuffed bald eagle, cannot legally be sold.  (I mentioned this a couple months ago here.)

Felix Salmon thinks the IRS's mistake here is thinking that "[i]f a work has great artistic value, ... it must have great financial value as well."  Interestingly, the fourth comment to Salmon's post is under the name "josephbothwell."  Joseph Bothwell is the former director of the IRS’s Art Appraisal Services unit.  I don't know if the commenter is the real Bothwell, but he says "the idea that great art has zero monetary value is just silly," concedes that "there are interesting issues in this case," and "invites all to read Robson v. Commissioner, Tax Court Memo 1997-176," which he says "makes it clear that a market has to exist, not necessarily that one has to have legal access to that market."  But in that case (which involved the sale of "mounted animal specimens," which was illegal in the taxpayers' home state of California) the Tax Court specifically found that, despite California law, "there is a market throughout the United States for items comparable to those donated by the [taxpayers]."  There was testimony in the case that "prices for game mounts in California are equivalent to prices in States that do not place restrictions on sales.  Thus, the restrictions imposed by California law do not materially affect the value of [taxpayers'] game mounts."  The Court concluded that "an active market exists throughout the United States for substantially comparable items."  That's a lot different than positing a hypothetical reclusive Chinese billionaire.  Where is the evidence of a real active market for the work at issue here?

Were the Hall Monitors right about Jeffrey Deitch?

Ed Winkleman doesn't seem to think so.

Balancing Priorities in Detroit

An interesting pair of stories out of Detroit this week.

First, an article in the New York Times about the city's massive financial problems, including long-term debt of $12 billion and deficit spending of $150 million a year.  The latest news is that the city is "cutting the pay and toughening work rules for many of its unionized workers," with the goal of saving about $100 million a year.

Against that backdrop, the Detroit Institute of Arts is pushing for a special new property tax to benefit the museum. The museum has a FAQ page about the campaign.  We're told that, without the tax, "there would be a severe reduction of museum services and programs."  Possible scenarios "include opening selected galleries only on weekends, elimination of school tours, public programs and community outreach."

That doesn't sound very good.  So, if the tax fails, perhaps, given how dire the situation is, they would consider possibly selling a work or two to avoid that severe reduction of services and programs?  Nope.  But look at the explanation they give for why they won't consider that.  First, they mention (question 22) that the art is owned by the City (not by the museum).  But, in the immediately adjacent question, they just assert, like it's a law of nature, that the collection "is held in trust for the benefit of the public and works of art may not be sold except to purchase other art to be added to the DIA’s collection."  You see?  They just can't.  It would violate the Held In Trust Law.  Works of art "may not be sold" -- it's prohibited! -- except to purchase other art.  Sorry.  Their hands really are tied.  It's unfortunate, but those are the rules.

They go on to tick off the usual empty talking points: "such a sale would violate the intentions of donors" (would it, if the works sold were purchased by the museum rather than donated?) ... "donor confidence would be shaken" (again: what if the works sold were purchased rather than donated?) ... "and public outcry would be tremendous" (more tremendous than if there were a severe reduction of museum services and programs including the elimination of school tours, public programs and community outreach?).

Finally, they make the blackmail argument: "Selling art also would isolate the DIA from the national and international museum community. Other institutions that have considered selling art have seen public demonstrations and a withdrawal of financial support."  In other words:  we can't sell work because the other museums will isolate us if we do.  So the museums all agree to punish each other if anyone tries to sell ... and then they use the threat of that punishment as an argument against the sale in the first place.

If I were a voter in Michigan considering this proposed tax, I wouldn't think I've been given any reason to believe that the City "can't" sell art to avoid severe reductions in museum services and programs, if it wanted to.