Tuesday, April 16, 2019
Saturday, April 06, 2019
Latest street art lawsuit
This time it's Mercedes-Benz suing four artists who they claim "have threatened to sue for copyright infringement." They're seeking a declaratory judgment of non-infringement:
"The legal action revolves around photos posted on Mercedes-Benz’s Instagram profile in January 2018 (that have since been deleted) promoting the automaker’s luxury sports utility vehicle, the Mercedes G 500. The images were shot in Detroit’s Eastern Market, which has become widely known for its Murals in the Market initiative, and where the defendants all had murals. In its lawsuit, Mercedes-Benz ... claimed that its images 'fundamentally transformed the visual aesthetic and meaning' of the murals."
Sergio Muñoz Sarmiento is "curious if Mercedes Benz will take this all the way or bow out in settlement. We’ve said before that this legal issue is ripe for courts to answer, so why not now?"
"The legal action revolves around photos posted on Mercedes-Benz’s Instagram profile in January 2018 (that have since been deleted) promoting the automaker’s luxury sports utility vehicle, the Mercedes G 500. The images were shot in Detroit’s Eastern Market, which has become widely known for its Murals in the Market initiative, and where the defendants all had murals. In its lawsuit, Mercedes-Benz ... claimed that its images 'fundamentally transformed the visual aesthetic and meaning' of the murals."
Sergio Muñoz Sarmiento is "curious if Mercedes Benz will take this all the way or bow out in settlement. We’ve said before that this legal issue is ripe for courts to answer, so why not now?"
Wednesday, April 03, 2019
Saturday, March 30, 2019
Saturday, March 23, 2019
Tell me again about the public trust (twenty-two Chinese jade artworks that have been part of the Art Institute of Chicago’s collection since 1900 edition)
But don't worry, the decision was "not made lightly." Well that's a relief.
"Met Admission Fees Will Send $2.8 Million to Over 175 City Cultural Groups"
Remember all the tears -- from the usual suspects -- when the Met announced last year that it would take the radical step of starting to do what virtually every other museum does (charge for admission).
Well, here's some follow-up news about that:
"The Department of Cultural Affairs said that $1.4 million of the admissions money from the Met was earmarked for over 160 cultural development fund recipients that are in or serving what the city has identified as 'high-need neighborhoods.' Those include Harlem Stage in Manhattan; Louis Armstrong House Museum in Queens; and St. George Theater in Staten Island.
"The other half of the Met revenue will go to institutions in city-owned property that are in what the Department of Cultural Affairs has said are 'underserved communities.'
"Those funding increases, ranging from $25,000 to $175,000, will go to 16 organizations, including El Museo, the Studio Museum, the Bronx Museum of the Arts, the Jamaica Center for Arts and Learning, and children’s museums in Brooklyn and Staten Island."
Well, here's some follow-up news about that:
"The Department of Cultural Affairs said that $1.4 million of the admissions money from the Met was earmarked for over 160 cultural development fund recipients that are in or serving what the city has identified as 'high-need neighborhoods.' Those include Harlem Stage in Manhattan; Louis Armstrong House Museum in Queens; and St. George Theater in Staten Island.
"The other half of the Met revenue will go to institutions in city-owned property that are in what the Department of Cultural Affairs has said are 'underserved communities.'
"Those funding increases, ranging from $25,000 to $175,000, will go to 16 organizations, including El Museo, the Studio Museum, the Bronx Museum of the Arts, the Jamaica Center for Arts and Learning, and children’s museums in Brooklyn and Staten Island."
Monday, March 18, 2019
"This is unusually broad because they claim they control not only what you take while you’re there but anything about it afterward." (UPDATED)
Apparently if you get a timed ticket to Thomas Heatherwick's new "Vessel" at Hudson Yards, they make you sign a photo release.
Cornell Tech's James Grimmelmann isn't having it:
"What a bad idea — and also a badly drafted clause. … It's even broader than photographs taken inside the Vessel. It also covers photographs 'depicting or relating to the Vessel' even if not taken from inside. So if you 'agree' to the license, it even applies to your later photographs of the Vessel taken from across the river. It also applies to 'audio recordings'(!) again regardless of where they were recorded. So if you go into the Vessel and then make a podcast about your visit, they claim a right in that too. On the other hand, they do stop short of claiming full ownership of your photos, audio, and video. They take only a license to use your media, plus a personal promise that you won't make commercial uses. So noncommercial postings are okay, it appears. But because they only take a personal promise not to make commercial uses, they have no recourse if *someone else* makes a commercial use of your media. So: Go to the Vessel. Take a photo or a video. Put it online with a Creative Commons Attribution license. You're not making a commercial use, and anyone else who does never agreed to the Vessel's terms. It's always amusing to see a clause this overreaching and also this badly drafted, like watching the mustache-twirling villain slip on the banana peel he dropped and fall face-first into a giant cake."
UPDATE: The New York Times picks up the story: Following Outcry, Hudson Yards Tweaks Policy Over Use of Vessel Pictures. It's a good example of how, in the age of social media, this kind of copyright overreach is no longer tenable. The backlash can be brutal.
Cornell Tech's James Grimmelmann isn't having it:
"What a bad idea — and also a badly drafted clause. … It's even broader than photographs taken inside the Vessel. It also covers photographs 'depicting or relating to the Vessel' even if not taken from inside. So if you 'agree' to the license, it even applies to your later photographs of the Vessel taken from across the river. It also applies to 'audio recordings'(!) again regardless of where they were recorded. So if you go into the Vessel and then make a podcast about your visit, they claim a right in that too. On the other hand, they do stop short of claiming full ownership of your photos, audio, and video. They take only a license to use your media, plus a personal promise that you won't make commercial uses. So noncommercial postings are okay, it appears. But because they only take a personal promise not to make commercial uses, they have no recourse if *someone else* makes a commercial use of your media. So: Go to the Vessel. Take a photo or a video. Put it online with a Creative Commons Attribution license. You're not making a commercial use, and anyone else who does never agreed to the Vessel's terms. It's always amusing to see a clause this overreaching and also this badly drafted, like watching the mustache-twirling villain slip on the banana peel he dropped and fall face-first into a giant cake."
UPDATE: The New York Times picks up the story: Following Outcry, Hudson Yards Tweaks Policy Over Use of Vessel Pictures. It's a good example of how, in the age of social media, this kind of copyright overreach is no longer tenable. The backlash can be brutal.
Tuesday, March 12, 2019
"It doesn’t benefit anyone when there are thousands, if not millions, of works of art that are languishing in storage."
So says Glenn Lowry in this piece by Robin Pogrebin, not realizing that, when it comes to the public trust, "does this benefit anyone?" is not a relevant question. What matters is ethics: being really, extremely, very ethical. And non-repulsive.
Lowry was already in my Deaccessioning Hall of Fame.
He's joined now by Gary Tinterow:
"'If an institution is faced with an existential threat, isn’t it better for the institution to survive with some works of art than no works of art?' countered Gary Tinterow, director of the Museum of Fine Arts, Houston, defending the Shelburne Museum in Vermont’s decision to sell $25 million worth of art in 1996."
(Deaccession Police answer: no, because that would be unethical.)
Anne Pasternak adds that "there is increasing discussion these days about revisiting the strictures of deaccessioning policies. But she acknowledged 'there is a lot of fear around this conversation.'"
And Charles Venable asks:
"What is the balance between almost obsessively art collecting and spending vast amounts of resources on it? Are we really just addicts collecting objects that our curators bring in generation after generation?"
Or, as I said just a couple days ago, even assuming there is such a thing as the public trust (and there's not) "the point of the trust should not be just to keep accumulating [works of art] but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection."
A frightening thought, I know. You can see why there's a lot of fear around the conversation.
Lowry was already in my Deaccessioning Hall of Fame.
He's joined now by Gary Tinterow:
"'If an institution is faced with an existential threat, isn’t it better for the institution to survive with some works of art than no works of art?' countered Gary Tinterow, director of the Museum of Fine Arts, Houston, defending the Shelburne Museum in Vermont’s decision to sell $25 million worth of art in 1996."
(Deaccession Police answer: no, because that would be unethical.)
Anne Pasternak adds that "there is increasing discussion these days about revisiting the strictures of deaccessioning policies. But she acknowledged 'there is a lot of fear around this conversation.'"
And Charles Venable asks:
"What is the balance between almost obsessively art collecting and spending vast amounts of resources on it? Are we really just addicts collecting objects that our curators bring in generation after generation?"
Or, as I said just a couple days ago, even assuming there is such a thing as the public trust (and there's not) "the point of the trust should not be just to keep accumulating [works of art] but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection."
A frightening thought, I know. You can see why there's a lot of fear around the conversation.
Sunday, March 10, 2019
"Supreme Court Holds that Copyright Owners Must Wait for Registration to Sue"
Resolving a circuit split (some had held that just applying for registration was enough). News story here. Opinion here. Good summary of what it means here.
Saturday, March 09, 2019
"With sale of Rothko, is SFMOMA creating a heritage, or dismantling one?"
I'm a little late to it, but San Francisco Chronicle art critic Charles Desmarais has a piece on SFMOMA's decision to sell a major Rothko and use the proceeds to diversify its collection. He discusses a number of reactions to the news, including mine:
"Donn Zaretsky, publisher of the Art Law Blog, is a ceaseless opponent of the strict guidelines museum associations place on the use of deaccession funds (they can only be used to buy works of art that are meant to enhance the collection, and not be sold off to raise money for general operating support or capital needs). He titled a post, 'Tell me again about the public trust (1960 Rothko edition).' It was a reference to the argument, correct in my view, that museums have an ethical responsibility to preserve and cultivate collections for the benefit of their communities."
And then he goes on to say:
"Few who demand that museum collections be respected as a public trust would say that every object has equal status, and an equally permanent claim. Rather, it is the collection as a whole that should be preserved for future generations. I, for one, have no problem with pruning the tree to promote greater vigor of the larger organism."
This is interesting, in a couple of ways.
First, this is the first time I've seen someone assert that, when it comes to the public trust, not every object has "equal status" or an "equally permanent claim." The idea seems to be that some works are held more in the public trust than others -- that some are held extremely in the public trust and others are held in the public trust but not so much. But if this is true, how do we know which works are in which category? Is there a database somewhere that includes their level of public trust-ness along with their provenance and exhibition histories? "This work is a 7 on the Public Trust Scale and that one is a 4"?
The other idea here, and this one I have heard others express from time to time, is that it's not the individual works in a museum's collection that are held in the public trust but, rather, the collection as a whole. The analogy, I take it, is to an investment portfolio. If I am the trustee of your trust, it doesn't matter if I sell off this Google stock or those shares in Apple so long as the portfolio as a whole is not dissipated. The same is true here, the argument goes: it doesn't matter if you sell the Rothko "stock" as long as you replace it with other artist stocks.
It's an interesting move, and probably the only way to salvage anything of the "public trust" argument, but ultimately I think it's not persuasive. First of all, Google and Apple shares in a trust can be sold and the proceeds used for things other than buying different stocks -- they can be used to pay trustee commissions and accounting fees and legal fees (thank God), for example -- and, much more importantly for present purposes, there is a beneficiary of the trust and the point of the trust is to benefit that beneficiary and if that means selling stocks to pay for their education expenses, or housing, or medical expenses, that's perfectly fine, in fact it's the whole point of the trust. In the public trust analogy, the beneficiary is, well, the public and the point of the "trust" should not be just to keep accumulating shares of stock (works of art) but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection.
Look, at the end of the day the notion of the public trust is just a metaphor, meant to express the (absolutely correct) idea that the collection is really important to us and the works that make it up should not be disposed of lightly. But when we have a good reason to -- whether it's to buy more art, or to diversify the collection, or to keep from going out of business, or anything else that counts as a good reason -- that should be fine, it's not a violation of any sort of trust, it's not unethical, it's not Stalin-esque. The public trust (if it existed) should be for the benefit of the public.
"Donn Zaretsky, publisher of the Art Law Blog, is a ceaseless opponent of the strict guidelines museum associations place on the use of deaccession funds (they can only be used to buy works of art that are meant to enhance the collection, and not be sold off to raise money for general operating support or capital needs). He titled a post, 'Tell me again about the public trust (1960 Rothko edition).' It was a reference to the argument, correct in my view, that museums have an ethical responsibility to preserve and cultivate collections for the benefit of their communities."
And then he goes on to say:
"Few who demand that museum collections be respected as a public trust would say that every object has equal status, and an equally permanent claim. Rather, it is the collection as a whole that should be preserved for future generations. I, for one, have no problem with pruning the tree to promote greater vigor of the larger organism."
This is interesting, in a couple of ways.
First, this is the first time I've seen someone assert that, when it comes to the public trust, not every object has "equal status" or an "equally permanent claim." The idea seems to be that some works are held more in the public trust than others -- that some are held extremely in the public trust and others are held in the public trust but not so much. But if this is true, how do we know which works are in which category? Is there a database somewhere that includes their level of public trust-ness along with their provenance and exhibition histories? "This work is a 7 on the Public Trust Scale and that one is a 4"?
The other idea here, and this one I have heard others express from time to time, is that it's not the individual works in a museum's collection that are held in the public trust but, rather, the collection as a whole. The analogy, I take it, is to an investment portfolio. If I am the trustee of your trust, it doesn't matter if I sell off this Google stock or those shares in Apple so long as the portfolio as a whole is not dissipated. The same is true here, the argument goes: it doesn't matter if you sell the Rothko "stock" as long as you replace it with other artist stocks.
It's an interesting move, and probably the only way to salvage anything of the "public trust" argument, but ultimately I think it's not persuasive. First of all, Google and Apple shares in a trust can be sold and the proceeds used for things other than buying different stocks -- they can be used to pay trustee commissions and accounting fees and legal fees (thank God), for example -- and, much more importantly for present purposes, there is a beneficiary of the trust and the point of the trust is to benefit that beneficiary and if that means selling stocks to pay for their education expenses, or housing, or medical expenses, that's perfectly fine, in fact it's the whole point of the trust. In the public trust analogy, the beneficiary is, well, the public and the point of the "trust" should not be just to keep accumulating shares of stock (works of art) but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection.
Look, at the end of the day the notion of the public trust is just a metaphor, meant to express the (absolutely correct) idea that the collection is really important to us and the works that make it up should not be disposed of lightly. But when we have a good reason to -- whether it's to buy more art, or to diversify the collection, or to keep from going out of business, or anything else that counts as a good reason -- that should be fine, it's not a violation of any sort of trust, it's not unethical, it's not Stalin-esque. The public trust (if it existed) should be for the benefit of the public.
Saturday, March 02, 2019
"Such a wide discrepancy in valuation could be a concern for the Internal Revenue Service, should Mr. Benioff wish to claim the donation on his tax return ..."
The Times has a story today about tech billionaire Marc Benioff, who bought a Hawaiian war god sculpture for $7.5 million at auction and then donated it to a museum in Honolulu … but now "some international experts say the piece could be from the 20th century and worth less than $5,000."
I discussed another case involving tax deductions for fakes here, but in this case it's far from established that the piece is inauthentic.
I discussed another case involving tax deductions for fakes here, but in this case it's far from established that the piece is inauthentic.
"Art dealer Philippe Hoerle-Guggenheim, who has earned fawning media coverage for his flashy Chelsea gallery and famous name, is facing a lawsuit over allegedly accepting money for artworks—and then failing to deliver them."
Story here. "The lawsuit also gets personal, questioning Hoerle-Guggenheim’s alleged ties to Solomon R. Guggenheim."
Sunday, February 24, 2019
"The company that commissioned 'Fearless Girl' is suing its creator."
"According to court filings dated February 14th, investment firm State Street Global Advisors (SSGA) is claiming that the sculptor, Kristen Visbal, is 'weakening and adulterating the "Fearless Girl" message' by selling copies of the statue. The firm alleges that the artist has made at least three unauthorized reproductions of the statue so far: one for an Australian law firm, one for the owner of the Grand Hotel in Oslo, and a third that Visbal brought to this year’s Women’s March in Los Angeles."
Felix Salmon: "lolololol."
Nicholas O'Donnell: "For something that was commissioned as PR, this is an odd PR move."
Background: here.
Felix Salmon: "lolololol."
Nicholas O'Donnell: "For something that was commissioned as PR, this is an odd PR move."
Background: here.
Monday, February 18, 2019
The Swizz Beatz Resale Royalty Solution
Mentioned in this NYT Style Magazine profile:
"Dean has proposed sidestepping the law entirely and instead introducing an option for collectors selling a work through an auction house or gallery to simply check a box — yes or no (he’s been referring to it unofficially as 'the Dean Choice') — to indicate whether they’d like to give a percentage of the sale to the artist. He suggests that 3 to 5 percent is a fair commission. …
"'If you’re really a patron,' he continues, 'and really a collector, you’re gonna say yes. And I feel that in the first year we introduce this option, 30 percent are gonna say yes. And then the year after that it will be 60 percent, and then it will just keep going up from there, and then we won’t even need a rule. It will just be the thing to do. People are gonna want to check yes because the artists will know if they don’t — if they didn’t do the right thing.'"
"Dean has proposed sidestepping the law entirely and instead introducing an option for collectors selling a work through an auction house or gallery to simply check a box — yes or no (he’s been referring to it unofficially as 'the Dean Choice') — to indicate whether they’d like to give a percentage of the sale to the artist. He suggests that 3 to 5 percent is a fair commission. …
"'If you’re really a patron,' he continues, 'and really a collector, you’re gonna say yes. And I feel that in the first year we introduce this option, 30 percent are gonna say yes. And then the year after that it will be 60 percent, and then it will just keep going up from there, and then we won’t even need a rule. It will just be the thing to do. People are gonna want to check yes because the artists will know if they don’t — if they didn’t do the right thing.'"
Sunday, February 17, 2019
Tell me again about the public trust (1960 Rothko edition)
SFMoMA is selling a 1960 Rothko painting at Sotheby's in May. It's expected to sell for $35-50 million.
Now, you may think this significant work by this significant artist, having fallen under the aegis of a museum, is held in the public trust, to be accessible to present and future generations. But clearly: not the case.
And you may think potential future donors to the museum, upon hearing this news, might ask themselves "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?" But again: nope.
How hard would it be for people to just admit that all the "public trust" talk is a bunch of bullshit and replace it with a rule that says museums are permitted to sell work if but only if they have a good reason for doing so? (In this case, the good reason proffered is to diversify its holdings, to "address art historical gaps like works by women and people of color.")
Now, you may think this significant work by this significant artist, having fallen under the aegis of a museum, is held in the public trust, to be accessible to present and future generations. But clearly: not the case.
And you may think potential future donors to the museum, upon hearing this news, might ask themselves "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?" But again: nope.
How hard would it be for people to just admit that all the "public trust" talk is a bunch of bullshit and replace it with a rule that says museums are permitted to sell work if but only if they have a good reason for doing so? (In this case, the good reason proffered is to diversify its holdings, to "address art historical gaps like works by women and people of color.")
Thursday, February 14, 2019
Thirty Months for Mary Boone (UPDATED 2X)
Story here. Background here.
UPDATE: Jerry Saltz still thinks she shouldn't have gotten any jail time: "You all know where I stood on this. Make her pay it all back. Sentence her. But not jail time. So for me it seems harsh." And Paddy Johnson still begs to differ.
And here is Nate Freeman on The Rise and Fall of Mary Boone.
UPDATE 2: She's closing her gallery.
UPDATE: Jerry Saltz still thinks she shouldn't have gotten any jail time: "You all know where I stood on this. Make her pay it all back. Sentence her. But not jail time. So for me it seems harsh." And Paddy Johnson still begs to differ.
And here is Nate Freeman on The Rise and Fall of Mary Boone.
UPDATE 2: She's closing her gallery.
Tuesday, January 29, 2019
Tell me again about the public trust (Zao Wou-Ki "masterwork" edition)
The Guggenheim is deaccessioning a 1958 Zao Wou-Ki painting. It's estimated at $7.7-10 million.
Because the sale proceeds will "go toward the museum's art fund," it's not the case that the work is held in the public trust, to be accessible to present and future generations.
Judge and Mrs. Samuel I. Rosenman bought the work and donated it to the Guggenheim in 1964 but, again because the sale proceeds will go towards the museum's art fund, it's not the case that potential future donors will say "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?" Collectors don't say that when sales proceeds go to buy more art. That's a well-established empirical fact.
So, so very ethical.
Because the sale proceeds will "go toward the museum's art fund," it's not the case that the work is held in the public trust, to be accessible to present and future generations.
Judge and Mrs. Samuel I. Rosenman bought the work and donated it to the Guggenheim in 1964 but, again because the sale proceeds will go towards the museum's art fund, it's not the case that potential future donors will say "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?" Collectors don't say that when sales proceeds go to buy more art. That's a well-established empirical fact.
So, so very ethical.
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