Back in 2006, in a post about two works by American artists that were destroyed when they fell off the wall at the Pompidou Center, I noted that "in a nice additional touch, the museum has extended an invitation to the artists to remake the works at the museum’s expense." The LA Times's Suzanne Muchnic now reports that one of the remade works -- Craig Kauffman's "Untitled Wall Relief" -- is complete:
"A year and a half after the artist accepted the challenge [to replicate the original], the work is done. It will go on view Dec. 4 at LACMA. And if curators, conservators and trustees give their approval at committee meetings on Dec. 19 and Jan. 21, the museum will purchase the new sculpture for $60,000. That's about half what a comparable work might bring on the market, but Kauffman said he made the replica with the understanding that it would go to LACMA."
When he started on the project, Kauffman submitted a budget of $41,485 to the Pompidou, "including about $11,000 for airfare and living expenses in L.A." The new work is (cleverly) titled "Untitled Wall Relief (cast by the artist from the irreparably damaged 'Untitled Wall Relief,' 1967), 2008."
The artist who created (and still owned) the other damaged work, Peter Alexander, got an insurance payment of $28,000 "and agreed to have two new versions of his piece made, one for himself and one for the Pompidou, at the French museum's expense. The project is underway at a workshop in New York, he said."
Tuesday, December 02, 2008
Monday, December 01, 2008
"Copia has struggled to find its footing since opening in November 2001"
Copia, "the ambitious food, wine and art museum in Napa, Calif.," has filed for Chapter 11 bankruptcy protection.
"This interest may be routine, but it's rarely good news to get a letter from an attorney general"
The Los Angeles Times editorial board weighs in on the troubles at MOCA.
Members Only
Josh Baer says "it seems that the reporter at Law.com didn't get it quite right about Judge Cahn's ruling as to whether Gerard Basquiat came to Christies; as the Basquiat Authentication Committee or from the estate. Maybe Judge Cahn isn't so clear either."
I think he's right about the law.com article. It says that "Orsi claims that days before the 1990 auction, the committee had seen the painting, told Christie's that it was 'not right' and asked that it be withdrawn from the auction" (emphasis added). As I mentioned in an earlier post, Justice Cahn's opinion -- presumably tracking the plaintiff's complaint, since it was on a motion to dismiss -- says that "two members of the Basquiat Committee" came to Christie's . . . in other words, two people who would later be members of the Committee. In any event, I don't think it makes any difference to Justice Cahn's reasoning in what capacity those people were acting back in 1990.
I think he's right about the law.com article. It says that "Orsi claims that days before the 1990 auction, the committee had seen the painting, told Christie's that it was 'not right' and asked that it be withdrawn from the auction" (emphasis added). As I mentioned in an earlier post, Justice Cahn's opinion -- presumably tracking the plaintiff's complaint, since it was on a motion to dismiss -- says that "two members of the Basquiat Committee" came to Christie's . . . in other words, two people who would later be members of the Committee. In any event, I don't think it makes any difference to Justice Cahn's reasoning in what capacity those people were acting back in 1990.
Tuesday, November 25, 2008
Copyright in painting style?
Frank Pasquale on Thomas Kinkade's apparent attempt to establish broad intellectual property rights "over a style and manner of painting and image-crafting": "It's a tricky legal question as to what critical mass of stylistic detail in a Kinkade painting is enough to warrant copyright protection when another is inspired/corrupted by it."
Related thoughts here.
Related thoughts here.
Monday, November 24, 2008
Long Beach Museum Settlement
The Long Beach Museum of Art and their former director have settled their lawsuit. Terms of the settlement were not disclosed. For background, see here.
"It doesn't mean anything other than that they have been made aware that there may have been a diversion of assets"
The LA Times's Mike Boehm reports that the financially troubled LA MOCA has released the following statement:
"MOCA has received a letter from the California Attorney General's office. The California Attorney General has broad jurisdiction and oversight over California non-profits, including MOCA. The letter requested information and documents related to the Museum's finances. MOCA is fully cooperating with the Attorney General."
"MOCA has received a letter from the California Attorney General's office. The California Attorney General has broad jurisdiction and oversight over California non-profits, including MOCA. The letter requested information and documents related to the Museum's finances. MOCA is fully cooperating with the Attorney General."
Dealer Arrest
From the Daily News:
"A New York art gallery owner was nabbed Friday for commissioning dozens of knockoffs of Matisse, Calder and others that he passed off as the real thing. Giuseppe Concepcion was arrested in Florida on charges of trafficking in phony artwork and scheming to dupe clients, Manhattan federal prosecutors say. Concepcion owns the Proarte galleries in New York and Miami. The feds say Concepcion purchased authentic works of art by Henri Matisse, Alexander Calder, Tom Wesselman and then commissioned forgeries he sold to victims, complete with bogus documents verifying their authenticity. In August 2005, Concepcion sold a 1969 oil painting by Calder to a Greenwich, Conn., man who gave Concepcion his 2004 Bentley as partial payment for the $180,000 price tag, FBI Special Agent James Wynne said in legal papers filed yesterday in Manhattan Federal Court."
"A New York art gallery owner was nabbed Friday for commissioning dozens of knockoffs of Matisse, Calder and others that he passed off as the real thing. Giuseppe Concepcion was arrested in Florida on charges of trafficking in phony artwork and scheming to dupe clients, Manhattan federal prosecutors say. Concepcion owns the Proarte galleries in New York and Miami. The feds say Concepcion purchased authentic works of art by Henri Matisse, Alexander Calder, Tom Wesselman and then commissioned forgeries he sold to victims, complete with bogus documents verifying their authenticity. In August 2005, Concepcion sold a 1969 oil painting by Calder to a Greenwich, Conn., man who gave Concepcion his 2004 Bentley as partial payment for the $180,000 price tag, FBI Special Agent James Wynne said in legal papers filed yesterday in Manhattan Federal Court."
Thursday, November 20, 2008
Pre-members
Regarding the recent decision discussed here, Josh Baer wonders how it's possible that the Basquiat Authentication committee could possibly have told Christie's to pull the work from auction in 1990 when the committee wasn't formed until 1994. I haven't seen the complaint, but, in the Judge's decision, the issue is finessed by describing the allegation to be that "two members of the Basquiat Committee had previously viewed the Painting" -- in other words, two people who would eventually become members of the Committee, though, the Committee not yet having been formed, they were not members at the time they viewed it.
Wednesday, November 19, 2008
"The current law must be changed as it is unfair to artists"
In The Art Newspaper, ADAA President Roland Augustine writes in support of The Artist Museum Partnership Act.
The End of the Rebate
A couple of weeks ago, I mentioned that Sotheby's had announced that it was done with guarantees. Now Christie's too says it will "for the most part, give guarantees only in 'exceptional circumstances'" . . . and also announced it will "not be rebating any of the buyer's fees back to the seller."
Felix Salmon has an amusing take on the latter announcement: "I wonder whether [Christie's chief executive] Edward Dolman is one of those people who, long after they've left home, casually drop into a conversation with their parents that they've stopped smoking cigarettes -- having never admitted, in the prior years, that they were smoking cigarettes. ... Until today, I've never seen anybody from Sotheby's or Christie's admit that the seller's commission -- which has always been negotiable -- might ever have been negotiated all the way down past zero and into rebate territory."
He adds that "you can be sure that if and when the market starts heating up again, the auction houses will restart [the rebate practice]."
Felix Salmon has an amusing take on the latter announcement: "I wonder whether [Christie's chief executive] Edward Dolman is one of those people who, long after they've left home, casually drop into a conversation with their parents that they've stopped smoking cigarettes -- having never admitted, in the prior years, that they were smoking cigarettes. ... Until today, I've never seen anybody from Sotheby's or Christie's admit that the seller's commission -- which has always been negotiable -- might ever have been negotiated all the way down past zero and into rebate territory."
He adds that "you can be sure that if and when the market starts heating up again, the auction houses will restart [the rebate practice]."
Monday, November 17, 2008
Fraud on the (art) market?
There was a decision earlier this month in a NY state court case that could have far-reaching implications for the auction houses.
In 1990 Tony Shafrazi Gallery bought a Basquiat painting at Christie's. In 1991, Shafrazi sold the work to collector Guido Orsi. Fifteen years later, in 2006, Orsi was told by the Basquiat Authentication Committee that the work was a fake. Shafrazi and Orsi brought suit against Christie's on a variety of theories, including fraud (they allege that two members of the Basquiat Committee had viewed the painting just before the 1990 auction, "determined that [it] was 'not right' and requested that Christie's withdraw it from the auction").
The court has now dismissed all of the gallery's claims on the ground that it didn't suffer any damage: since it was able to sell the work to Orsi, it has nothing to complain about. It also dismissed all of Orsi's claims on statute of limitations grounds . . . except for the fraud claims. There's no discussion of the statute of limitations as to those claims, but presumably they survived because the fraud wasn't discovered until 2006 (the suit was filed in 2007). But the more interesting fact about the case -- and the reason for the potentially far-reaching implications -- is that Christie's did not sell the work to Orsi. In sustaining the claim, the court seemed to rely on a kind of "fraud on the market" theory:
"Plaintiffs allege that when Shafrazi sold the Painting, he described it as 'Purchased from Christie's Contemporary Art ...' Plaintiffs have submitted affidavits to the effect that art purchasers rely on the expertise of a prestigious auction house such as Christie's, which they term a 'market maker,' and that when Christie's provides a warranty concerning the authenticity or provenance of a painting, the custom and practice of the art industry is that the provenance of the work of art has been firmly and permanently established. Plaintiffs allege that Orsi purchased the Painting, relying on Christie's representations. If, as plaintiffs allege, Christie's fraudulently misrepresented the Painting's provenance, and published that misrepresentation in its catalogue, which Christie's could reasonably anticipate would be relied upon by bidders at its auction, as well as subsequent purchasers, it may be liable to those who relied upon its misrepresentation" (emphasis added).
Now, in this case, it happens that there was only one degree of separation, and about a year's time, between Christie's sale and the sale to Orsi. But by the logic of the court's decision, any subsequent buyer -- no matter how remote in time, and no matter how many intervening transactions have occurred -- could potentially bring a fraud claim against an auction house as "market maker."
The decision is here. The New York Law Journal has a story here.
In 1990 Tony Shafrazi Gallery bought a Basquiat painting at Christie's. In 1991, Shafrazi sold the work to collector Guido Orsi. Fifteen years later, in 2006, Orsi was told by the Basquiat Authentication Committee that the work was a fake. Shafrazi and Orsi brought suit against Christie's on a variety of theories, including fraud (they allege that two members of the Basquiat Committee had viewed the painting just before the 1990 auction, "determined that [it] was 'not right' and requested that Christie's withdraw it from the auction").
The court has now dismissed all of the gallery's claims on the ground that it didn't suffer any damage: since it was able to sell the work to Orsi, it has nothing to complain about. It also dismissed all of Orsi's claims on statute of limitations grounds . . . except for the fraud claims. There's no discussion of the statute of limitations as to those claims, but presumably they survived because the fraud wasn't discovered until 2006 (the suit was filed in 2007). But the more interesting fact about the case -- and the reason for the potentially far-reaching implications -- is that Christie's did not sell the work to Orsi. In sustaining the claim, the court seemed to rely on a kind of "fraud on the market" theory:
"Plaintiffs allege that when Shafrazi sold the Painting, he described it as 'Purchased from Christie's Contemporary Art ...' Plaintiffs have submitted affidavits to the effect that art purchasers rely on the expertise of a prestigious auction house such as Christie's, which they term a 'market maker,' and that when Christie's provides a warranty concerning the authenticity or provenance of a painting, the custom and practice of the art industry is that the provenance of the work of art has been firmly and permanently established. Plaintiffs allege that Orsi purchased the Painting, relying on Christie's representations. If, as plaintiffs allege, Christie's fraudulently misrepresented the Painting's provenance, and published that misrepresentation in its catalogue, which Christie's could reasonably anticipate would be relied upon by bidders at its auction, as well as subsequent purchasers, it may be liable to those who relied upon its misrepresentation" (emphasis added).
Now, in this case, it happens that there was only one degree of separation, and about a year's time, between Christie's sale and the sale to Orsi. But by the logic of the court's decision, any subsequent buyer -- no matter how remote in time, and no matter how many intervening transactions have occurred -- could potentially bring a fraud claim against an auction house as "market maker."
The decision is here. The New York Law Journal has a story here.
"The current laws are not working"
The New York Post reports that the City Council "last week began considering limiting the number of art vendors to two per block" in certain areas.
Monday, November 10, 2008
A Million Distortions is a Statistic
Sergio Muñoz Sarmiento spots another case of "institutional censorship and curatorial alteration," this time in New York: "After complaints to the city Buildings Department, and concern from the Urkainian community in the East Village, Cooper Union removed a giant banner with a reproduction of a Picasso drawing of Joseph Stalin" that had been put up by Norwegian artist Lene Berg. As Sergio points out, the case is reminiscent of a similar incident at UCLA last month.
From a VARA point of view, the issue seems to be whether the banner was one element of a single, larger work of art (in which case its removal would seem to be a distortion or modification of that larger work) or, instead, was one work in a multi-work exhibition (in which case it would probably not be a VARA violation, though it may well still be wrong). It's not quite clear from the news report. The lede says Berg "included the banner as part of her one-woman art installation," but a statement put out by the school notes that "the gallery component of the show — two videos and two book projects — ... will be closed until further notice." The School of Art's website has also been describing it as "an exhibition" (rather than "a work").
From a VARA point of view, the issue seems to be whether the banner was one element of a single, larger work of art (in which case its removal would seem to be a distortion or modification of that larger work) or, instead, was one work in a multi-work exhibition (in which case it would probably not be a VARA violation, though it may well still be wrong). It's not quite clear from the news report. The lede says Berg "included the banner as part of her one-woman art installation," but a statement put out by the school notes that "the gallery component of the show — two videos and two book projects — ... will be closed until further notice." The School of Art's website has also been describing it as "an exhibition" (rather than "a work").
Machu Picchu Suit Approved (UPDATED 2X)
Peru has reportedly approved a plan to bring a lawsuit against Yale for the return of the Machu Picchu artifacts. BBC News story here. Paul Needham remains the go-to guy at the Yale Daily News.
The parties seemed to have resolved their differences last September, but, according to the Associated Press, that deal "fell through over a dispute over how many artifacts were to be returned."
UPDATE: Derek Fincham offers some thoughts.
UPDATE 2: You can't beat the New York Post headline writers: Peruvians Raise an Inca $tink-A.
The parties seemed to have resolved their differences last September, but, according to the Associated Press, that deal "fell through over a dispute over how many artifacts were to be returned."
UPDATE: Derek Fincham offers some thoughts.
UPDATE 2: You can't beat the New York Post headline writers: Peruvians Raise an Inca $tink-A.
Friday, November 07, 2008
"The door [is] essentially closed on that part of our business"
The Art Market Monitor reports that Sotheby's is done with guarantees.
Thursday, November 06, 2008
Minor Skirmishing
In the Halsey Minor-Sotheby's litigation, the parties are skirmishing over whether Minor's separate class action lawsuit in California can proceed, but, in their most recent brief, filed earlier this week, Sotheby's gets in a few jabs on the substance (all citations omitted):
"Minor argues in conclusory terms that 'because Sotheby’s employs a disclosure standard that contravenes the mandates of New York City’s auction house disclosure law, Minor has sought redress for this systematic violation on a classwide basis.' However, Minor pointedly ignores Sotheby’s discussion [in their previous brief] of 'New York City’s auction house disclosure law.' As we discussed, the New York City department of Consumer Affairs – the agency that promulgated and administers the City’s 'auction house disclosure law' – has determined that Sotheby’s 'disclosure standard' is in full compliance with that law. Minor cannot dispute that this agency determination should be enforced in accordance with well-settled law."
"Minor argues in conclusory terms that 'because Sotheby’s employs a disclosure standard that contravenes the mandates of New York City’s auction house disclosure law, Minor has sought redress for this systematic violation on a classwide basis.' However, Minor pointedly ignores Sotheby’s discussion [in their previous brief] of 'New York City’s auction house disclosure law.' As we discussed, the New York City department of Consumer Affairs – the agency that promulgated and administers the City’s 'auction house disclosure law' – has determined that Sotheby’s 'disclosure standard' is in full compliance with that law. Minor cannot dispute that this agency determination should be enforced in accordance with well-settled law."
Monday, November 03, 2008
"I was in shock. I was in a black hole."
The Boston Globe's Cate McQuaid has the story of painter Nick Lawrence, who in 2004 "stopped by his studio at the Boston Center for the Arts and found that 20 years' worth of paintings and works on paper, totaling almost 1,200 works of art, had gone missing." Apparently the BCA determined the works were in violation of a fire code and, when Lawrence did not respond to a fire abatement notice (he says he never got it), they just moved it all, including some to "an unsecured shed out back." Some of the works went missing; others were severely damaged.
Lawrence is also an art dealer, so was lucky enough to have insurance in place -- "a blanket policy for all the art in my possession. Mine, and anyone else's." But "to get his insurance payout, he was first obligated to sue the BCA, in order to determine liability. He settled with the BCA right before Christmas last year, for $150,000. ... After settling with the BCA, Lawrence and his insurance company had to agree on the appraised value of his work. ... Appraisers for each side disagreed, and the dispute went to mediation. The case was ultimately settled in June, when a court-appointed mediator had the insurance company pay Lawrence $950,000 for his loss. That's a total of more than a million dollars in compensation," though he notes that "five years of legal fees and other costs associated with the lawsuit and insurance claims took a chunk out of the award even before he had the money in hand."
Lawrence is also an art dealer, so was lucky enough to have insurance in place -- "a blanket policy for all the art in my possession. Mine, and anyone else's." But "to get his insurance payout, he was first obligated to sue the BCA, in order to determine liability. He settled with the BCA right before Christmas last year, for $150,000. ... After settling with the BCA, Lawrence and his insurance company had to agree on the appraised value of his work. ... Appraisers for each side disagreed, and the dispute went to mediation. The case was ultimately settled in June, when a court-appointed mediator had the insurance company pay Lawrence $950,000 for his loss. That's a total of more than a million dollars in compensation," though he notes that "five years of legal fees and other costs associated with the lawsuit and insurance claims took a chunk out of the award even before he had the money in hand."
Checking in on the Curator Constables
A while back, I noted that the London police were recruiting art historian-types to form a volunteer art squad. Now, The Art Newspaper has a report "on how this innovative scheme is working."
Derek Fincham comments: "This seems to be a good idea generally, and if it helps the Arts and Antiques Unit, that must be a good thing. But its no substitute for an open and honest market in art and antiquities."
Derek Fincham comments: "This seems to be a good idea generally, and if it helps the Arts and Antiques Unit, that must be a good thing. But its no substitute for an open and honest market in art and antiquities."
Friday, October 31, 2008
New Masters Program
ARCA (The Association for Research into Crimes against Art) has announced a new Masters Program in international art crimes studies. The first program will start next May in Italy; the application deadline is Dec. 1. See here for more information.
Thursday, October 30, 2008
WTF
Lee Rosenbaum notes that the painting that was the subject of the documentary "Who the #$%& is Jackson Pollock?" is being offered for sale by a Toronto gallery for $50 million.
If it sells, it will edge out the next most expensive piece ever sold at this gallery by a mere $49,991,000.
More from The Canadian Press here.
The story notes that "Canadian art observers doubted Horton would get her price," and at $50 million I'm sure that's right, but how much should someone be willing to pay for the chance that the work is someday accepted as a real Pollock? How much is that lottery ticket worth?
If it sells, it will edge out the next most expensive piece ever sold at this gallery by a mere $49,991,000.
More from The Canadian Press here.
The story notes that "Canadian art observers doubted Horton would get her price," and at $50 million I'm sure that's right, but how much should someone be willing to pay for the chance that the work is someday accepted as a real Pollock? How much is that lottery ticket worth?
Wednesday, October 29, 2008
Indictments
Derek Fincham points to a report of two men being indicted for looting Native American sites in Nevada. He thinks it may be connected to the big California antiquities investigation which Roxanna Brown played a role in.
"Brown became—and remains—the only person charged in the fraud probe" (UPDATED)
Seattle Weekly updates the story of Roxanna Brown, who died in federal custody last May, four days after being arrested in connection with an antiquities smuggling investigation.
UPDATE: The LA Times did a three-part series on Brown last month.
UPDATE: The LA Times did a three-part series on Brown last month.
Friday, October 24, 2008
Painting Found, Owner Lost
The Winchester (MA) Star has a story on one of the "more than 300" works left behind by our old friend Melvyn Kohn/William Kingsland.
"They provided collectors with invented, written biographies of nonexistent artists, complete with signatures"
Derek Fincham points to this story of a mother-and-son team of art dealers in New Orleans whose scam was to "buy inexpensive Chinese paintings from wholesale distributors and then market and sell them, at a large profit, as works created by [fictional] Louisiana artists." They've each pleaded guilty to conspiracy to commit mail fraud and face fines of $250,000 and up to five years in prison. Sentencing is scheduled for January.
Derek draws a familiar lesson: "Do not buy art as a tourist, if you are spending more than a thousand dollars, make sure you educate yourself about the dealer and the artist."
Derek draws a familiar lesson: "Do not buy art as a tourist, if you are spending more than a thousand dollars, make sure you educate yourself about the dealer and the artist."
Salander Update
The bankruptcy court has approved the retention of Gurr Johns to help Salander-O'Reilly sell off the more than 4,000 artworks it owns in order to pay creditors. (Approximately 400 creditors have filed claims totaling more than $300 million.) According to Bloomberg's Philip Boroff, "Gurr Johns will receive a retainer of $10,000 a month, plus $300 an hour for court appearances plus 2.5 percent commission on proceeds for sales up to $30 million. If sales exceed $30 million, commissions increase on a sliding scale."
Thursday, October 23, 2008
Flag Law
Tyler Green's been doing a whole series on the flag in contemporary art (start here). From an art law perspective, the key cases are Texas v. Johnson, 491 U.S. 197 (1989), and United States v. Eichman, 496 U.S. 310 (1990), which established that flag-burning is constitutionally protected speech. In his Law, Pragmatism, and Democracy, Judge Posner adds the following:
"Some of the Justices dissented on the ground, which failed to persuade most students of constitutional law (myself included) that the flag is a unique national symbol, which the government should be empowered to protect from being desecrated. To a pragmatist the dissenters' argument is stronger today in the wake of the September 11, 2001 terrorist attacks .... This is not because burning the flag is likely to increase the terrorist threat; not at all. The issue is offensiveness, not danger. But offensiveness is, as I have said, a common basis for permitted restrictions of freedom of speech .... Yet if Congress again passed a law against flag-burning, I think the Supreme Court would again strike it down. Not out of devotion to stare decisis ... but simply to demonstrate that the Court doesn't buckle under pressure. If this conjecture is right, it suggests an essential arbitrariness to law that formalists should find intensely disquieting and that supports the pragmatist's belief that logic is indeed not the life of the law. Much of the law seems to depend on accidents of timing .... If the first flag-burning case had not come to the Court until the autumn of 2001, there might today be no constitutional right to burn the flag."
"Some of the Justices dissented on the ground, which failed to persuade most students of constitutional law (myself included) that the flag is a unique national symbol, which the government should be empowered to protect from being desecrated. To a pragmatist the dissenters' argument is stronger today in the wake of the September 11, 2001 terrorist attacks .... This is not because burning the flag is likely to increase the terrorist threat; not at all. The issue is offensiveness, not danger. But offensiveness is, as I have said, a common basis for permitted restrictions of freedom of speech .... Yet if Congress again passed a law against flag-burning, I think the Supreme Court would again strike it down. Not out of devotion to stare decisis ... but simply to demonstrate that the Court doesn't buckle under pressure. If this conjecture is right, it suggests an essential arbitrariness to law that formalists should find intensely disquieting and that supports the pragmatist's belief that logic is indeed not the life of the law. Much of the law seems to depend on accidents of timing .... If the first flag-burning case had not come to the Court until the autumn of 2001, there might today be no constitutional right to burn the flag."
Wednesday, October 22, 2008
"A move which further blurs the boundaries between auction houses and dealers"
The Art Newspaper reports that Phillips de Pury will be representing photographer Annie Leibovitz. Phillips already represents the estates of photographers Helmut Newton and Guy Bourdin, but this is the first time it will represent a living artist. According to the article, Phillips "would not disclose what commission it will take ..., although it is unlikely to vary dramatically from the usual contemporary gallery level of around 50%."
"I just felt the whole time it was up it was not what I intended"
Sergio Muñoz Sarmiento calls attention to a controversy at UCLA, where curators apparently removed one element of artist Maya Lujan's work from a group show without her consent.
Assuming Lujan's contribution to the show was a single work of art, how is that not an "intentional distortion ... or other modification" of that work?
Assuming Lujan's contribution to the show was a single work of art, how is that not an "intentional distortion ... or other modification" of that work?
Monday, October 20, 2008
Hiding in Plain Sight
Both Lee Rosenbaum and Richard Lacayo pick up on Christopher Knight's post last week on Gov. Rendell's comment that "I think it's been 14 or 15 years since Ray Perelman first came to me with this idea to move the Barnes." Lee is "suprised" by the statement: apparently, while "Perelman's feelings about the project have long been known," what "wasn't previously revealed so explicitly was his direct and early role in lobbying the Governor on behalf of the move." Richard says "it appears that for a long time the Barnes has been a jewel that Philadelphia was angling to grab," and he seems to think the Governor's comment is somehow inconsistent with "the standard story line ... that the move to Philadelphia ... was made necessary by the budget crisis that overtook the place around 2000."
I still don't see what all the excitement is about. As I said on Friday, I don't think anyone ever pretended that the Barnes's financial problems suddenly appeared "around 2000." The "pressing financial difficulties at the foundation" were certainly widely known well before then.
Similarly, Perelman's role in the process has never been a secret either. From a story in the Philadelphia Inquirer a few years ago (May 22, 2005, page A1, I can't seem to find a free link):
"The idea struck businessman Raymond Perelman on a blustery November night in 1995, as Philadelphia society toasted the reopening of the Barnes gallery after a world tour of 80 of its masterpieces. ... Perelman contemplated the breadth and depth of the collection, and a ... thought occurred to him: Why not move this fabulous art downtown, nearer the Art Museum, where more people could see it? ... Among the 500 others dining that night on lamb chops were many with whom he would share his vision."
Among those lamb-chop eating sharees of Perelman's vision were (1) Mike Fisher, who, "as state attorney general, would use his office to support the move," and (2) David L. Cohen, "then Mayor Ed Rendell's chief of staff." The Inquirer continues:
"Perelman would become chairman of the Philadelphia Art Museum in 1997 and share his vision with Rendell, who loved it. The mayor even picked a site: the Youth Study Center on the Parkway, an easy walk from the Art Museum. 'The seed was planted,' Perelman said recently. 'And once the seed was planted, it was growing.'"
Look, there are plenty of reasons for people to be upset about the Barnes move. (I posted some thoughts on the subject here.) But this latest game of "gotcha," based on Gov. Rendell's comment last week, strikes me as misguided.
I still don't see what all the excitement is about. As I said on Friday, I don't think anyone ever pretended that the Barnes's financial problems suddenly appeared "around 2000." The "pressing financial difficulties at the foundation" were certainly widely known well before then.
Similarly, Perelman's role in the process has never been a secret either. From a story in the Philadelphia Inquirer a few years ago (May 22, 2005, page A1, I can't seem to find a free link):
"The idea struck businessman Raymond Perelman on a blustery November night in 1995, as Philadelphia society toasted the reopening of the Barnes gallery after a world tour of 80 of its masterpieces. ... Perelman contemplated the breadth and depth of the collection, and a ... thought occurred to him: Why not move this fabulous art downtown, nearer the Art Museum, where more people could see it? ... Among the 500 others dining that night on lamb chops were many with whom he would share his vision."
Among those lamb-chop eating sharees of Perelman's vision were (1) Mike Fisher, who, "as state attorney general, would use his office to support the move," and (2) David L. Cohen, "then Mayor Ed Rendell's chief of staff." The Inquirer continues:
"Perelman would become chairman of the Philadelphia Art Museum in 1997 and share his vision with Rendell, who loved it. The mayor even picked a site: the Youth Study Center on the Parkway, an easy walk from the Art Museum. 'The seed was planted,' Perelman said recently. 'And once the seed was planted, it was growing.'"
Look, there are plenty of reasons for people to be upset about the Barnes move. (I posted some thoughts on the subject here.) But this latest game of "gotcha," based on Gov. Rendell's comment last week, strikes me as misguided.
Friday, October 17, 2008
I guess it depends on how you define "sudden"
Christopher Knight finds it significant that, at Wednesday's ground-breaking ceremony, Gov. Rendell mentioned that "it's been 14 or 15 years since [art patron] Ray Perelman first came to me with this idea to move the Barnes." The implication seems to be that this revelation is inconsistent with the official story told by supporters of the move -- namely, that "the financial crisis facing the Barnes Foundation circa 2000 was the reason ... [it] was being uprooted from its rightful suburban home and moved to ... downtown Philadelphia" (or, as a former lawyer for opponents of the move put it in a "blistering" letter to Rendell which Knight quotes in his post, the remarks "made short shrift of the Barnes’ Foundation phony argument of a sudden lack of funds").
But I've certainly always had the impression that the financial difficulties started long before 2000. In fact, there was almost never a time when the Barnes wasn't in financial trouble. This LA Times article, for instance, points out that "the Barnes endowment, $10 million in 1951, was so poorly invested that it was still $10 million almost four decades later." And here's a piece, from 1991, by Michael Kimmelman that begins: "Its famous collection of paintings must be worth hundreds of millions of dollars, but the budget from the Barnes Foundation's $10 million endowment barely covers the cost of keeping open its deteriorating galleries for a few days each week." The then-president of the foundation wondered aloud about "trying to undo Dr. Barnes's stricture against selling works from the collection, so that pressing financial difficulties at the foundation could be quickly addressed": "The restoration and modernization of the building that houses the collection of some 1,000 works is only one of the urgent problems. The roughly $10 million endowment, which Mr. Glanton says produces an annual budget of about $1 million, cannot begin to solve these problems."
Given that history, I don't know why anyone would be surprised to learn that people were talking about a possible move in the mid-90's.
But I've certainly always had the impression that the financial difficulties started long before 2000. In fact, there was almost never a time when the Barnes wasn't in financial trouble. This LA Times article, for instance, points out that "the Barnes endowment, $10 million in 1951, was so poorly invested that it was still $10 million almost four decades later." And here's a piece, from 1991, by Michael Kimmelman that begins: "Its famous collection of paintings must be worth hundreds of millions of dollars, but the budget from the Barnes Foundation's $10 million endowment barely covers the cost of keeping open its deteriorating galleries for a few days each week." The then-president of the foundation wondered aloud about "trying to undo Dr. Barnes's stricture against selling works from the collection, so that pressing financial difficulties at the foundation could be quickly addressed": "The restoration and modernization of the building that houses the collection of some 1,000 works is only one of the urgent problems. The roughly $10 million endowment, which Mr. Glanton says produces an annual budget of about $1 million, cannot begin to solve these problems."
Given that history, I don't know why anyone would be surprised to learn that people were talking about a possible move in the mid-90's.
Thursday, October 16, 2008
Distinction without a difference
Sergio calls my attention to this story from a few weeks back about the use in an Anthropologie store in downtown Seattle of some work that looks a lot like a work created by a couple of artists and shown at a Portland, Maine nonprofit art space called The Map Room in 2005. (There are pictures of the two works at the story link.)
One of the artists is quoted as saying, "We had no rights because the piece that we did was in a nonprofit context," adding that if his work "had worn a pricetag and shown in a commercial gallery ..., [then] the artists could sue for copyright infringement."
There's a technical legal term for that: crazy talk.
There's absolutely no distinction for copyright purposes between works created and shown in a commercial gallery and works created and shown in nonprofit spaces (like, say, museums). Now, there may well have been good reasons for concluding that a lawsuit wasn't worth pursuing here, but it's simply not the case that this work was somehow ineligible for copyright protection because it was done "in a nonprofit context."
One of the artists is quoted as saying, "We had no rights because the piece that we did was in a nonprofit context," adding that if his work "had worn a pricetag and shown in a commercial gallery ..., [then] the artists could sue for copyright infringement."
There's a technical legal term for that: crazy talk.
There's absolutely no distinction for copyright purposes between works created and shown in a commercial gallery and works created and shown in nonprofit spaces (like, say, museums). Now, there may well have been good reasons for concluding that a lawsuit wasn't worth pursuing here, but it's simply not the case that this work was somehow ineligible for copyright protection because it was done "in a nonprofit context."
2011
From the AP: "Construction of The Barnes Foundation's new downtown home is slated to be complete by the end of 2011, a timetable that comes after years of legal battles over the future of the foundation and its multibillion-dollar art collection. Demolition of a former juvenile jail on the site is slated to begin this winter, with construction to start in fall 2009, officials announced at an event Wednesday evening. Interior work will begin after that, but no official opening date was set."
Friends of the Barnes member Robert Zaller is quoted as calling the move "a criminal conspiracy to bring about the biggest art heist since the Second World War" and vowed to keep fighting "until we stop it."
Mayor Michael Nutter said: "For all the hooting and hollering about the prospect of the Barnes coming to the parkway, there was a lot of hooting and hollering (by its neighbors) wanting them to shut down and leave. ... Sometimes you have to be a little careful what you wish for."
Friends of the Barnes member Robert Zaller is quoted as calling the move "a criminal conspiracy to bring about the biggest art heist since the Second World War" and vowed to keep fighting "until we stop it."
Mayor Michael Nutter said: "For all the hooting and hollering about the prospect of the Barnes coming to the parkway, there was a lot of hooting and hollering (by its neighbors) wanting them to shut down and leave. ... Sometimes you have to be a little careful what you wish for."
Wednesday, October 15, 2008
Minor Disagreement
In response to this post about his dispute with Sotheby’s, Halsey Minor sent me the following email (and permission to print it):
"Donn, just a few small facts you may wish to bear in mind. I do not live in New York. I split my time between San Francisco and Los Angeles. I have 5 kids in 2 cities and I have 10 companies and I like to collect — in many areas.
"The way I thought it was supposed to work was that people like me would not need to read every periodical on the planet so that we would have the background on the owner of every work of art we may wish to buy. I thought the millions of dollars I pay the auction houses every year was because they did the research for me. According to you its my responsibility, yet I pay Sotheby’s 15%. If you are right I need to stop collecting because I don’t have the time to do the research.
"I probably bid on 25 items that auction season across contemporary, design and American in New York, London and Paris and if you want me to be responsible for what I considered to be their job then you can kiss 95% of the auction buyers goodbye. We have lives and we pay the premium to be informed and protected. Clearly you think the auction houses should get paid for just existing (why call your people specialists then?) and people like me should dedicate our lives to reading every conceivable article, blog, tv show, etc. Because auction houses really don’t have specialists, it’s buyer beware. If your opinion prevails then there is no art industry any more. The more busy you are the more likely you are to have the money to buy art.
"I am quite frankly shocked that you don’t hold auction houses accountable for providing the most basic information to their customers."
I wrote back that I thought my post was pretty neutral, but that I would be remiss if I did not mention the fact that the auction house's interest had been publicly disclosed ahead of the sale; readers can make up their own minds as to what difference that should or should not make. I also said the point I was making at the close of the post was not that he had an obligation to "read every conceivable article, blog, tv show, etc," but rather that -- to the extent one buys into some version of the efficient market hypothesis for artworks -- we can assume that this widely publicized piece of information was fully reflected in the price of the work. What makes this case worth following is that it presents two questions that, to my knowledge at least, have not been answered before: (1) Is Sotheby's correct that a lot-by-lot disclosure of security interests is not required? and (2) Does the kind of relationship he had with his contact there give rise to the sorts of duties he claims Sotheby's owed to him? It’s clear Halsey thinks those are easy questions, but I'm not so sure.
To which he gave the following response (and I’ll stop here because this post is long enough):
"You must remember that for there to be an efficient market the market maker cannot withhold at their discretion information relevant to price. If you were to see the emails the court will see, what I believe is an obvious case will only become more so. How can they disavow a ‘financial interest’ when they needed the money to get repaid in what is clearly a very dicey situation? Lastly, you have not looked at the law on the books but if you do you will see that even when they claim to disclose, their disclosure is inadequate. If you want to see it done right, then look at Christies’ disclosure. Why the difference?
"Sotheby’s has subjected themselves and their shareholders (hence the steep decline in stock price) to massive liability all because they could not admit they were wrong and discuss a solution like gentlemen. I didn’t file the lawsuit. I was just waiting for them to prove their case with documents which they claimed they were going to send. Instead of getting documents I was blindsided with a Federal lawsuit and a bunch of PR hyperactive people describing conversations they never took part in and were simply white boarded over the weekend as ‘a pr strategy.’ I am afraid the government only cut the head off of this snake. I think they have now set themselves up so that the rest of their behavior, well known to the industry, can get cleaned up. Its just too bad stockholders had to pay for so much hubris."
"Donn, just a few small facts you may wish to bear in mind. I do not live in New York. I split my time between San Francisco and Los Angeles. I have 5 kids in 2 cities and I have 10 companies and I like to collect — in many areas.
"The way I thought it was supposed to work was that people like me would not need to read every periodical on the planet so that we would have the background on the owner of every work of art we may wish to buy. I thought the millions of dollars I pay the auction houses every year was because they did the research for me. According to you its my responsibility, yet I pay Sotheby’s 15%. If you are right I need to stop collecting because I don’t have the time to do the research.
"I probably bid on 25 items that auction season across contemporary, design and American in New York, London and Paris and if you want me to be responsible for what I considered to be their job then you can kiss 95% of the auction buyers goodbye. We have lives and we pay the premium to be informed and protected. Clearly you think the auction houses should get paid for just existing (why call your people specialists then?) and people like me should dedicate our lives to reading every conceivable article, blog, tv show, etc. Because auction houses really don’t have specialists, it’s buyer beware. If your opinion prevails then there is no art industry any more. The more busy you are the more likely you are to have the money to buy art.
"I am quite frankly shocked that you don’t hold auction houses accountable for providing the most basic information to their customers."
I wrote back that I thought my post was pretty neutral, but that I would be remiss if I did not mention the fact that the auction house's interest had been publicly disclosed ahead of the sale; readers can make up their own minds as to what difference that should or should not make. I also said the point I was making at the close of the post was not that he had an obligation to "read every conceivable article, blog, tv show, etc," but rather that -- to the extent one buys into some version of the efficient market hypothesis for artworks -- we can assume that this widely publicized piece of information was fully reflected in the price of the work. What makes this case worth following is that it presents two questions that, to my knowledge at least, have not been answered before: (1) Is Sotheby's correct that a lot-by-lot disclosure of security interests is not required? and (2) Does the kind of relationship he had with his contact there give rise to the sorts of duties he claims Sotheby's owed to him? It’s clear Halsey thinks those are easy questions, but I'm not so sure.
To which he gave the following response (and I’ll stop here because this post is long enough):
"You must remember that for there to be an efficient market the market maker cannot withhold at their discretion information relevant to price. If you were to see the emails the court will see, what I believe is an obvious case will only become more so. How can they disavow a ‘financial interest’ when they needed the money to get repaid in what is clearly a very dicey situation? Lastly, you have not looked at the law on the books but if you do you will see that even when they claim to disclose, their disclosure is inadequate. If you want to see it done right, then look at Christies’ disclosure. Why the difference?
"Sotheby’s has subjected themselves and their shareholders (hence the steep decline in stock price) to massive liability all because they could not admit they were wrong and discuss a solution like gentlemen. I didn’t file the lawsuit. I was just waiting for them to prove their case with documents which they claimed they were going to send. Instead of getting documents I was blindsided with a Federal lawsuit and a bunch of PR hyperactive people describing conversations they never took part in and were simply white boarded over the weekend as ‘a pr strategy.’ I am afraid the government only cut the head off of this snake. I think they have now set themselves up so that the rest of their behavior, well known to the industry, can get cleaned up. Its just too bad stockholders had to pay for so much hubris."
Be Reasonable
Interesting rescission decision [$] in today's NY Law Journal in a state court case involving Christie's. In 2002 a company called SWCA signed an agreement with Christie's authorizing them to sell a Picasso sculpture for $5 million. The agreement granted Christie's the right to rescind the sale if it "reasonably determines that the sale may expose Christie's" to any liability, "including liability resulting from claims relating to ... authenticity." A few days later Christie's sold the work, and the agreement with the buyer allowed him to rescind the sale if the work was found to be inauthentic. A couple years later, Christie's "developed concerns about the authenticity" of the work, believing now that it is "a surmoulage, a bronze cast of a second or third generation bronze, rather than ... a bronze cast from the original clay master created by Picasso." According to the court, "most dealers consider surmoulages to be unauthentic." So in 2005 Christie's rescinded its sale to the buyer; it also sought a refund of the portion of the purchase price it had paid to SWCA. SWCA, which had a certificate of authenticity from the author of the catalogue raisonne of Picasso's sculpture and another from Picasso's son Claude, refused, and the lawsuit followed. Though the court expressed a fair degree of skepticism about the reasonableness of Christie's belief that it was exposed to liability (it said the decision "appears to have motivated more by rumor and speculation"), it held that "ultimately, whether Christie's belief was reasonable is a question of fact for the fact-finder," and so denied summary judgment. So, barring a settlement, it's on to trial.
Tuesday, October 14, 2008
Happy Ending for Sad Premonitions
The Goya engraving stolen in Colombia last month has been "found in a Bogota hotel room after a tip-off, investigators said." BBC News story here.
Fighting Forgery
In today's New York Law Journal, Joseph Gioconda argues that "the art community can learn from the actions taken by the luxury goods and consumer products industries as they face a similar threat from counterfeiters. These industries respond by demanding stricter penalties for offenders and stronger federal anticounterfeiting laws. ... Members of the art community can begin to combat forgers using some of the same federal anticounterfeiting laws, but to date they have not done so effectively."
Also in today's Law Journal [$], Benjamin Mulcahy surveys recent case law regarding the copyright termination right.
Also in today's Law Journal [$], Benjamin Mulcahy surveys recent case law regarding the copyright termination right.
"People are finally able to see what all the fuss has been about"
Nashville Public Radio reports that "the famous Stieglitz collection at Fisk University is in the public eye for the first time in nearly three years. ... The school had to meet a court deadline last week to put the art back on public display." (Chancellor Lyle's March decision gave the school until Oct. 6 to renovate the gallery and put the collection back on view.) Hours are 10-to-5 Tuesday through Saturday, so plan accordingly.
Monday, October 13, 2008
A Minor Update
Lee Rosenbaum had an update on Friday on Halsey Minor's battle with Sotheby's. Minor has filed an answer and counterclaim to Sotheby's breach of contract action in the Southern District of New York, and he's also filed a class action complaint in federal court in San Francisco. (Sotheby's has moved to enjoin the California lawsuit.) In both venues, he makes essentially two arguments:
1. The first is that Sotheby's didn't adequately disclose its economic interest in the work in the auction catalogue. (It had served as collateral for a loan to the consignor, Ralph Esmerian.) Sotheby's takes the position that the relevant New York City regulations do not require that such disclosure be made on a lot-by-lot basis: all that must be disclosed is the general practice of making loans to consignors. They say this interpretation was specifically blessed by the NYC Department of Consumer Affairs.
2. The second argument is that, separate and apart from the specific requirements of the regulations, Sotheby's had in this case "disguised itself as a sincere and honest art adviser to [Minor], while in reality acted as a self-profiter." The argument here is that, over time, Minor had formed a relationship with an employee in Sotheby's American Paintings Department in which she acted as his "art consultant and purchasing agent." Minor says he came to trust her, and "relied on her to provide him with honest advice in his dealings in the art market." Yet she too concealed from him the fact that Sotheby's had an interest in the subject painting.
One odd note, for all the talk of non-disclosure, is that, as Lee points out, Sotheby's interest in the painting had been mentioned in articles in the New York Times and Bloomberg (and perhaps other publications). Carol Vogel's widely-read "Inside Art" column on April 18 began: "The tumultuous saga of the jeweler Ralph O. Esmerian, who owes some $187 million to Merrill Lynch, $11.5 million to Sotheby’s and $7.5 million to Christie’s, continues. He is scheduled to pay down a chunk of his Sotheby’s debt on May 22 when that auction house sells his Edward Hicks painting 'The Peaceable Kingdom With the Leopard of Serenity.'" It continued: "When he took out loans, starting in 2005, to purchase the Fred Leighton retail jewelry business, ... he used his art and jewelry as collateral. He stopped making payments in the fall, and [Sotheby’s] decided to sell the Hicks painting." Esmerian himself was quoted as saying,"We believe that the proceeds will satisfy the loan. But if there is a remaining balance, Sotheby’s will give us over a year and a half to pay them back." If you accept any kind of efficient market hypothesis for art, it's hard to believe that information wasn't fully absorbed into the price of the work.
1. The first is that Sotheby's didn't adequately disclose its economic interest in the work in the auction catalogue. (It had served as collateral for a loan to the consignor, Ralph Esmerian.) Sotheby's takes the position that the relevant New York City regulations do not require that such disclosure be made on a lot-by-lot basis: all that must be disclosed is the general practice of making loans to consignors. They say this interpretation was specifically blessed by the NYC Department of Consumer Affairs.
2. The second argument is that, separate and apart from the specific requirements of the regulations, Sotheby's had in this case "disguised itself as a sincere and honest art adviser to [Minor], while in reality acted as a self-profiter." The argument here is that, over time, Minor had formed a relationship with an employee in Sotheby's American Paintings Department in which she acted as his "art consultant and purchasing agent." Minor says he came to trust her, and "relied on her to provide him with honest advice in his dealings in the art market." Yet she too concealed from him the fact that Sotheby's had an interest in the subject painting.
One odd note, for all the talk of non-disclosure, is that, as Lee points out, Sotheby's interest in the painting had been mentioned in articles in the New York Times and Bloomberg (and perhaps other publications). Carol Vogel's widely-read "Inside Art" column on April 18 began: "The tumultuous saga of the jeweler Ralph O. Esmerian, who owes some $187 million to Merrill Lynch, $11.5 million to Sotheby’s and $7.5 million to Christie’s, continues. He is scheduled to pay down a chunk of his Sotheby’s debt on May 22 when that auction house sells his Edward Hicks painting 'The Peaceable Kingdom With the Leopard of Serenity.'" It continued: "When he took out loans, starting in 2005, to purchase the Fred Leighton retail jewelry business, ... he used his art and jewelry as collateral. He stopped making payments in the fall, and [Sotheby’s] decided to sell the Hicks painting." Esmerian himself was quoted as saying,"We believe that the proceeds will satisfy the loan. But if there is a remaining balance, Sotheby’s will give us over a year and a half to pay them back." If you accept any kind of efficient market hypothesis for art, it's hard to believe that information wasn't fully absorbed into the price of the work.
Some Kinda Love
From ARTINFO: "Artist Ed Stross is facing 30 days in jail, two years probation, and a $500 fine for adding the word 'love' to his own mural in Roseville, Mich., a Detroit suburb." The ACLU is apparently making a last ditch effort to get the case re-heard.
The Legal Satyricon describes how we got here. It seems the Michigan Court of Appeals had overturned Stross's conviction on the grounds that the ordinance in question was an unconstitutional restriction of his First Amendment rights. But the Michigan Supreme Court reversed, on timeliness grounds:
"At the time defendant’s variance was granted, then-current MCL 125.585(11) required a party to challenge the constitutionality of the variance within 21 days. Defendant’s painting the word 'LOVE' on the sign clearly violated the 'lettering' condition of the variance. Because this statute prescribed the relevant procedure for challenging the constitutionality of the conditions, defendant was obligated to challenge these conditions in accordance with this procedure. His failure to do so precludes him from raising his constitutional challenge eight years later."
The Legal Satyricon describes how we got here. It seems the Michigan Court of Appeals had overturned Stross's conviction on the grounds that the ordinance in question was an unconstitutional restriction of his First Amendment rights. But the Michigan Supreme Court reversed, on timeliness grounds:
"At the time defendant’s variance was granted, then-current MCL 125.585(11) required a party to challenge the constitutionality of the variance within 21 days. Defendant’s painting the word 'LOVE' on the sign clearly violated the 'lettering' condition of the variance. Because this statute prescribed the relevant procedure for challenging the constitutionality of the conditions, defendant was obligated to challenge these conditions in accordance with this procedure. His failure to do so precludes him from raising his constitutional challenge eight years later."
Back to you, Professor Tate
Gans, Crawford, and Blattmachr respond to Joshua Tate's response to their piece in the Yale Law Journal's "Pocket Part" on the estate taxation of post-death publicity rights.
Art futures
Online prediction market Intrade has created a futures market based on the Mei Moses All Art Index. The Financial Times has the story here. Here is the relevant page at Intrade.
"IMMEDIATE CASH ONLY"
Bloomberg reports that a former Enron exec is being sued by a New York gallery "for allegedly trying to extort more than $150,000 by claiming a painting he bought was a forgery. Historical Design, Inc., an art gallery on East 61st Street in Manhattan, said Shankman purchased three works of art in November 1997 for $40,000. The gallery said Shankman complained this year that one of them ... was a fake. He threatened to 'go public' unless he was paid least $150,000, the gallery said in court papers."
The case actually raises some interesting issues involving the law on extortion. As lawprof Jim Lindgren points out, "someone with an underlying legal claim may threaten to expose it to reach a reasonable settlement. Yet if the amount sought is so substantially out of line with the injury and the threat to embarrass is a big part of the threat, then a criminal charge of extortion can be established." He mentions the case of Autumn Jackson, "who may have been [Bill] Cosby's [out-of-wedlock] daughter, [and who] threatened exposure unless he paid her $40 million. Despite having some possible claim for support as a child, she was convicted because of the excessiveness of her claims and the threats of exposure."
So one issue in the case will be: where did Shankman get his $150,000 figure? Is that out of line with his (claimed) injury? Or is it a good faith estimate of his damages, with the threat to expose the gallery merely a secondary issue?
The case actually raises some interesting issues involving the law on extortion. As lawprof Jim Lindgren points out, "someone with an underlying legal claim may threaten to expose it to reach a reasonable settlement. Yet if the amount sought is so substantially out of line with the injury and the threat to embarrass is a big part of the threat, then a criminal charge of extortion can be established." He mentions the case of Autumn Jackson, "who may have been [Bill] Cosby's [out-of-wedlock] daughter, [and who] threatened exposure unless he paid her $40 million. Despite having some possible claim for support as a child, she was convicted because of the excessiveness of her claims and the threats of exposure."
So one issue in the case will be: where did Shankman get his $150,000 figure? Is that out of line with his (claimed) injury? Or is it a good faith estimate of his damages, with the threat to expose the gallery merely a secondary issue?
"It’s inexcusable and it’s intolerable, and it needs to change"
An art law story in, of all places, the sports pages of the New York Daily News: Wayne Coffey looks at New York's proposed "dead celebrities bill," focusing on the case of tennis legend Arthur Ashe. He reports that the legislation "is expected to be reintroduced in January," and adds:
"The Authors Guild, the nation’s largest society of published authors, among other arts organizations, has lobbied hard against the bill, viewing it as a massive assault on the First Amendment. Other detractors insist it is nothing but a greed-driven, legal gambit by Marilyn Monroe LLC, a company that successfully got a dead-celebrities bill passed in California last year, and is now turning its attention to New York, aiming to elbow photographers who own Monroe photos out of their way."
For another vote for the greed-driven-gambit-by-a-single-company theory, see here.
"The Authors Guild, the nation’s largest society of published authors, among other arts organizations, has lobbied hard against the bill, viewing it as a massive assault on the First Amendment. Other detractors insist it is nothing but a greed-driven, legal gambit by Marilyn Monroe LLC, a company that successfully got a dead-celebrities bill passed in California last year, and is now turning its attention to New York, aiming to elbow photographers who own Monroe photos out of their way."
For another vote for the greed-driven-gambit-by-a-single-company theory, see here.
Friday, October 10, 2008
Dream On (UPDATED)
More from Carol Vogel today on the appearance of the Steve Wynn-owned "La Rêve" in New York (see earlier post here). The show opens Wednesday at Acquavella Galleries.
UPDATE: More from Christopher Knight of the LA Times.
UPDATE: More from Christopher Knight of the LA Times.
Thursday, October 09, 2008
More on the Langmuir Decision
Gregory Gibson, author of Hubert's Freaks (about Bob Langmuir's Arbus photos), criticizes this post of mine (as well as "nearly every other article on the affair") for "characteriz[ing] Bayo Ogunsanya as an innocent 'collector,'" when the truth is that "as Bayo admitted to me himself, he was a dealer who for years had been buying items at storage unit auctions and selling them at flea markets, ephemera shows and on eBay."
I should say in defense that I wasn't "characterizing" Ogunsanya one way or the other: I was merely quoting from the court's decision, which, coming as it did on a motion to dismiss the complaint, accepted Ogunsanya's version of the facts (see footnote 1 of the decision: "The facts set forth here are contained principally in the complaint. As I must, I accept them as true for purposes of this motion").
Beyond that, it's not clear how much turns on the correct characterization of Ogunsanya. In section C of the decision, the court takes on Langmuir's argument that "the identity of Diane Arbus as the photographer was not a matter peculiarly within his own knowledge, and Ogunsanya could have found it out for himself." In rejecting that argument, the court points out, first, that "in the absence of 'hints of . . . falsity' that might trigger a heightened requirement of diligence, Ogunsanya was not required to exercise due diligence." It then adds that "it is not enough for Langmuir to show that the identity of the photographer was not peculiarly within his knowledge. He must further show that the means of obtaining that knowledge were available to Ogunsanya by the exercise of ordinary intelligence" -- yet, here, "only those intimately familiar with Arbus's technique - scholars, experts, and curators - would be qualified to attribute these 'lost' photographs to Arbus. Indeed, at the time of Langmuir's purchase, even the most comprehensive catalogue of Arbus's oeuvre would not have included these prints." It is only after setting out these general principles -- which don't really depend on any particular characterization of Ogunsanya -- that the court (which, again, is constrained at this stage of the proceedings to accept Ogunsanya's version of the facts) mentions that he was "an unsophisticated memorabilia collector who simply bought a trunk at storage house auction." But it's certainly possible to read this section of the decision as suggesting that, if Ogunsanya could not have discovered that the photos were by Arbus "by the exercise of ordinary intelligence," then Langmuir's argument fails even if Ogunsanya is more accurately characterized as a dealer than a collector.
I should say in defense that I wasn't "characterizing" Ogunsanya one way or the other: I was merely quoting from the court's decision, which, coming as it did on a motion to dismiss the complaint, accepted Ogunsanya's version of the facts (see footnote 1 of the decision: "The facts set forth here are contained principally in the complaint. As I must, I accept them as true for purposes of this motion").
Beyond that, it's not clear how much turns on the correct characterization of Ogunsanya. In section C of the decision, the court takes on Langmuir's argument that "the identity of Diane Arbus as the photographer was not a matter peculiarly within his own knowledge, and Ogunsanya could have found it out for himself." In rejecting that argument, the court points out, first, that "in the absence of 'hints of . . . falsity' that might trigger a heightened requirement of diligence, Ogunsanya was not required to exercise due diligence." It then adds that "it is not enough for Langmuir to show that the identity of the photographer was not peculiarly within his knowledge. He must further show that the means of obtaining that knowledge were available to Ogunsanya by the exercise of ordinary intelligence" -- yet, here, "only those intimately familiar with Arbus's technique - scholars, experts, and curators - would be qualified to attribute these 'lost' photographs to Arbus. Indeed, at the time of Langmuir's purchase, even the most comprehensive catalogue of Arbus's oeuvre would not have included these prints." It is only after setting out these general principles -- which don't really depend on any particular characterization of Ogunsanya -- that the court (which, again, is constrained at this stage of the proceedings to accept Ogunsanya's version of the facts) mentions that he was "an unsophisticated memorabilia collector who simply bought a trunk at storage house auction." But it's certainly possible to read this section of the decision as suggesting that, if Ogunsanya could not have discovered that the photos were by Arbus "by the exercise of ordinary intelligence," then Langmuir's argument fails even if Ogunsanya is more accurately characterized as a dealer than a collector.
Tuesday, October 07, 2008
Not Happening
Public Knowledge's Gigi Sohn reports that, with Congress adjourned, it's wait till next year for the orphan works bill.
Monday, October 06, 2008
Friede Family Feud
In today's New York Times, the "indispensable" Kate Taylor reports on a series of lawsuits surrounding a 4,000-piece collection of tribal art from New Guinea that is "generally regarded as the best of its kind in private hands." The collection had been promised by John Friede to the de Young Museum in San Francisco, but "litigation in three states, with [Friede's] two brothers, the museum and Sotheby’s auction house all laying claim to the art," has put the gift in doubt.
Lee Rosenbaum recalls a previous Friede fracas here.
Lee Rosenbaum recalls a previous Friede fracas here.
Friday, October 03, 2008
Fight the power
You may have seen the news last week that the Corcoran Gallery plans to deaccession 10 paintings in December. You didn't think Lee Rosenbaum would take this lying down, now did you?
"Ogunsanya was an unsophisticated memorabilia collector who simply bought a trunk at storage house auction"
A motion to dismiss was denied [$] last week in the case of the memorabilia collector who claims he was duped into selling a bunch of previously unknown Diane Arbus photographs for $3,500. See earlier posts here, here, and here (where I noted that "the buyer's lawyer calls the suit 'frivolous,' but if the plaintiff can show that the buyer did in fact know the works were by Arbus, he would seem to have a pretty good claim of 'unilateral mistake'").
This strikes me as the key point: summarizing the allegations in the complaint (which on a motion to dismiss it accepts as true), the court notes, "Shortly before filing suit, Ogunsanya learned that Langmuir knew back in 2002 that he was purchasing extraordinarily valuable works of art by Diane Arbus. Langmuir admitted to a Philadelphia Inquirer reporter that he knew the photographs were rare Diane Arbus prints before the second transaction with Ogunsanya. Langmuir told the reporter that at the time of the second transaction, he tried to 'stay calm,' but he was 'burning up.'"
That must be a reference to this story, from February of this year. It begins by talking about how he bought a circus trunk in 2003 containing "what he felt were rare Arbus prints." It then mentions that he showed them to a photography curator at the Met, who wasn't sure. And then it says:
"Meanwhile, Langmuir learned there was much more to the collection. He returned to Brooklyn, and the dealer - a Nigerian named Okie - handed him a second envelope of photos. Langmuir tried to stay calm. He was burning up. He peeked inside, and saw 19 more prints, and a note, written in the same handwriting he'd found in Lucas' address books: 'Pictures enclosed for you, Suzie and Dingo. (Went to Amusements of America Carnival in Hagerstown, MD. I saw my first geek.) Diane.' That was the Eureka! moment."
That's going to be a tough admission to overcome.
This strikes me as the key point: summarizing the allegations in the complaint (which on a motion to dismiss it accepts as true), the court notes, "Shortly before filing suit, Ogunsanya learned that Langmuir knew back in 2002 that he was purchasing extraordinarily valuable works of art by Diane Arbus. Langmuir admitted to a Philadelphia Inquirer reporter that he knew the photographs were rare Diane Arbus prints before the second transaction with Ogunsanya. Langmuir told the reporter that at the time of the second transaction, he tried to 'stay calm,' but he was 'burning up.'"
That must be a reference to this story, from February of this year. It begins by talking about how he bought a circus trunk in 2003 containing "what he felt were rare Arbus prints." It then mentions that he showed them to a photography curator at the Met, who wasn't sure. And then it says:
"Meanwhile, Langmuir learned there was much more to the collection. He returned to Brooklyn, and the dealer - a Nigerian named Okie - handed him a second envelope of photos. Langmuir tried to stay calm. He was burning up. He peeked inside, and saw 19 more prints, and a note, written in the same handwriting he'd found in Lucas' address books: 'Pictures enclosed for you, Suzie and Dingo. (Went to Amusements of America Carnival in Hagerstown, MD. I saw my first geek.) Diane.' That was the Eureka! moment."
That's going to be a tough admission to overcome.
Orphan Works Update
The San Francisco Bay Guardian politics blog had an item yesterday on the orphan works bill:
"The bill would deem 'orphaned' any copyrighted work whose author can’t be located by a 'reasonably diligent search.' Artists fear that vague standard could allow individuals and corporations to steal artwork for any personal or commercial purpose after going through the motions of search. The artwork could then to deemed part of the public domain, preventing creators from claiming ownership and compensation for their work."
Again, I think this overstates the case. First, if the copyright holder discovers the use, she will in most cases be entitled to "reasonable compensation." (Which is not nothing: what is the counterargument -- that she should be entitled to unreasonable compensation?) And second, an unsuccessful search doesn't forever throw the work into the public domain or "prevent[] creators from claiming ownership." The overall copyright status of the work doesn't change.
Meanwhile, Editor & Publisher is reporting that, contrary to earlier reports, the bill might come up for a vote in the House as early as today.
"The bill would deem 'orphaned' any copyrighted work whose author can’t be located by a 'reasonably diligent search.' Artists fear that vague standard could allow individuals and corporations to steal artwork for any personal or commercial purpose after going through the motions of search. The artwork could then to deemed part of the public domain, preventing creators from claiming ownership and compensation for their work."
Again, I think this overstates the case. First, if the copyright holder discovers the use, she will in most cases be entitled to "reasonable compensation." (Which is not nothing: what is the counterargument -- that she should be entitled to unreasonable compensation?) And second, an unsuccessful search doesn't forever throw the work into the public domain or "prevent[] creators from claiming ownership." The overall copyright status of the work doesn't change.
Meanwhile, Editor & Publisher is reporting that, contrary to earlier reports, the bill might come up for a vote in the House as early as today.
Thursday, October 02, 2008
"Turn the lights off and keep the car running"
The New York Times profiles street artist Shepard Fairey, who's been arrested 14 times, 15 "if you count a brief detention in Japan."
Wednesday, October 01, 2008
Ugh
Another day, another frustrating VARA decision. This time, it was in artist Chapman Kelley's lawsuit against the Chicago Park District for removing his work from a local park. Story here. After a bench trial, the district court has ruled that VARA did not apply, for two reasons:
1. It held that the work was not "original" enough to qualify for protection under the Copyright Act:
"On the last point [i.e., originality], this Court agrees with the Park District. It is not clear what about the exhibit is original. Is it the elliptical design? The size? The use of native instead of non-native plants? ... Kelley leaves this Court to assume that he is the first person to ever conceive of and express an arrangement of growing wildflowers in ellipse-shaped enclosed area in the manner in which he created his exhibit. ... Without any evidence differentiating Kelley's work from, for example, the oval wildflower beds of Monticello, this Court can only find that [the work] is not subject to copyright protection. Therefore, it is not protected under VARA."
This is just wrong. As the Supreme Court noted in Feist Publications, Inc. v. Rural Telephone Service, Co., "the originality requirement is not particularly stringent." Just two things are required: "[1] that the work was independently created by the author (as opposed to copied from other works), and [2] and that it possesses at least some minimal degree of creativity." A work satisfies the first test ("independent creation") so long as it was not literally copied from an existing work. Kelley clearly passes this test: there isn't another wildflower work somewhere out there in the world which he merely duplicated. The second test ("creativity") sets an "extremely low" bar that Feist tells us is cleared "quite easily by "[t]he vast majority of works." It requires only that a work "possess some creative spark, 'no matter how crude, humble, or obvious it might be.'" Kelley certainly clears this bar as well, as the court's own decision demonstrates: in a later section, it discusses "the theoretical concepts that motivated Kelley's design and placement" of the work, how he "wanted a location that would create a contrast between the linearity of the urban grid, the rondure of the elliptical gardens, and the entropy of the wildflower beds," how, before installing the work, he "hired helicopters and airplanes so that he could survey Chicago from the air, and drove around the city extensively to find a place that would express his artistic vision," and how he designed the work to incorporate "pre-existing elements of the environment," including garage air vents (which I'm not sure but I believe are missing at Monticello). Whatever one may think of Kelley's work, it's impossible to deny the spark of creativity that led to it.
2. As an alternative holding, the court, without much analysis, followed the First Circuit in Phillips v. Pembroke in finding that VARA simply does not protect site-specific art. I discussed the Phillips decision here. The gist of that discussion was that, while a reasonable argument can be made that VARA doesn't prevent the removal of a site-specific work, there's no reason to completely exclude site-specific works from VARA's orbit. Kelley's work serves as a good example. Let's say that, instead of removal, someone had come in one night and destroyed large sections of the work, or splashed red paint all over it, or otherwise defaced it. Why should the work not be protected against those sorts of things? What does the work's site-specificity have to do with any of that?
One last point, for the don't-believe-everything-you-read file. An interim decision in the case about a year ago was widely reported as a victory for Kelley, though "the judge ha[d] yet to determine the damages." (See here, here, here, and even this guy.) Actually, that decision merely held that Kelley's work -- an arrangement of living plants -- could theoretically be protected by VARA. That "victory" now turns out to have been short-lived.
1. It held that the work was not "original" enough to qualify for protection under the Copyright Act:
"On the last point [i.e., originality], this Court agrees with the Park District. It is not clear what about the exhibit is original. Is it the elliptical design? The size? The use of native instead of non-native plants? ... Kelley leaves this Court to assume that he is the first person to ever conceive of and express an arrangement of growing wildflowers in ellipse-shaped enclosed area in the manner in which he created his exhibit. ... Without any evidence differentiating Kelley's work from, for example, the oval wildflower beds of Monticello, this Court can only find that [the work] is not subject to copyright protection. Therefore, it is not protected under VARA."
This is just wrong. As the Supreme Court noted in Feist Publications, Inc. v. Rural Telephone Service, Co., "the originality requirement is not particularly stringent." Just two things are required: "[1] that the work was independently created by the author (as opposed to copied from other works), and [2] and that it possesses at least some minimal degree of creativity." A work satisfies the first test ("independent creation") so long as it was not literally copied from an existing work. Kelley clearly passes this test: there isn't another wildflower work somewhere out there in the world which he merely duplicated. The second test ("creativity") sets an "extremely low" bar that Feist tells us is cleared "quite easily by "[t]he vast majority of works." It requires only that a work "possess some creative spark, 'no matter how crude, humble, or obvious it might be.'" Kelley certainly clears this bar as well, as the court's own decision demonstrates: in a later section, it discusses "the theoretical concepts that motivated Kelley's design and placement" of the work, how he "wanted a location that would create a contrast between the linearity of the urban grid, the rondure of the elliptical gardens, and the entropy of the wildflower beds," how, before installing the work, he "hired helicopters and airplanes so that he could survey Chicago from the air, and drove around the city extensively to find a place that would express his artistic vision," and how he designed the work to incorporate "pre-existing elements of the environment," including garage air vents (which I'm not sure but I believe are missing at Monticello). Whatever one may think of Kelley's work, it's impossible to deny the spark of creativity that led to it.
2. As an alternative holding, the court, without much analysis, followed the First Circuit in Phillips v. Pembroke in finding that VARA simply does not protect site-specific art. I discussed the Phillips decision here. The gist of that discussion was that, while a reasonable argument can be made that VARA doesn't prevent the removal of a site-specific work, there's no reason to completely exclude site-specific works from VARA's orbit. Kelley's work serves as a good example. Let's say that, instead of removal, someone had come in one night and destroyed large sections of the work, or splashed red paint all over it, or otherwise defaced it. Why should the work not be protected against those sorts of things? What does the work's site-specificity have to do with any of that?
One last point, for the don't-believe-everything-you-read file. An interim decision in the case about a year ago was widely reported as a victory for Kelley, though "the judge ha[d] yet to determine the damages." (See here, here, here, and even this guy.) Actually, that decision merely held that Kelley's work -- an arrangement of living plants -- could theoretically be protected by VARA. That "victory" now turns out to have been short-lived.
Resale Agreements
Judd Tully has a piece in the October 2008 issue of Art+Auction on "the little-known but widespread practice of so-called artist/gallery resale agreements in primary market transactions" -- which "basically require or request the buyer to agree, in writing or otherwise, to give the gallery or artist the right of first refusal, usually for a limited time, when the work is about to be resold." My partner John Silberman is quoted:
"A number of dealers and players in the market believe that resale agreements are unenforceable, but several prominent attorneys contradict that notion. 'I do believe they are enforceable,' says John Silberman, a leading New York entertainment and intellectual-property lawyer. 'You just have to do it right and make it very clear.'"
"A number of dealers and players in the market believe that resale agreements are unenforceable, but several prominent attorneys contradict that notion. 'I do believe they are enforceable,' says John Silberman, a leading New York entertainment and intellectual-property lawyer. 'You just have to do it right and make it very clear.'"
Setting Sun
One last link to the New York Sun, which will be missed. On Monday, Kate Taylor had an update on the disputes involving the works of outsider artist Martín Ramírez. Apparently the litigation involving 17 works owned by Maureen Hammond is "close to settlement," but now "the estate is looking into its possible rights to other Ramírez works, including [10 in the collection of] the Guggenheim." The overall state of play is as follows:
"Last year, when a trove of 144 previously unknown drawings came to light, the artist's heirs, who include a daughter in Mexico and 17 grandchildren, formed an estate and got legal representation. As a result of negotiations between the estate and the family in possession of the drawings — the descendants of a doctor who treated Ramírez at one of the mental hospitals — the estate now retains an interest in the works, which are being sold through the Ricco/Maresca Gallery, for prices that range from $50,000 to $350,000. Neither Frank Maresca, who is one of the owners of the gallery, nor a laywer for the estate, Eric Lieberman, would say what percentage of the proceeds the estate will get."
If you want to see what all the fuss is about (remember, Roberta Smith calls him "simply one of the greatest artists of the 20th century"), related exhbitions of Ramírez's "last works" are about to open at the Ricco/Maresca Gallery (tomorrow) and the American Folk Art Museum (next week).
Best of luck to Kate and all the other Sun staffers.
"Last year, when a trove of 144 previously unknown drawings came to light, the artist's heirs, who include a daughter in Mexico and 17 grandchildren, formed an estate and got legal representation. As a result of negotiations between the estate and the family in possession of the drawings — the descendants of a doctor who treated Ramírez at one of the mental hospitals — the estate now retains an interest in the works, which are being sold through the Ricco/Maresca Gallery, for prices that range from $50,000 to $350,000. Neither Frank Maresca, who is one of the owners of the gallery, nor a laywer for the estate, Eric Lieberman, would say what percentage of the proceeds the estate will get."
If you want to see what all the fuss is about (remember, Roberta Smith calls him "simply one of the greatest artists of the 20th century"), related exhbitions of Ramírez's "last works" are about to open at the Ricco/Maresca Gallery (tomorrow) and the American Folk Art Museum (next week).
Best of luck to Kate and all the other Sun staffers.
Tuesday, September 30, 2008
On Hold
Wired News reports that the House won't be taking any action on the orphan works bill until after the Nov. elections. Apparently they've got more important business to deal with.
Monday, September 29, 2008
Renoir Recovered
From this morning's New York Times: "Italian police have recovered a Renoir painting that was stolen from a private collection 33 years ago .... Following a tip from an art critic, Vittorio Sgarbi, who was enlisted to evaluate the work by a gallery owner ..., the police arrested the gallery owner and two other suspects. The oil painting ..., which is valued at $730,000, was stolen from a family in Milan in 1975. It was recovered along with a forgery of a Manet work, which Mr. Sgarbi had also been asked to appraise."
"Britain's art collections are taking a beating"
Also via David Nishimura, the Guardian reports:
"Details released under the Freedom of Information Act by the National Gallery, the Tate and the V&A, reveal that dozens of works have been dented, scratched, dropped and vandalised over the past five years. The culprits are not only malicious or clumsy visitors, but also partygoers, staff and removal men."
"Details released under the Freedom of Information Act by the National Gallery, the Tate and the V&A, reveal that dozens of works have been dented, scratched, dropped and vandalised over the past five years. The culprits are not only malicious or clumsy visitors, but also partygoers, staff and removal men."
"Amateurs, beware"
David Nishimura on the Robert Mardirosian conviction: "With top-rank artworks, thieves often find out that it's not easy to turn them into cash. The only crooks who seem to turn a consistent profit are those who go for a quick ransom payment -- but I suspect that the only ones who manage to pull it off are those who have some experience in the field."
Sunday, September 28, 2008
Orphan Works Act Update (UPDATED)
It's passed in the Senate. Now on to the House, which, as Photo District News points out, has been considering a slightly different version.
UPDATE: The Association of American Editorial Cartoonists "slams" the Senate: "It seems that Congress is using the fiscal crisis as cover to pass this law, which will make it easier for copyright infringers to steal our work."
UPDATE: The Association of American Editorial Cartoonists "slams" the Senate: "It seems that Congress is using the fiscal crisis as cover to pass this law, which will make it easier for copyright infringers to steal our work."
Genuine Faker
The U.K. Independent has the latest on famous forger John Myatt, mentioned earlier here and here (and soon to be the subject of a major motion picture). He currently has a show at Harrods in London.
Embezzlement Suit
Fruitlands Museum is suing its former deputy director and chief financial officer (and three of her children) for an alleged embezzlement scheme:
"The suit alleges that Kempton and her children obtained credit cards in the museum's name and made personal purchases. It also alleges that Kempton used museum funds to pay for personal credit cards; violated her lease by not paying monthly rent for a museum-owned cottage; used Fruitlands funds to pay for utilities at the cottage; and diverted museum funds to her children."
Boston Globe story here. More here from the Harvard Post. Boston criminal lawyer Sam Goldberg hopes the family has "retained experienced counsel to prepare for the onslaught of the filed civil complaint [by the museum] as well as the almost-surely upcoming criminal indictments."
For previous installments of museum financial officer embezzlement, see here and here.
"The suit alleges that Kempton and her children obtained credit cards in the museum's name and made personal purchases. It also alleges that Kempton used museum funds to pay for personal credit cards; violated her lease by not paying monthly rent for a museum-owned cottage; used Fruitlands funds to pay for utilities at the cottage; and diverted museum funds to her children."
Boston Globe story here. More here from the Harvard Post. Boston criminal lawyer Sam Goldberg hopes the family has "retained experienced counsel to prepare for the onslaught of the filed civil complaint [by the museum] as well as the almost-surely upcoming criminal indictments."
For previous installments of museum financial officer embezzlement, see here and here.
Le Rêve on View
The Picasso painting that Steve Wynn put his elbow through in 2006 will be publicly exhibited for the first time since the accident in a show opening Oct. 15 at Acquavella Galleries in New York. More here from Bloomberg's Lindsay Pollock. Wynn ended up suing Lloyd's of London over the proper valuation of the loss (he claimed it was $54 million). The case was promptly settled.
Friday, September 26, 2008
Wednesday, September 24, 2008
"Too far, and not far enough"
Mark Dery on the orphan works bill:
"As written, the OWA won’t solve anything. With its impossibly vague talk of 'reasonable compensation' and 'diligent' searches, its fundamentalist faith in the private sector (commercial registries) and technological quick-fixes (image-search technologies), the OWA is, as Lessig argued on his blog, a bill that both 'goes too far, and not far enough.' Too far because the weasel phrase 'reasonably diligent search' will provide legal cover for unwitting—as well as willful—infringers of copyrighted works that have washed up on the web without identifying information, yet are not listed in commercial registries. Not far enough because the line the OWA draws in the sand between a good-faith effort to determine the copyright status of a putatively orphaned work and intentional infringement is, in Lessig’s wonderfully pungent phrase, 'just mush.'"
"As written, the OWA won’t solve anything. With its impossibly vague talk of 'reasonable compensation' and 'diligent' searches, its fundamentalist faith in the private sector (commercial registries) and technological quick-fixes (image-search technologies), the OWA is, as Lessig argued on his blog, a bill that both 'goes too far, and not far enough.' Too far because the weasel phrase 'reasonably diligent search' will provide legal cover for unwitting—as well as willful—infringers of copyrighted works that have washed up on the web without identifying information, yet are not listed in commercial registries. Not far enough because the line the OWA draws in the sand between a good-faith effort to determine the copyright status of a putatively orphaned work and intentional infringement is, in Lessig’s wonderfully pungent phrase, 'just mush.'"
Monday, September 22, 2008
"The easy part is stealing it; the hard part is selling it"
"Living legend" FBI art-squad agent Robert Wittman retired last week. Stories here and here. Earlier post here.
Next chapter: he's going to work for the Fox Rothschild law firm, to "assist security directors in museums, galleries and auction houses to protect their collections and represent collectors." Says Wittman: "There's a huge exploding market ripe with fraud and forgery out there."
Next chapter: he's going to work for the Fox Rothschild law firm, to "assist security directors in museums, galleries and auction houses to protect their collections and represent collectors." Says Wittman: "There's a huge exploding market ripe with fraud and forgery out there."
Catching Up
Sergio Muñoz Sarmiento points to a couple of stories I missed last week.
One:
"Thieves have stolen an engraving by Spanish master Francisco de Goya from a temporary exhibition in Colombia. The engraving ... was one of 80 by the Spanish artist on loan from the Goya Fuendetodos Cultural Corporation of Zaragoza, Spain."
And two:
"A Midtown gallery from which dozens of photographs of Salvador Dali were stolen didn't do enough to safeguard the precious works, their owners charged in a lawsuit filed yesterday. The heirs of famed photographer Philippe Halsman, who frequently collaborated with the Spanish surrealist, want the Howard Greenberg Gallery to pay them $684,000 for the lost photos, plus damages. They sold several photos through the gallery beginning in 2004, according to the complaint filed in Manhattan federal court. When they asked the gallery to return all of the unsold works ... the owner told them they were stolen, according to the complaint."
One:
"Thieves have stolen an engraving by Spanish master Francisco de Goya from a temporary exhibition in Colombia. The engraving ... was one of 80 by the Spanish artist on loan from the Goya Fuendetodos Cultural Corporation of Zaragoza, Spain."
And two:
"A Midtown gallery from which dozens of photographs of Salvador Dali were stolen didn't do enough to safeguard the precious works, their owners charged in a lawsuit filed yesterday. The heirs of famed photographer Philippe Halsman, who frequently collaborated with the Spanish surrealist, want the Howard Greenberg Gallery to pay them $684,000 for the lost photos, plus damages. They sold several photos through the gallery beginning in 2004, according to the complaint filed in Manhattan federal court. When they asked the gallery to return all of the unsold works ... the owner told them they were stolen, according to the complaint."
"The greatest and most important earthwork in the world was potentially threatened by a corporation that wanted to make a buck"
It's Spiral Jetty week over at Tyler Green's place. From today's opener: "The question is: Is Spiral Jetty threatened by future commercial development? And are arts organizations, most of which have little or no experience in dealing with the confluence of interests and entities involved in preserving an artwork in the landscape, using all available and appropriate measures to save the Jetty?"
I mentioned this story (and my client, the artist Nancy Holt) earlier here.
I mentioned this story (and my client, the artist Nancy Holt) earlier here.
Friday, September 19, 2008
"Please know that you need to remove our logo and the NFL logo from all images"
The Washington Post reports on the latest squabble involving sports artists and trademark rights. At her 43(B)log, Rebecca Tushnet has a pithy summary: "painter paints a picture of Redskins player in uniform; wishes to sell painting; now there’s a dispute over the presence of Redskins [trade]marks in the painting."
Tushnet is also quoted within the article: "The idea in general is that we want artists to be able to portray the world as they see it, and we live in a heavily branded world."
She mentions the Tiger Woods case. There is also the University of Alabama's ongoing lawsuit against sports artist Daniel Moore. Both cases are discussed here.
Tushnet is also quoted within the article: "The idea in general is that we want artists to be able to portray the world as they see it, and we live in a heavily branded world."
She mentions the Tiger Woods case. There is also the University of Alabama's ongoing lawsuit against sports artist Daniel Moore. Both cases are discussed here.
Nelson-Atkins-Lawsuit
The Kansas City Star: "The Kansas City Council has interfered with the Nelson-Atkins Museum of Art’s ability to use its own real estate, according to a new lawsuit filed in federal court. The lawsuit, which the gallery’s foundation and trustees filed Wednesday, asked a judge to stop the city from enforcing an ordinance the council passed this summer that barred the museum from putting offices on property it owns near the gallery."
Wednesday, September 17, 2008
"These works belong, properly, in the place where the largest number of people can enjoy and learn from them"
An interesting student Note in the Notre Dame Law Review on fractional gifts of art (and I don't say that merely because it credits me with giving a name -- the "mismatch problem" -- to the most serious problem with the 2006 legislation on the subject).
The technical corrections enacted earlier this year make it a little out of date, but still worth a read.
The technical corrections enacted earlier this year make it a little out of date, but still worth a read.
Savage Suit
From the New York Post: "A prominent art dealer is suing the makers of a movie that portrays him having incestuous three-way sex with an ex-girlfriend and the son who murdered her."
The movie is "Savage Grace," starring Julianne Moore. The art dealer is Sam Green.
The movie is "Savage Grace," starring Julianne Moore. The art dealer is Sam Green.
Tuesday, September 16, 2008
"Morganelli said that he is not looking to target any specific voting demographic by making this effort a part of his agenda"
The Temple News has more on Democratic candidate John Morganelli, who has made the Barnes battle an issue in the Pennsylvania attorney general election. "If he becomes attorney general, Morganelli would like the case reopened so that a judge can make a decision based on 'more balanced evidence.' He said certain proposals were overlooked, including one by Montgomery County commissioners to offer $150 million to keep the Barnes in its current location." I don't recall any $150 million offer, but there was this.
Recovery
Dutch detectives have recovered five 17th-century paintings that were stolen from the Frans Hals Museum in 2002. "The Golden Age works, worth millions of dollars, were found after an 18-month investigation by Dutch police who used undercover agents to crack the case and worked closely with Britain's Serious and Organized Crime Agency." Three men are "being held on suspicion of receiving the stolen paintings," and "police said they seized cars, including a Ferrari and a Range Rover, at one of the houses along with handguns, body armor, designer watches, drugs and an undisclosed amount of cash."
Monday, September 15, 2008
"Anyone with a touch of larceny in his heart cannot but thrill to hear of such feats of expert-foxing legerdemain"
Terry Teachout on Jonathan Lopez’s “The Man Who Made Vermeer: Unvarnishing the Legend of Master Forger Han van Meegeren.”
Here is another review, from the New York Sun: "In the case of art fraud, however, whatever admiration we feel for the skill of a forger who passes off a modern fake as a venerable Old Master and makes fools of the experts is mixed with a sharp sense of betrayal. A painting that was once proclaimed a masterpiece suddenly loses its beauty when shown up as a forgery. How were we so thoroughly hoodwinked? What we thought was a Vermeer or a Frans Hals and flocked to see turns out overnight to be nothing but kitsch. And yet, isn't it the same painting, fake or not? ... [A] forged artwork makes us question our very eyes."
Here is another review, from the New York Sun: "In the case of art fraud, however, whatever admiration we feel for the skill of a forger who passes off a modern fake as a venerable Old Master and makes fools of the experts is mixed with a sharp sense of betrayal. A painting that was once proclaimed a masterpiece suddenly loses its beauty when shown up as a forgery. How were we so thoroughly hoodwinked? What we thought was a Vermeer or a Frans Hals and flocked to see turns out overnight to be nothing but kitsch. And yet, isn't it the same painting, fake or not? ... [A] forged artwork makes us question our very eyes."
Friday, September 12, 2008
"The only party with the authority to seek to enforce those conditions is the attorney general"
So argues . . . the attorney general, in the Fisk-O'Keeffe appeal. The Tennessean reports here. Lee Rosenbaum thinks "it's time that Fisk realized that it's squandering money on a protracted, losing lawsuit that could be better spent on education (or on maintaining its distinguished art collection)."
The bulk of the argument is that the lower court was mistaken in finding that the O'Keeffe Museum, as O'Keeffe's successor, has a right of reacquisition in the collection or otherwise has standing to challenge the sale. His bottom line position is that the case should be remanded for further proceedings to determine what cy pres relief (if any) Fisk is entitled to: "It is entirely possible that a much less drastic cy pres remedy than selling the collection would satisfy Fisk's needs if Fisk is entitled to any cy pres relief at all."
The brief does not mention the fact that in early 2007 the Attorney General seemed to have approved a settlement between Fisk and the O'Keeffe Museum which would have involved the sale of part of the collection.
The bulk of the argument is that the lower court was mistaken in finding that the O'Keeffe Museum, as O'Keeffe's successor, has a right of reacquisition in the collection or otherwise has standing to challenge the sale. His bottom line position is that the case should be remanded for further proceedings to determine what cy pres relief (if any) Fisk is entitled to: "It is entirely possible that a much less drastic cy pres remedy than selling the collection would satisfy Fisk's needs if Fisk is entitled to any cy pres relief at all."
The brief does not mention the fact that in early 2007 the Attorney General seemed to have approved a settlement between Fisk and the O'Keeffe Museum which would have involved the sale of part of the collection.
Miro Suit
Josh Baer: "Frank Ribelin has sued Tom Schmidt and Christie’s alleging they tried to sell a work of his that had been stolen from the Jesuit Dallas Museum."
The Courthouse News Service has more. The work is a Miro. Ribelin says it was stolen in 1991. Schmidt consigned the piece to Christie's, who contacted the Art Loss Register and discovered that it is listed as stolen. Christie's is holding the work pending resolution of the lawsuit in NY state court.
The Courthouse News Service has more. The work is a Miro. Ribelin says it was stolen in 1991. Schmidt consigned the piece to Christie's, who contacted the Art Loss Register and discovered that it is listed as stolen. Christie's is holding the work pending resolution of the lawsuit in NY state court.
Thursday, September 11, 2008
Heads Roll
Or at least a head:
"David Mickenberg has resigned as director of Wellesley College's Davis Museum and Cultural Center, two weeks after news broke that the museum's prized 1921 painting by Fernand Léger had gone missing."
Geoff Edgers has the full story in the Boston Globe. Richard Lacayo notes that "the AWOL Leger wasn't mentioned in the announcement yesterday by Wellesley President H. Kim Bottomly that Mickenberg was leaving, but it's fair to suppose the two developments might be connected."
"David Mickenberg has resigned as director of Wellesley College's Davis Museum and Cultural Center, two weeks after news broke that the museum's prized 1921 painting by Fernand Léger had gone missing."
Geoff Edgers has the full story in the Boston Globe. Richard Lacayo notes that "the AWOL Leger wasn't mentioned in the announcement yesterday by Wellesley President H. Kim Bottomly that Mickenberg was leaving, but it's fair to suppose the two developments might be connected."
Wednesday, September 10, 2008
"The thief, or thieves, was either very smart or very, very lucky"
The Los Angeles Times:
"The side door of the home in the hills of Encino was unlocked on the Saturday morning in late August. The elderly owners were in a back room, otherwise occupied. The maid had stepped out. So the thief stepped in -- and made quick work of the wealthy real estate investors' multimillion-dollar art collection. Marc Chagall's 'Les Paysans,' gone. Diego Rivera's 'Mexican Peasant,' a blank spot on the wall. Arshile Gorky's 'Cubist Still Life,' ditto. ... By the time the maid returned about an hour later, at least a dozen artworks ... had been stripped from the home. ... The anti-theft system, for whatever reason, did not prevent the heist."
Derek Fincham reviews the four possible reasons for the theft.
"The side door of the home in the hills of Encino was unlocked on the Saturday morning in late August. The elderly owners were in a back room, otherwise occupied. The maid had stepped out. So the thief stepped in -- and made quick work of the wealthy real estate investors' multimillion-dollar art collection. Marc Chagall's 'Les Paysans,' gone. Diego Rivera's 'Mexican Peasant,' a blank spot on the wall. Arshile Gorky's 'Cubist Still Life,' ditto. ... By the time the maid returned about an hour later, at least a dozen artworks ... had been stripped from the home. ... The anti-theft system, for whatever reason, did not prevent the heist."
Derek Fincham reviews the four possible reasons for the theft.
Tuesday, September 09, 2008
More on Taxation of Postmortem Publicity Rights
Back in April, I mentioned a piece in the Yale Law Journal "Pocket Part" examining the estate tax implications of some newly enacted California publicity rights legislation. In the current "Pocket Part," SMU's Joshua Tate responds.
Monday, September 08, 2008
"The problem concerns the exploitation of works whose authors or rights holders cannot be located"
Columbia law professor Jane Ginsburg on the proposed orphan works legislation.
A taste:
"The bills define a 'qualifying search' as a 'diligent effort to locate the owner of the infringed copyright.' ... To assist in searching, section 3 of the bills provides that the Copyright Office is to keep a database of pictorial, graphic and sculptural works, and the effective date of the act, with respect to those works, is delayed by four years (1/1/09 for other works; 1/1/13 for pictorial, graphic and sculptural works). One may infer that these provisions ... are designed to reassure photographers and other visual artists that their works will not be vulnerable to enforced 'orphanage.''
Judging from the response so far, I'd say they're not reassured.
A taste:
"The bills define a 'qualifying search' as a 'diligent effort to locate the owner of the infringed copyright.' ... To assist in searching, section 3 of the bills provides that the Copyright Office is to keep a database of pictorial, graphic and sculptural works, and the effective date of the act, with respect to those works, is delayed by four years (1/1/09 for other works; 1/1/13 for pictorial, graphic and sculptural works). One may infer that these provisions ... are designed to reassure photographers and other visual artists that their works will not be vulnerable to enforced 'orphanage.''
Judging from the response so far, I'd say they're not reassured.
"They are also charged with attempting to defeat the ends of justice"
"Five men have appeared in court accused of demanding £4.25m for the safe return of a Leonardo da Vinci painting. The Madonna with the Yarnwinder was taken from Drumlanrig Castle ... in August 2003. Its disappearance from the stately home became Britain's biggest art theft; an international hunt for the painting followed and it appeared on the FBI's top 10 most wanted pieces of stolen art." Story here.
Friday, September 05, 2008
More on the Sotheby's-Minor Suit
The New York Times has more today on the dispute between Sotheby's and Cnet founder Halsey Minor, which I mentioned earlier this week.
I've also heard directly from Minor, who gave me permission to print the following email:
"Sotheby’s is spending all their time talking about what I said at this time or at that time or why I didn’t have the money, etc, etc. Why would they or anyone care? It’s just a lot of noise that is irrelevant. The only actual fact is they did not get the money.
"They of course know I have the capacity to pay but they want to focus on everything except my one simple question. Did they have an economic interest in the painting they were showing me privately and touting, or did they not? Who knows, I still may have paid $9.6 mm for the painting, but at least I would have been able to take their scholarship/marketing in context and with a grain of salt.
"When a broker shows you a home and sells you on its merits and you find out later the broker owned the home, the law has been broken and the process has been tainted. I am going to bet that when they have to finally cough up the documents and stop spouting nonsense they will have served in the dual role of auctioneer and secret undisclosed owner. And all else will have been long forgotten.
"Sometimes companies need to learn that disclosure and honesty is better in the long term than fighting and disparaging."
I've also heard directly from Minor, who gave me permission to print the following email:
"Sotheby’s is spending all their time talking about what I said at this time or at that time or why I didn’t have the money, etc, etc. Why would they or anyone care? It’s just a lot of noise that is irrelevant. The only actual fact is they did not get the money.
"They of course know I have the capacity to pay but they want to focus on everything except my one simple question. Did they have an economic interest in the painting they were showing me privately and touting, or did they not? Who knows, I still may have paid $9.6 mm for the painting, but at least I would have been able to take their scholarship/marketing in context and with a grain of salt.
"When a broker shows you a home and sells you on its merits and you find out later the broker owned the home, the law has been broken and the process has been tainted. I am going to bet that when they have to finally cough up the documents and stop spouting nonsense they will have served in the dual role of auctioneer and secret undisclosed owner. And all else will have been long forgotten.
"Sometimes companies need to learn that disclosure and honesty is better in the long term than fighting and disparaging."
Thursday, September 04, 2008
Kick-off
From Artnet News: " The Museum of Contemporary Art, Chicago is hosting an event with the Art Dealers Association of America, Sept. 8, 2008, 6-8 pm, designed to draw public attention and support to the 'Artist Museum Partnership Act,' which is currently languishing in Congress. .... The event marks the kick-off of ADAA’s '50 Artists for 50 States' campaign, for which the organization is attempting to arrange donations of works from artists to institutions in all 50 states, as a way to show the public benefits of the proposed law, which would allow artists to write off the 'fair market value' of works when donating them to nonprofits."
I posted some thoughts on the plan earlier this summer here.
I posted some thoughts on the plan earlier this summer here.
Minor Dispute
Bloomberg reports that Sotheby's is suing Cnet founder Halsey Minor in the Southern District of New York for failing to pay $16.8 million for the purchase of three works of art, including the "Peaceable Kingdom" recently sold by Ralph Esmerian.
Minor "said in an interview today that he refused to pay ... for 'Peaceable Kingdom' after discovering that Sotheby's hadn't disclosed that it had an interest in the work."
Sotheby's counters that "[o]ver the last several weeks Mr. Minor told us the sole reason he hadn't paid was because he was owed money by others, so this contention about non-disclosure is not credible. That the Hicks was loan collateral was widely reported.''
Minor "said in an interview today that he refused to pay ... for 'Peaceable Kingdom' after discovering that Sotheby's hadn't disclosed that it had an interest in the work."
Sotheby's counters that "[o]ver the last several weeks Mr. Minor told us the sole reason he hadn't paid was because he was owed money by others, so this contention about non-disclosure is not credible. That the Hicks was loan collateral was widely reported.''
Wednesday, September 03, 2008
Duluth Deaccessioning
Responding to my post yesterday connecting Nigel Warburton's thoughts on Scotland's Titian problem to various recent U.S. deacessioning controversies, Derek Fincham points out that "the difference in Scotland and the UK is the process is somewhat more regulated. If a work is slated for export outside of the UK, important 'Waverley' level works are temporarily delayed so funds can be raised. Perhaps a similar idea could work in the United States, though that idea is anathema to the ethos of many American cultural institutions which are often eager to acquire works to build collections."
He also identifies the next case on the deaccession docket: the City of Duluth is considering selling an antique Tiffany window located in a downtown railroad depot to help fill the city's budget deficit. The window is said to be worth between $1 million and $3 million. Derek wonders "what differences there might be between the city of Dulth's potential decision to sell the window, and the University of Iowa's potential decision to sell its Pollock." His advice: "I'd recommend to Duluth, that if it is considering selling the window, it give civic groups and interested parties an opportunity to raise funds to keep the window in Duluth (as the Waverley criteria accomplish in the UK), or try to work out a sharing agreement to allow the window to be viewed by its citizens. If so, then it seems like a good idea to allow the city to continue its day-to-day operations in exchange for auctioning off the window."
He also identifies the next case on the deaccession docket: the City of Duluth is considering selling an antique Tiffany window located in a downtown railroad depot to help fill the city's budget deficit. The window is said to be worth between $1 million and $3 million. Derek wonders "what differences there might be between the city of Dulth's potential decision to sell the window, and the University of Iowa's potential decision to sell its Pollock." His advice: "I'd recommend to Duluth, that if it is considering selling the window, it give civic groups and interested parties an opportunity to raise funds to keep the window in Duluth (as the Waverley criteria accomplish in the UK), or try to work out a sharing agreement to allow the window to be viewed by its citizens. If so, then it seems like a good idea to allow the city to continue its day-to-day operations in exchange for auctioning off the window."
Phish Food
The Guardian reports:
"A convict on death row in America has agreed to let his body be made into a work of art if his final appeal against execution fails. Gene Hathorn, who has been on death row since 1985, has given his consent for artist Marco Evaristti, the bad boy of the Danish art scene, to use his body as an art installation. 'My aim is to first deep freeze Gene's body and then make fish food out of it. Visitors to my exhibition will be able to feed goldfish with it,' Evaristti told the Art Newspaper."
Lawprof Ann Althouse: "Oh, bullshit. How is this different from scattering ashes on... wherever... a beach volleyball court in China?"
It's supposed to say something about capital punishment, but Althouse says: "The artist imagines that the work will somehow make an argument against capital punishment. I make my living trying to fathom legal arguments, and I don't see it at all."
"A convict on death row in America has agreed to let his body be made into a work of art if his final appeal against execution fails. Gene Hathorn, who has been on death row since 1985, has given his consent for artist Marco Evaristti, the bad boy of the Danish art scene, to use his body as an art installation. 'My aim is to first deep freeze Gene's body and then make fish food out of it. Visitors to my exhibition will be able to feed goldfish with it,' Evaristti told the Art Newspaper."
Lawprof Ann Althouse: "Oh, bullshit. How is this different from scattering ashes on... wherever... a beach volleyball court in China?"
It's supposed to say something about capital punishment, but Althouse says: "The artist imagines that the work will somehow make an argument against capital punishment. I make my living trying to fathom legal arguments, and I don't see it at all."
Tuesday, September 02, 2008
"The lawsuits definitely impacted our enrollment because of the uncertainty they brought"
From the AP: "Lawsuits that challenged Randolph College's decisions to go coed and to sell valuable artwork have been resolved, but they apparently are having a lingering effect. The school's enrollment this fall is the lowest in about four decades, and officials say that's because prospective students were confused about the school's future."
The story adds that, since "opponents of the art sale withdrew their case in March, ... [t]he school has sold one painting, Rufino Tamayo's 'Trovador' ... for $7.2 million, and [Randolph president John] Klein said it will sell the other three when the market is right."
The story adds that, since "opponents of the art sale withdrew their case in March, ... [t]he school has sold one painting, Rufino Tamayo's 'Trovador' ... for $7.2 million, and [Randolph president John] Klein said it will sell the other three when the market is right."
"Has any museum or gallery ever been placed in such an appalling predicament?"
The Times Online: "Not only has John Leighton, director-general of the National Galleries of Scotland, got to find £50 million in only four months for Diana & Actaeon, one of Titian's masterpieces, but he has to find another £50 million in four years to buy its pendant, Diana & Callisto. If not, they and some 20 other pictures in the Duke of Sutherland's collection, undoubtedly the finest Old Masters in private hands, may be lost to Scotland."
Virtual Philosopher Nigel Warburton: "Should the State pay £100 million (which is a bargain by current market standards) to stop two great Titians being sold overseas? ... The paintings' removal will be a great loss for many. Yet £100 million is a large enough sum to save or at least substantially improve many lives if it were invested in health care or in good social housing, or to stimulate contemporary artists if it were used to found an arts centre. Great paintings have become so expensive to acquire that this question is coming up every few years: when resources are scarce, could we justify State expenditure at this sort of level on paintings?"
Ophelia Benson comments: "Another point is that it's not a choice between the Titians and the social goods - it's a choice between location of the Titians and the social goods - at least, it is if the Titians are destined for another museum or other public place. ... If the Titians will be sold to private collectors, that's the loss of a general public good, not just a UK or Scottish public good. If they will be sold to another museum, that just means it will be easier for some people to see them and more difficult for others; they'll be recirculated rather than removed" (my emphasis).
And Warburton agrees: "And even if the paintings go into a private collection, many private collectors are sufficiently philanthropic (or else recognise that public display in major collections increases the worth of the paintings) to lend them to national museums and travelling exhibitions. So even in a private collector's hands, they might be available to many people."
I think this latter point applies just as well to the various deacessioning controversies that have come up over the last few years. So, for example, to oppose the deal between Fisk University and Alice Walton's Crystal Bridges Museum on "anti-deaccessioning" grounds just means that you would prefer that Fisk suffer whatever consequences follow from its inability to consummate the proposed sale (elimination of various athletic programs, faculty layoffs, etc.) than that the works at issue be relocated (and, in that case, for only half the time, and probably to a venue which would allow even more people to see them).
Virtual Philosopher Nigel Warburton: "Should the State pay £100 million (which is a bargain by current market standards) to stop two great Titians being sold overseas? ... The paintings' removal will be a great loss for many. Yet £100 million is a large enough sum to save or at least substantially improve many lives if it were invested in health care or in good social housing, or to stimulate contemporary artists if it were used to found an arts centre. Great paintings have become so expensive to acquire that this question is coming up every few years: when resources are scarce, could we justify State expenditure at this sort of level on paintings?"
Ophelia Benson comments: "Another point is that it's not a choice between the Titians and the social goods - it's a choice between location of the Titians and the social goods - at least, it is if the Titians are destined for another museum or other public place. ... If the Titians will be sold to private collectors, that's the loss of a general public good, not just a UK or Scottish public good. If they will be sold to another museum, that just means it will be easier for some people to see them and more difficult for others; they'll be recirculated rather than removed" (my emphasis).
And Warburton agrees: "And even if the paintings go into a private collection, many private collectors are sufficiently philanthropic (or else recognise that public display in major collections increases the worth of the paintings) to lend them to national museums and travelling exhibitions. So even in a private collector's hands, they might be available to many people."
I think this latter point applies just as well to the various deacessioning controversies that have come up over the last few years. So, for example, to oppose the deal between Fisk University and Alice Walton's Crystal Bridges Museum on "anti-deaccessioning" grounds just means that you would prefer that Fisk suffer whatever consequences follow from its inability to consummate the proposed sale (elimination of various athletic programs, faculty layoffs, etc.) than that the works at issue be relocated (and, in that case, for only half the time, and probably to a venue which would allow even more people to see them).
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