Thursday, December 03, 2009
"The film, for me, seriously undermined its own credibility by committing errors of substance and emphasis"
Lee Rosenbaum previews her review of the Barnes documentary, The Art of the Steal. I wasn't too impressed with the movie either.
Wednesday, December 02, 2009
"It raises the question of whether a private foundation such as this has any legal obligation ... to authenticate"
An important decision yesterday from the Appellate Division on the obligation to authenticate. For the most part, the case should provide a measure of comfort to artist foundations and authentication committees, but, as we'll see below, some uncertainty remains.
The case involves two theatrical stage sets (and related material) that the plaintiff claims are works by Alexander Calder. He submitted them to the Calder Foundation for authentication in 1997. He claims he never got a response one way or the other, and that without a confirmation of authenticity from the Foundation, he cannot sell the work. The trial court granted the defendants' motion to dismiss. The First Department has now affirmed.
First, the good news for similarly-situated foundations. The panel begins by noting:
"Whether the art world accepts a catalogue raisonne as a definitive listing of an artist's work is a function of the marketplace, rather than of any legal directive or requirement. As a consequence, neither the creation of such a catalogue nor its inclusion or exclusion of particular works creates any legal entitlements or obligations" (emphasis added).
It adds:
"[A] declaration of authenticity would not resolve plaintiff's situation, because his inability to sell the sets is a function of the marketplace. If buyers will not buy works without the Foundation's listing them in its catalogue raisonne, then the problem lies in the art world's voluntary surrender of that ultimate authority to a single entity. If it is immaterial to the art world that plaintiff has proof that the sets were built to Calder's specifications, and that Calder approved of their construction, then it will be immaterial to the art world that a court has pronounced the work 'authentic.' Plaintiff's problem can be solved only when buyers are willing to make their decisions based upon the Work and the unassailable facts about its creation, rather than allowing the Foundation's decisions as to what merits inclusion in its catalogue raisonne to dictate what is worthy of purchase."
In sum, the case turns on "whether a duty is owed to plaintiff by ... the defendants that would entitle him to any of the relief [he] seeks — whether based on the Foundation's not-for-profit status, or its explicit or implicit promises or assertions, or its unique position as the sole arbiter of whether work will be included in Calder's catalogue raisonne." The panel "discern[ed] no such duty on defendants' part, and therefore no enforceable right of plaintiff to relief against them."
So far, so good for foundations that authenticate, or which are putting together catalogues raisonne: the quoted language would seem to suggest that they can reject work without worrying about getting sued. But then we come to the panel's discussion of the cause of action for "product disparagement."
The panel begins by noting that "the difficulty of applying the product disparagement cause of action to the assertions made in the present case is that plaintiff here has alleged no affirmative publication of a false statement to third persons." But, it continues, "as a practical matter, the denial of authentication is arguably indistinguishable from a direct assertion of inauthenticity." So failing to authenticate the work, or omitting it from the catalogue, is really just like affirmatively announcing to the world: "This work is not authentic. Stay away from it."
The panel acknowledges that "there is no question that adopting this approach and treating the Foundation's non-response as a publication asserting the Work's inauthenticity to the world at large would constitute a substantial expansion of the law. Yet the fact that non-inclusion in a catalogue raisonne is understood in the art world as a conclusion that the work is not authentic tends to support the application of the cause of action in circumstances such as these" (emphases added).
After taking us that far, though, the panel steps back . . . and dodges the issue: "However, we need not come to a conclusion on that point in this case because the claim must in any event fail on statute of limitations grounds." The statute of limitations for product disparagement is one year. The plaintiff submitted the work to the Foundation in 1997/98; by 2004/05, according to his own complaint, he is losing potential sales because of the Foundation's refusal to authenticate the work. Since he didn't bring suit until 2007, his claim is therefore time-barred.
The other door that was left at least partially open relates to the antitrust claim (under the Donnelly Act, New York's antitrust statute). The panel attempts to distinguish this case from the currently pending lawsuit against the Warhol Foundation, and in so doing provides a blueprint for future plaintiffs to survive a motion to dismiss:
"In holding that the complaint in [the Warhol case] successfully stated a claim for an illegal market restraint and monopolization, the district court cited a number of alleged facts: that the Board made unsolicited suggestions to owners of Warhol works that they should submit their works for authentication; that such policies as the Board has regarding authentication were inconsistently applied; that the Board reversed prior determinations authenticating works; that the Board refused to authenticate works that the Foundation had previously attempted to purchase; and that, unlike other such boards, which are composed of well qualified and well known independent experts, the Warhol Board is made up of individuals who lack experience and who are not independent of the Warhol Foundation. Plaintiff's complaint here contains virtually none of the allegations that made the restraint of trade claim viable in the [Warhol] case" (emphasis added).
I suspect this will (now) be the last complaint in this genre about which that can be said.
The case involves two theatrical stage sets (and related material) that the plaintiff claims are works by Alexander Calder. He submitted them to the Calder Foundation for authentication in 1997. He claims he never got a response one way or the other, and that without a confirmation of authenticity from the Foundation, he cannot sell the work. The trial court granted the defendants' motion to dismiss. The First Department has now affirmed.
First, the good news for similarly-situated foundations. The panel begins by noting:
"Whether the art world accepts a catalogue raisonne as a definitive listing of an artist's work is a function of the marketplace, rather than of any legal directive or requirement. As a consequence, neither the creation of such a catalogue nor its inclusion or exclusion of particular works creates any legal entitlements or obligations" (emphasis added).
It adds:
"[A] declaration of authenticity would not resolve plaintiff's situation, because his inability to sell the sets is a function of the marketplace. If buyers will not buy works without the Foundation's listing them in its catalogue raisonne, then the problem lies in the art world's voluntary surrender of that ultimate authority to a single entity. If it is immaterial to the art world that plaintiff has proof that the sets were built to Calder's specifications, and that Calder approved of their construction, then it will be immaterial to the art world that a court has pronounced the work 'authentic.' Plaintiff's problem can be solved only when buyers are willing to make their decisions based upon the Work and the unassailable facts about its creation, rather than allowing the Foundation's decisions as to what merits inclusion in its catalogue raisonne to dictate what is worthy of purchase."
In sum, the case turns on "whether a duty is owed to plaintiff by ... the defendants that would entitle him to any of the relief [he] seeks — whether based on the Foundation's not-for-profit status, or its explicit or implicit promises or assertions, or its unique position as the sole arbiter of whether work will be included in Calder's catalogue raisonne." The panel "discern[ed] no such duty on defendants' part, and therefore no enforceable right of plaintiff to relief against them."
So far, so good for foundations that authenticate, or which are putting together catalogues raisonne: the quoted language would seem to suggest that they can reject work without worrying about getting sued. But then we come to the panel's discussion of the cause of action for "product disparagement."
The panel begins by noting that "the difficulty of applying the product disparagement cause of action to the assertions made in the present case is that plaintiff here has alleged no affirmative publication of a false statement to third persons." But, it continues, "as a practical matter, the denial of authentication is arguably indistinguishable from a direct assertion of inauthenticity." So failing to authenticate the work, or omitting it from the catalogue, is really just like affirmatively announcing to the world: "This work is not authentic. Stay away from it."
The panel acknowledges that "there is no question that adopting this approach and treating the Foundation's non-response as a publication asserting the Work's inauthenticity to the world at large would constitute a substantial expansion of the law. Yet the fact that non-inclusion in a catalogue raisonne is understood in the art world as a conclusion that the work is not authentic tends to support the application of the cause of action in circumstances such as these" (emphases added).
After taking us that far, though, the panel steps back . . . and dodges the issue: "However, we need not come to a conclusion on that point in this case because the claim must in any event fail on statute of limitations grounds." The statute of limitations for product disparagement is one year. The plaintiff submitted the work to the Foundation in 1997/98; by 2004/05, according to his own complaint, he is losing potential sales because of the Foundation's refusal to authenticate the work. Since he didn't bring suit until 2007, his claim is therefore time-barred.
The other door that was left at least partially open relates to the antitrust claim (under the Donnelly Act, New York's antitrust statute). The panel attempts to distinguish this case from the currently pending lawsuit against the Warhol Foundation, and in so doing provides a blueprint for future plaintiffs to survive a motion to dismiss:
"In holding that the complaint in [the Warhol case] successfully stated a claim for an illegal market restraint and monopolization, the district court cited a number of alleged facts: that the Board made unsolicited suggestions to owners of Warhol works that they should submit their works for authentication; that such policies as the Board has regarding authentication were inconsistently applied; that the Board reversed prior determinations authenticating works; that the Board refused to authenticate works that the Foundation had previously attempted to purchase; and that, unlike other such boards, which are composed of well qualified and well known independent experts, the Warhol Board is made up of individuals who lack experience and who are not independent of the Warhol Foundation. Plaintiff's complaint here contains virtually none of the allegations that made the restraint of trade claim viable in the [Warhol] case" (emphasis added).
I suspect this will (now) be the last complaint in this genre about which that can be said.
"Museums have mountains of stuff in their basements, which just takes up space. They're in limbo"
Interesting article by Daniel Grant in the Maine Antique Digest on museum "swaps."
Tuesday, December 01, 2009
"Until now, it was against the law for any British national museum to let go of any object in its collection, no matter what the reason"
Now that's taking the idea of the "public trust" seriously. No matter what the reason. What we have here is something else entirely. I believe Hugh Davies has found the technical term.
"Scanning alone is not creative enough to warrant its own copyright"
An interview with Peter Hirtle on Cornell University Library's new permissions guidelines for public domain images [via].
"Ideally, this will assist in the deconstruction of art theft as the sexy and elegant criminal enterprise"
A self-guided London art theft walking tour from Mark Durney.
Saturday, November 28, 2009
Tell me again about the "public trust"
Artnet reports that a Nov. 24 sale at Christie's "included a group of 15 Isfahan carpets from the collection of the Corcoran Gallery of Art, which received them in a 1925 bequest from Montana senator William Andrews Clark .... No word from the museum at press time regarding the sale, but this particular deaccession seems to have prompted few protests, if any."
Remember: "once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations."
Remember: "once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations."
"They have focused much more on the overseas market, and particularly the American market, since about 2000"
The Wall Street Journal: "Iconic cultural institutions like the Tate, the Mariinsky and the Louvre all have set up American or international 'friends groups' in the last decade, in part to cash in on donations coming from the U.S. and to allow American supporters to take advantage of domestic tax write-offs."
Some previous thoughts on these "friends" groups here.
Some previous thoughts on these "friends" groups here.
Tuesday, November 24, 2009
"To think that a majority of people voted to part with a Tiffany window is a miracle"
The Boston Globe had a story yesterday entitled "Putting its mission before its treasure." It's about a financially-struggling Vermont church that has decided to sell its "prized asset," a Tiffany window depicting St. John the Divine:
"The church considered selling its pews; it had an appraiser value its bell. It also has three other stained-glass windows that church records say are Tiffany designs but which are not signed and are difficult to authenticate. The St. John window with its Tiffany Studios insignia was by far the most valuable and seemed the logical choice."
My question to the Deaccession Police is: is this okay? Isn't the window held in the "public trust"? What about the pews and the bell? The church receives the same tax benefits that, according to the anti-deaccessionists, cause works owned by museums to be held in the public trust (and therefore prevent their sale). Isn't this going to cause other churches across the country to start selling off their stained-glass windows just to feed the homeless?
What gives the First Baptist Church of Brattleboro the right to sell off assets in order to serve its larger mission but prevents the National Academy of Art, or Brandeis University, from doing the same thing?
How exactly do works of art come to be held in the public trust? What is the mechanism? If it's not the tax benefits, what is it?
"The church considered selling its pews; it had an appraiser value its bell. It also has three other stained-glass windows that church records say are Tiffany designs but which are not signed and are difficult to authenticate. The St. John window with its Tiffany Studios insignia was by far the most valuable and seemed the logical choice."
My question to the Deaccession Police is: is this okay? Isn't the window held in the "public trust"? What about the pews and the bell? The church receives the same tax benefits that, according to the anti-deaccessionists, cause works owned by museums to be held in the public trust (and therefore prevent their sale). Isn't this going to cause other churches across the country to start selling off their stained-glass windows just to feed the homeless?
What gives the First Baptist Church of Brattleboro the right to sell off assets in order to serve its larger mission but prevents the National Academy of Art, or Brandeis University, from doing the same thing?
How exactly do works of art come to be held in the public trust? What is the mechanism? If it's not the tax benefits, what is it?
"Couple charged with trying to sell fake Warhols"
Story here.
Greg Allen says this is "officially the best Fake Warhol In Utah story since the artist sent an impostor to deliver a lecture at the University of Utah in 1968."
Greg Allen says this is "officially the best Fake Warhol In Utah story since the artist sent an impostor to deliver a lecture at the University of Utah in 1968."
Christie's Suit
Courthouse News Service: "An Indian art dealer says it paid Christie's more than $800,000 for 29 pieces of art, which the auction house failed to deliver and now is threatening to sell to someone else."
More from The Art Market Monitor, including a statement from Christie's ("Christie’s finds this complaint completely meritless. We have been seeking to recover a significant debt from an Osian-related party for more than one year") and a link to the complaint.
More from The Art Market Monitor, including a statement from Christie's ("Christie’s finds this complaint completely meritless. We have been seeking to recover a significant debt from an Osian-related party for more than one year") and a link to the complaint.
"I’m not sure that many people realize the collection will be reinstalled in galleries of the same size, the same shape, the same relationship ...
... and in exactly the same way it is hung in Merion." That's Barnes Foundation executive director and president Derek Gilman, in this Art & Auction piece by Judd Tully.
Monday, November 23, 2009
Art and Money
A new paper from Goetzmann, Renneboog & Spaenjers. From the abstract:
"This paper investigates the impact of equity markets and top incomes on art prices. ... [W]e demonstrate that ... equity market returns have a significant impact on the price level in the art market. Over a shorter time frame, we also find empirical evidence that an increase in income inequality may lead to higher prices for art .... Finally, the results of Johansen cointegration tests strongly suggest the existence of a long-term relation between top incomes and art prices."
"This paper investigates the impact of equity markets and top incomes on art prices. ... [W]e demonstrate that ... equity market returns have a significant impact on the price level in the art market. Over a shorter time frame, we also find empirical evidence that an increase in income inequality may lead to higher prices for art .... Finally, the results of Johansen cointegration tests strongly suggest the existence of a long-term relation between top incomes and art prices."
Friday, November 20, 2009
Schrock and Roll (UPDATED)
Clarida and Bernstein on the recent Schrock decision (mentioned earlier here):
"[T]he cases appeared to diverge as to three fundamental questions: (1) Is a photograph of a copyrighted work a derivative work at all? (the 'Definition Question'); (2) Must such a derivative work exhibit a higher level of originality in order to qualify for copyright protection? (the 'Originality Question'); (3) Must the creator of such a derivative work obtain separate specific permission to register his or her copyright, over and above the permission required to create the derivative work? (the 'Permission Question').
"[T]he cases appeared to diverge as to three fundamental questions: (1) Is a photograph of a copyrighted work a derivative work at all? (the 'Definition Question'); (2) Must such a derivative work exhibit a higher level of originality in order to qualify for copyright protection? (the 'Originality Question'); (3) Must the creator of such a derivative work obtain separate specific permission to register his or her copyright, over and above the permission required to create the derivative work? (the 'Permission Question').
"The Seventh Circuit explicitly declines to answer the first of these questions in its Schrock reversal, but by clearly answering 'no' to the other two, the new ruling greatly reduces the significance of the Definition Question. If a derivative work need not meet a higher originality threshold and need not obtain separate permission to register, it really should not matter very much, in most cases, whether the photo at issue is deemed a derivative work of its copyrighted subject or not."
UPDATE: More from the folks at the Harvard Journal of Law & Technology.
Thursday, November 19, 2009
"An amazing story on many levels"
Judith Dobrzynski on the most stolen work of art in recorded history.
Tuesday, November 17, 2009
"The jury ... took less than 40 minutes, including lunch"
The Houston Chronicle: "A jury Monday disappointed the daughter of philanthropist and oilman Alfred Glassell Jr. by ruling that he was neither incapacitated nor unduly influenced when he gave the bulk of his half-billion dollar estate to charity [including the Museum of Fine Arts, Houston] and not to her."
Earlier post here.
Earlier post here.
Another Museum Embezzlement
The Delaware News Journal: "A former Winterthur Museum employee voluntarily turned himself into Delaware State Police ... after a theft investigation revealed he had spent more than $100,000 of the museum's money."
"What makes this theft any different from a typical 'smash and grab' job?"
Art Theft Central's Mark Durney has more on last week's Munch theft in Oslo.
Monday, November 16, 2009
"The moralizing is a bit much"
Jerry Saltz on the New Museum in this week's New York magazine.
More from Saltz here.
Related post here.
More from Saltz here.
Related post here.
Saturday, November 14, 2009
A Couple of Deaccessioning Notes
Via The Deaccessioning Blog. First, it seems Assemblyman Brodsky (of the Brodsky Bill) recently came and talked to the Art Law Society at Cardozo Law School. You can read an account of the visit here. The Deaccessioning Blog's take: "Reading Brodsky's thoughts gives one hope that he's finally realizing the economic severity faced by museums and art institutions, and if the Brodsky bill restricts the use of funds acquired through deaccessioning to only the purchase of new works, museums will face dire financial situations which will force them to lay-off staff in droves, not to mention lower the academic and aesthetic design and implementation of their planned exhibitions."
Second, there is this quote, from a Time magazine report on some deaccessioning at University College London: "To be sure, not everything in a museum's collection is worth keeping, let alone putting on display."
Second, there is this quote, from a Time magazine report on some deaccessioning at University College London: "To be sure, not everything in a museum's collection is worth keeping, let alone putting on display."
Friday, November 13, 2009
More Munch Thievery
From the AP: "Thieves stole a valuable artwork by Edvard Munch from an Oslo art dealer in the latest of a string of art heists targeting work by the famous Norwegian expressionist, police said Friday. One or more thieves stole [the lithograph] from Nyborgs Kunst in downtown Oslo after smashing one of the dealership's windows with a rock."
Thursday, November 12, 2009
"For the latecomers, an outline of the high points thus far"
Artnet News summarizes the New Museum "brouhaha" to date.
Against the "purity police" (UPDATED)
Terrific post by Regina Hackett on the New Museum controversy:
"Purity police chief Tyler Green would prefer that we not see this show. I don't know Dakis Joannou and am not likely to be invited to his house. I do know about his collection and am grateful it will be on view to the public.
"About those ethical problems: I have them with museums featuring trustee collections only when the collections are mediocre. ... Joannou's collection is remarkable. I want to see it and don't care whose board he's on.
"The hip bone's connected to the thigh bone. O, the horror. Trustees know collectors who know artists who know dealers who know museum curators. ...
"There is no rule against museums devoting shows to the work of a single collector. If there were, that rule would be made to be broken. Yes, the rich and powerful are involved in museums. Those for whom this information is a shock and an outrage are too pure (and rigid) to live in the world."
And more from The Art Market Monitor here.
UPDATE: Paddy Johnson has "the sinking feeling this story is turning into a New York Museum Director witch hunt": "I can’t help but feel that the ultimate goal of constructive criticism is getting lost when there are bloggers seeking out scandal we’re not even sure exists." And in the comments, Peter Zimmerman adds: "I don’t see the weight of the ethical charge that Tyler Green is championing. I understand that there are complications with the insider-ness– and yes, that really should have been and should be addressed. Even so, it’s as if Green is acting like a warrior on a vendetta against the NY institution, and I’m not sure where it’s coming from. I just hope that the sensationalism of some of the writing about this subject tones down. And yeah, I’m excited for the show. I’ve wanted to see this collection for years, so in terms of serving a public, NuMu got that one right!"
"Purity police chief Tyler Green would prefer that we not see this show. I don't know Dakis Joannou and am not likely to be invited to his house. I do know about his collection and am grateful it will be on view to the public.
"About those ethical problems: I have them with museums featuring trustee collections only when the collections are mediocre. ... Joannou's collection is remarkable. I want to see it and don't care whose board he's on.
"The hip bone's connected to the thigh bone. O, the horror. Trustees know collectors who know artists who know dealers who know museum curators. ...
"There is no rule against museums devoting shows to the work of a single collector. If there were, that rule would be made to be broken. Yes, the rich and powerful are involved in museums. Those for whom this information is a shock and an outrage are too pure (and rigid) to live in the world."
And more from The Art Market Monitor here.
UPDATE: Paddy Johnson has "the sinking feeling this story is turning into a New York Museum Director witch hunt": "I can’t help but feel that the ultimate goal of constructive criticism is getting lost when there are bloggers seeking out scandal we’re not even sure exists." And in the comments, Peter Zimmerman adds: "I don’t see the weight of the ethical charge that Tyler Green is championing. I understand that there are complications with the insider-ness– and yes, that really should have been and should be addressed. Even so, it’s as if Green is acting like a warrior on a vendetta against the NY institution, and I’m not sure where it’s coming from. I just hope that the sensationalism of some of the writing about this subject tones down. And yeah, I’m excited for the show. I’ve wanted to see this collection for years, so in terms of serving a public, NuMu got that one right!"
Wednesday, November 11, 2009
"Then what might have seemed like whining turned serious"
Jerry Saltz on the controversy surrounding the New Museum's upcoming show of Dakis Joannou's "fabled," incredible" (Saltz's words) collection.
The Art Market Monitor comments here.
Non-profit lawprof Susan Gary says "in my view, the benefits of this show outweigh the conflicts. It sounds like these works of art ... will be of great interest to lovers of modern art." She adds:
"As I read the [New York Times] article, I wondered where the conflict was. Giving the public a chance to view works of art held in a private collection seems like a good idea to me. However, as someone who does not collect art, I had not realized that a museum showing of a private collection will increase the value of those pieces of art. The value of a museum show is of particular importance for modern art, because a show indicates that the pieces are considered 'museum worthy.' So Mr. Joannou's collection will likely increase in value as the result of the show. There is no indication that he plans to sell any of the art anytime soon, but if he does sell some pieces at some point, he may benefit financially from the show."
Or not. As Saltz says, "it is a joke ... to think that Joannou’s collection will increase in value after being shown here. If anything, using three floors of the New Museum will overexpose the art and decrease its value." Put another way, there isn't any doubt that this collection is already "museum worthy."
The Art Market Monitor comments here.
Non-profit lawprof Susan Gary says "in my view, the benefits of this show outweigh the conflicts. It sounds like these works of art ... will be of great interest to lovers of modern art." She adds:
"As I read the [New York Times] article, I wondered where the conflict was. Giving the public a chance to view works of art held in a private collection seems like a good idea to me. However, as someone who does not collect art, I had not realized that a museum showing of a private collection will increase the value of those pieces of art. The value of a museum show is of particular importance for modern art, because a show indicates that the pieces are considered 'museum worthy.' So Mr. Joannou's collection will likely increase in value as the result of the show. There is no indication that he plans to sell any of the art anytime soon, but if he does sell some pieces at some point, he may benefit financially from the show."
Or not. As Saltz says, "it is a joke ... to think that Joannou’s collection will increase in value after being shown here. If anything, using three floors of the New Museum will overexpose the art and decrease its value." Put another way, there isn't any doubt that this collection is already "museum worthy."
"Has such a large portion of any other artist's catalogue been stolen or looted?"
Mark Durney looks at Vermeer's art theft track record.
New Lawyers for Fairey
Report from the New York Times here. According to Sergio Muñoz Sarmiento, in granting the request Judge Hellerstein said he had "never seen anything like this" and described Fairey’s conduct as a "serious transgression" -- but added that (like a lot of people) he wants "this case to be decided on the merits."
"What's Wrong With Charitable Giving"
Pablo Eisenberg attempts an answer in the Wall Street Journal. The Nonprofit Law Prof Blog adds some thoughts.
Longtime readers my remember Eisenberg for his argument that the tax deduction for fractional gifts of art should be abolished.
Longtime readers my remember Eisenberg for his argument that the tax deduction for fractional gifts of art should be abolished.
Saturday, November 07, 2009
"Seung's blind reliance on Dinaburg's alleged statements of the painting's value is not reasonable as a matter of law"
I've been meaning to mention the recent NY state court decision dismissing a claim by a collector who bought a Julian Schnabel painting for $380,000 from a dealer who allegedly said it was worth "at least $500,000" when its true market value "was no more than $110,000." (Among other things, it had sold "months earlier" at Philips for $156,000 (against an estimate of $60-80,000).)
The decision proceeded on basic caveat emptor grounds. "A party is not justified in relying on any alleged misrepresentations if the facts were not peculiarly within the other party's knowledge and the party had the means to discover the truth by the exercise of ordinary intelligence." "Seung does not allege that she made any effort to ascertain the value of the painting prior to its sale." "Seung alleges nothing more than a relationship of art buyer and art seller, which does not rise to the level of a special realtionship [required for a negligent misrepresentation claim]." "Seung could not have reasonably relied on statements regarding the painting's value when she made no effort to independently ascertain its value."
Greg Allen comments: "if Seung's case is meaningful, it's only as a reminder to collectors to do their own damn homework; the NY Supreme Court determined that art advisors and even dealers are not 'experts,' and their opinions are just sales patter which constitutes, at best, 'non-actionable 'puffery'...on which a sophisticated commercial entity could not reasonably rely."
The decision proceeded on basic caveat emptor grounds. "A party is not justified in relying on any alleged misrepresentations if the facts were not peculiarly within the other party's knowledge and the party had the means to discover the truth by the exercise of ordinary intelligence." "Seung does not allege that she made any effort to ascertain the value of the painting prior to its sale." "Seung alleges nothing more than a relationship of art buyer and art seller, which does not rise to the level of a special realtionship [required for a negligent misrepresentation claim]." "Seung could not have reasonably relied on statements regarding the painting's value when she made no effort to independently ascertain its value."
Greg Allen comments: "if Seung's case is meaningful, it's only as a reminder to collectors to do their own damn homework; the NY Supreme Court determined that art advisors and even dealers are not 'experts,' and their opinions are just sales patter which constitutes, at best, 'non-actionable 'puffery'...on which a sophisticated commercial entity could not reasonably rely."
"People disagree vigorously over whether a photo of a copyrighted work is a derivative work. The court refused to resolve the issue"
Rebecca Tushnet: "Seventh Circuit rejects Gracen, tries again."
The decision is here. For background, see here.
The decision is here. For background, see here.
"There is no logical connection between Sotheby's failure to disclose a security interest and any actual or potential injury to … Minor"
Though it comes in the fairly narrow context of a motion for leave to amend his counterclaims, there is some language in a recent decision in the lawsuit that would seem to be pretty devastating to Halsey Minor's overall case against Sotheby's. First, the court rejected the idea that the alleged non-disclosure could have injured Minor in any way:
"Minor does not allege that ... the paintings were auctioned at an inflated price because of the failure to disclose the security interest. To the contrary, because the paintings were sold [to him] at auction, Minor set the price for the paintings. . . . As explained above, the allegations in the proposed counterclaim do not support an inference of any connection between Sotheby's conduct and any actual or potential damage to … Minor… [B]ecause Minor pleads no facts to support an inference that Sotheby's security interest affected the value of the paintings, he fails to identify how Sotheby's failure to disclose this interest was material."
The court also rejected the notion that Sotheby's had fiduciary duties to Minor in connection with the sale:
"In arms length commercial transactions, 'no relation of confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent extraordinary circumstances'" (quoting DeBlasion v. Merrill Lynch & Co., Inc., 2009 WL 2242605).
I believe Sotheby's own motion for summary judgment is still pending.
More Minor legal news here.
"Minor does not allege that ... the paintings were auctioned at an inflated price because of the failure to disclose the security interest. To the contrary, because the paintings were sold [to him] at auction, Minor set the price for the paintings. . . . As explained above, the allegations in the proposed counterclaim do not support an inference of any connection between Sotheby's conduct and any actual or potential damage to … Minor… [B]ecause Minor pleads no facts to support an inference that Sotheby's security interest affected the value of the paintings, he fails to identify how Sotheby's failure to disclose this interest was material."
The court also rejected the notion that Sotheby's had fiduciary duties to Minor in connection with the sale:
"In arms length commercial transactions, 'no relation of confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent extraordinary circumstances'" (quoting DeBlasion v. Merrill Lynch & Co., Inc., 2009 WL 2242605).
I believe Sotheby's own motion for summary judgment is still pending.
More Minor legal news here.
Thursday, November 05, 2009
More on Moore
Rebecca Tushnet has a good summary of the district court decision (mentioned earlier here) in favor of Daniel Moore in his lawsuit with the University of Alabama. She says "the Tiger Woods case is so on point that quoting big chunks of it got the court basically where it needed to go."
Meanwhile, the Tuscaloosa News says "UA needs to walk away from Moore lawsuit."
8-0 Alabama hosts No. 9 LSU this weekend.
Meanwhile, the Tuscaloosa News says "UA needs to walk away from Moore lawsuit."
8-0 Alabama hosts No. 9 LSU this weekend.
"How can cultural heritage institutions legally use the Internet to improve public access to the rich collections they hold?"
I've linked on a number of occasions to Peter Hirtle's thoughtful commentary on the Brodsky bill and related issues. Peter's now co-authored a new book entitled Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, which I'm sure is well worth checking out. Read more about it (and download a PDF copy if you want) here.
"School, sculptor in battle over art"
From the Detroit Free Press: "A renowned sculptor and Holocaust survivor who spent the last 37 years as artist-in-residence at Orchard Lake St. Mary's prep school is engaged in a bitter feud with school officials over who owns more than $2 million in artwork at the campus. Marian Owczarski, 76, said in a lawsuit filed Oct. 29 in Oakland County Circuit Court that many of the 1,800 pieces of sculpture, paintings, metalwork and stained glass on display at the campus' Galeria are from his private collection."
Tuesday, November 03, 2009
Moore to Come
In my initial post on the University of Alabama's lawsuit against sports artist Daniel Moore, I said: "I make Moore a two-touchdown favorite to win." Well, three years (and several judges) later, Moore has won at the district court level. In granting his motion for summary judgment, however, the court made it very clear that "this court is a way station on the route to appellate court(s)" and said it would certify its rulings for immediate appeal under Rule 54(b).
Mo(o)re from the Tuscaloosa News here.
Mo(o)re from the Tuscaloosa News here.
Monday, November 02, 2009
Deaccessioning Quote of the Day
From Crispin Sartwell (reacting to this piece by Peter Brooks in the NYRB):
"for example, the metropolitan museum says that it possesses 5 million objects. now how many of these are on display? 20,000? so in what sense is the work 'viewable'? it's like - correction: it is - a massive bunker of art, a miser with a stashed hoard of useless gold. the point isn't to display the art; it's to segregate it or insulate it, to assert its priceless uniqueness by, um, burying it forever etc."
"for example, the metropolitan museum says that it possesses 5 million objects. now how many of these are on display? 20,000? so in what sense is the work 'viewable'? it's like - correction: it is - a massive bunker of art, a miser with a stashed hoard of useless gold. the point isn't to display the art; it's to segregate it or insulate it, to assert its priceless uniqueness by, um, burying it forever etc."
"We can all be fooled, and this man fooled me"
"The FBI is investigating allegations that William Toye, 78, and his wife Beryl Ann, 68, have been selling forged paintings to unsuspecting art collectors and dealers since the 1970s."
The investigation concerns the work of outsider artist Clementine Hunter.
The investigation concerns the work of outsider artist Clementine Hunter.
"Heiress fights dad's bequest to the arts"
From the UPI: "The daughter of a late Texas oil pioneer claims lawyers coerced her father into cutting her share of his estate and convinced him to give it to charity instead. Curry Glassell ... claims in a lawsuit her father, Transcontinental Gas Pipe Line Corp. founder Alfred C. Glassell -- who died at age 95 in 2008 -- was sick and possibly demented when he changed his will at age 87 to give more to Houston arts. She alleges lawyers for the Museum of Fine Arts, Houston, pushed him to make the change."
More from the Houston Chronicle here.
More from the Houston Chronicle here.
Fairey's New Lawyers
Shepard Fairey has a new legal team in place for his lawsuit with the AP. (The change was occasioned by this.)
Wednesday, October 28, 2009
Bailed Out Art
One of the strange features of the strict anti-deaccessioning position, it seems to me, is the whole notion of the "public trust." How is it, exactly, that works owned by museums comes to be "held in the public trust" such that they can never be sold (except to buy other art)? What is the mechanism? It is sometimes suggested that this is a function of the favorable tax treatment museums receive: because museums are exempt from property and income taxes, and donors get tax deductions for contributing to them, the "public" therefore is the true owner of the art. I've never really understood that argument. There are lots of other entities that get the same tax benefits -- churches. private schools and universities, hospitals, etc. Does the public own the MRI machines at the hospital? If a university decides to shut down the sociology department, should we step in and say, "Hey, wait a minute. That department was held in trust for us. You can't just get rid of it like that"? Does every asset ostensibly held by every non-profit really belong to us? And if not, what makes art different? How does it come to be "held in trust" when other, similarly-owned assets are not?
But if tax benefits are not enough, what about a bailout? The New York Times ran a little piece earlier this week that began:
"Many of the world’s biggest banks — and biggest recipients of government bailouts — have some of the largest collections of art. Some of the works, including abstract pieces and old masters, are hanging in hallways or boardrooms. But much of it is packed away in storage. The art owned by financial institutions should get out more — at the least to give the taxpayers, who have been so generous with the financial sector, an aesthetic return."
But if tax benefits are not enough, what about a bailout? The New York Times ran a little piece earlier this week that began:
"Many of the world’s biggest banks — and biggest recipients of government bailouts — have some of the largest collections of art. Some of the works, including abstract pieces and old masters, are hanging in hallways or boardrooms. But much of it is packed away in storage. The art owned by financial institutions should get out more — at the least to give the taxpayers, who have been so generous with the financial sector, an aesthetic return."
Here's the Rub
Lee Rosenbaum asks former Cleveland Museum director Timothy Rub about the decision to use (with court permission) certain acquisition-specific funds to help complete the museum's expansion project. He says:
"There are legal means that have been in place for a long time to ask courts to determine whether or not funds that have been contributed for one purpose can be utilized ... for another purpose. There are legal mechanisms and a significant body of law that leads to this.
"Secondly, I should say that the board of the Cleveland Museum of Art is a tremendously responsible and resourceful group of people who are fiduciaries for the institution. And it's their responsibility to make thoughtful and prudent fiscal decisions on behalf of the institution. I think the trustees discharged their responsibilities extremely well. I really do."
"There are legal means that have been in place for a long time to ask courts to determine whether or not funds that have been contributed for one purpose can be utilized ... for another purpose. There are legal mechanisms and a significant body of law that leads to this.
"Secondly, I should say that the board of the Cleveland Museum of Art is a tremendously responsible and resourceful group of people who are fiduciaries for the institution. And it's their responsibility to make thoughtful and prudent fiscal decisions on behalf of the institution. I think the trustees discharged their responsibilities extremely well. I really do."
"I don’t regard copyright as a property right, but rather as a government program, a social program"
An interesting conversation between Clancco's Sergio Muñoz Sarmiento and copyright scholar William Patry.
Tuesday, October 27, 2009
More on the Rose Lawsuit
I mentioned, after the probate court hearing earlier this month, that it was a little unclear where things stood in the Rose Museum lawsuit. It seemed, at the time, that it was being reported as something of a victory for the plaintiffs. ARTINFO.com, for example, headlined their piece: "Judge Lets Rose Museum Suit Stand."
But now comes a story in the Brandeis Justice that suggests that the only part of the suit the judge let stand is the part that Brandeis agreed could stand -- i.e., the plaintiffs could sue over their own donations to the museum, but they have no standing to challenge the university's decision to sell art generally, or to close the museum. The university's lawyer says "the case is now limited to the plaintiffs' ability to control their own donations or those of their ancestors to the Rose. 'The court ruled that the plaintiffs have no right and standing to represent any donors other than themselves or their ancestors, and that is all that's left now for the plaintiffs,' he said." He added that "Brandeis never had any intention of selling any artwork donated by any of the plaintiffs or the estates that they represent."
But now comes a story in the Brandeis Justice that suggests that the only part of the suit the judge let stand is the part that Brandeis agreed could stand -- i.e., the plaintiffs could sue over their own donations to the museum, but they have no standing to challenge the university's decision to sell art generally, or to close the museum. The university's lawyer says "the case is now limited to the plaintiffs' ability to control their own donations or those of their ancestors to the Rose. 'The court ruled that the plaintiffs have no right and standing to represent any donors other than themselves or their ancestors, and that is all that's left now for the plaintiffs,' he said." He added that "Brandeis never had any intention of selling any artwork donated by any of the plaintiffs or the estates that they represent."
Friday, October 23, 2009
"Brandeis Wasn't Wrong"
An interesting piece inside Inside Higher Ed by former Northwestern dean Rudolph Weingartner, who describes himself as "a lifetime 'consumer' and supporter of the arts." He acknowledges "a significant role for art museums on higher education campuses," but says:
"[W]ith quite special exceptions, I see a very small pedagogic function for colleges and universities to own works of art, especially given the current cost and value of so many of them. ... To be sure, the provisions of deeds of gift must be scrupulously observed; but assuming that to be the case, let them sell their works of art if the funds thus gained will better serve the institutions’ educational mission."
Referring to the "task force formed by arts groups to figure out ways to avoid the next Brandeis," he also notes that such studies tend to turn into preaching-to-the-converted affairs:
"Members of the task force, make sure, ... that you are not just talking to yourselves. You are looking for ways to relate A to B; there must thus be strong representation from both poles. As announced, the organizations participating in the task force are mostly from the Category A: the art museum community. I strongly recommend that it also include not only representation from the art history and studio art departments, but knowledgeable people who have thoughts about how to involve art museums in educating students who are not primarily concerned with the arts."
"[W]ith quite special exceptions, I see a very small pedagogic function for colleges and universities to own works of art, especially given the current cost and value of so many of them. ... To be sure, the provisions of deeds of gift must be scrupulously observed; but assuming that to be the case, let them sell their works of art if the funds thus gained will better serve the institutions’ educational mission."
Referring to the "task force formed by arts groups to figure out ways to avoid the next Brandeis," he also notes that such studies tend to turn into preaching-to-the-converted affairs:
"Members of the task force, make sure, ... that you are not just talking to yourselves. You are looking for ways to relate A to B; there must thus be strong representation from both poles. As announced, the organizations participating in the task force are mostly from the Category A: the art museum community. I strongly recommend that it also include not only representation from the art history and studio art departments, but knowledgeable people who have thoughts about how to involve art museums in educating students who are not primarily concerned with the arts."
Thursday, October 22, 2009
"Didn't Sotheby's waive its right to whine about the hassles of disclosure when it went public?"
ContractsProf Blogger Jeremy Telman on a report that Sotheby's is refusing to provide government regulators with information on bonuses paid to its executives on the ground that Christie's might use the info to steal the executives away. [via]
"There was an opportunity to make collecting art something that everyone can do"
Online art gallery 20x200 has raised more than $825,000 in venture financing. New York Times story here.
"The issue highlights for me the futility of the entire regulatory process"
Peter Hirtle on the latest on deaccessioning from the NY Board of Regents:
"The Board of Regents and Education Department should stop trying to micromanage cultural institutions in the state and instead simply require that the governing boards of those institutions operate according to best professional practice and with the mission of the institution in mind."
"The Board of Regents and Education Department should stop trying to micromanage cultural institutions in the state and instead simply require that the governing boards of those institutions operate according to best professional practice and with the mission of the institution in mind."
Wednesday, October 21, 2009
"To 'Warholize' someone else's photo ... doesn't fall within an existing category of fair use"
Prompted by the latest in the Shepard Fairey-AP lawsuit, Columbia lawprof Tim Wu presents Fair Use 101 over at slate.com. It's useful overview, but, as I've said before, I don't think anyone has any idea whether Fairey's poster was a fair use. Take a look at Wu's piece and see if you disagree.
"The idea that I would steal from myself is the most ridiculous thing I’ve ever heard"
The LA Times: "Richard L. Weisman, the noted art collector who made news recently when he decided to forgo a multimillion-dollar insurance policy for stolen art, had some critical words for the LAPD detectives investigating his case. 'Maybe if they would do their job … and spent some time looking for the art instead of being accusatory of the person who had it stolen, they might actually find it,' Weisman said."
"Fairey now seems to have committed himself to a version of events that could be taken to suggest he didn't spend much time on the poster"
Richard Lacayo on the latest twist in the Shepard Fairey-AP lawsuit:
"By claiming to have forgotten at first which photo he had worked from, did Fairey undercut his case in his own suit against AP? Fairey argues that he transformed the original image sufficiently to qualify for fair use protection .... But if the transformative process didn't leave enough of an impression on him for him to recall what picture he was working from, how transformative could it be? How long did it actually take? A few minutes? A few days? Surely if you work with a photo for a few days you remember it. But if the changes you made to the image only took a few easily forgotten minutes, or even an hour, then does that really qualify as a transformation?"
"By claiming to have forgotten at first which photo he had worked from, did Fairey undercut his case in his own suit against AP? Fairey argues that he transformed the original image sufficiently to qualify for fair use protection .... But if the transformative process didn't leave enough of an impression on him for him to recall what picture he was working from, how transformative could it be? How long did it actually take? A few minutes? A few days? Surely if you work with a photo for a few days you remember it. But if the changes you made to the image only took a few easily forgotten minutes, or even an hour, then does that really qualify as a transformation?"
Putting the public back in "public trust"
An interesting approach to deaccessioning at University College London.
"Lawsuit against sports artist nears end"
Adam (Not Pacman) Jones of the Tuscaloosa News on the University of Alabama’s lawsuit against sports artist Daniel Moore.
File Under "Careful-What-You-Wish-For"
Lee Rosenbaum complains that revised (temporary) anti-deaccessioning rules from the NY Board of Regents are too restrictive.
Tuesday, October 20, 2009
The Fairey Latest
Daryl Lang of Photo District News has a good roundup of Shepard Fairey-AP lawsuit developments. The AP says Fairey "has now concocted another story." Fairey says the AP is "diverting the debate from the central question in this case, which is whether he transformed the Mannie Garcia image into a work of art, which he has."
"Is the corpse's former intent all we care about?"
I missed this post on the Barnes by Peter Friedman last week:
"Barnes’ original bequest might have forbidden the move, but the result of his restriction, 60 years after his death, was the closing off of a multi-billion dollar collection of art to the wider public, strife between the Foundation and its neighbors, and a threat to the very existence of the Foundation itself. Isn’t it at least arguable that satisfying much of Barnes’ obvious intent — precisely how the art is housed and shown — while making it accessible to the world in a location where it is welcome is a reasonable effort to accommodate what he would have wanted? And isn’t it appropriate that we have institutions like courts to decide [between] that reasonable argument [and] the opposing one (Barnes stated in his bequest the collection should never be moved, so it should never be moved, even if there are circumstances now that he did not anticipate and we could not predict his reaction to)?"
"Barnes’ original bequest might have forbidden the move, but the result of his restriction, 60 years after his death, was the closing off of a multi-billion dollar collection of art to the wider public, strife between the Foundation and its neighbors, and a threat to the very existence of the Foundation itself. Isn’t it at least arguable that satisfying much of Barnes’ obvious intent — precisely how the art is housed and shown — while making it accessible to the world in a location where it is welcome is a reasonable effort to accommodate what he would have wanted? And isn’t it appropriate that we have institutions like courts to decide [between] that reasonable argument [and] the opposing one (Barnes stated in his bequest the collection should never be moved, so it should never be moved, even if there are circumstances now that he did not anticipate and we could not predict his reaction to)?"
Saturday, October 17, 2009
AP-Fairey News (UPDATED 2X)
The New York Times: "Lawyers for the visual artist who created the famous 'Hope' poster of Barack Obama have acknowledged that he lied about which photograph he based the poster on and that he fabricated evidence in an effort to bolster his lawsuit against The Associated Press, according to a statement released by The A.P. on Friday night" (emphasis added).
The AP's general counsel also says "Fairey’s counsel informed the AP that they intended to seek the Court's permission to withdraw as counsel for Fairey."
Remember that in their answer to Fairey's complaint, the AP argued that he "deliberately misrepresent[ed] the source of the Infringing Works in [the] Complaint" in a "misguided effort to argue that Fairey made more substantial changes to the photograph ... than he actually did." Related post here.
As Bruce Boyden said way back in February, when this issue first came up, "it just plain looks bad to have a misstatement like this in the complaint."
UPDATE: Boyden reacts here: "It looks even worse if you destroy evidence to cover it up. And it looks even worse than that if you manufacture evidence. All for very little benefit. Fairey’s behavior here reminds me of insider trading cases where some billionaire risks prison in order to avoid a loss of $20,000. It’s also too bad for us copyright professors who were interested in the doctrinal issues here. I can’t see this case going much farther, and even if it does, the chances we’ll get a clean holding on fair use, copyrightability, or substantial similarity seem thin."
Ann Althouse says: "The copyright issue itself should remain the same, and it's an important one indeed. It's a damned shame that the banner for expansive fair use is being carried by someone who was dishonest and who tried to play the legal system. Why is he admitting his deception now? Presumably, he knew the manipulations would come to light one way or the other, and it was a strategic decision to reveal it this way."
Jim Johnson: "I still think that Fairey - without the lies - might well have won the fair use case .... After all, it was not even clear that [the AP] controlled rights to the relevant image, since it was taken by a free-lance photographer. Maybe Fairey thought some bluster might keep the whole mess out of court. Who knows? The lesson? Don't try this at home. I suspect, and HOPE, that the judge in this case will throw the book at Fairey for his shenanigans."
Daryl Lang of Photo District News: "Fairey’s admission resolves one of the strangest elements in the suit. Despite obvious evidence to the contrary, Fairey repeatedly cited the wrong AP photo as the one he used ...."
UPDATE 2: Sergio Muñoz Sarmiento: "Aside from the fact that he only strengthened the image of artists as clowns and buffoons in the eyes of judges and lawyers, Fairey’s recent actions could earn him serious consequences."
The AP's general counsel also says "Fairey’s counsel informed the AP that they intended to seek the Court's permission to withdraw as counsel for Fairey."
Remember that in their answer to Fairey's complaint, the AP argued that he "deliberately misrepresent[ed] the source of the Infringing Works in [the] Complaint" in a "misguided effort to argue that Fairey made more substantial changes to the photograph ... than he actually did." Related post here.
As Bruce Boyden said way back in February, when this issue first came up, "it just plain looks bad to have a misstatement like this in the complaint."
UPDATE: Boyden reacts here: "It looks even worse if you destroy evidence to cover it up. And it looks even worse than that if you manufacture evidence. All for very little benefit. Fairey’s behavior here reminds me of insider trading cases where some billionaire risks prison in order to avoid a loss of $20,000. It’s also too bad for us copyright professors who were interested in the doctrinal issues here. I can’t see this case going much farther, and even if it does, the chances we’ll get a clean holding on fair use, copyrightability, or substantial similarity seem thin."
Ann Althouse says: "The copyright issue itself should remain the same, and it's an important one indeed. It's a damned shame that the banner for expansive fair use is being carried by someone who was dishonest and who tried to play the legal system. Why is he admitting his deception now? Presumably, he knew the manipulations would come to light one way or the other, and it was a strategic decision to reveal it this way."
Jim Johnson: "I still think that Fairey - without the lies - might well have won the fair use case .... After all, it was not even clear that [the AP] controlled rights to the relevant image, since it was taken by a free-lance photographer. Maybe Fairey thought some bluster might keep the whole mess out of court. Who knows? The lesson? Don't try this at home. I suspect, and HOPE, that the judge in this case will throw the book at Fairey for his shenanigans."
Daryl Lang of Photo District News: "Fairey’s admission resolves one of the strangest elements in the suit. Despite obvious evidence to the contrary, Fairey repeatedly cited the wrong AP photo as the one he used ...."
UPDATE 2: Sergio Muñoz Sarmiento: "Aside from the fact that he only strengthened the image of artists as clowns and buffoons in the eyes of judges and lawyers, Fairey’s recent actions could earn him serious consequences."
Thursday, October 15, 2009
"However attorneys representing the two sides disagree on the details"
Still not clear exactly what happened at yesterday's hearing in the Rose lawsuit. Greg Cook is on the case.
Wednesday, October 14, 2009
You mean deaccessioned works don't go in the shredder?
Lee Rosenbaum has another horror story involving a deaccessioned work, this one sold by the National Academy in 1994.
"These guys are still fighting!"
Rebecca Tushnet continues to do heroic work tracking the Renoir Wars. The latest: plaintiff's application for $340,000 in legal fees was denied. Says Tushnet: "Any bets on whether plaintiff will appeal? Any estimates on total cost of this litigation to the parties--merely an order of magnitude greater than the damages, or two orders?"
NPR on Finding Frida Kahlo
Paddy Johnson gives us the Cliffs Notes version of a recent KCRW piece on what she calls "the so-called new Frida-Kahlos." Her bottom line: "I suppose my deepest annoyance with this story is that it embodies the kind of false myths that create art world controversy where there is none. Resting one’s case on the fallacy of experts 'who haven’t seen the work in person' isn’t an argument for its legitimacy. It’s an argument meant to discredit the expert. But what kind of specialist flies to examine obviously fake documents? It’s like accusing an Anne Frank expert of malpractice for failing to fly to Germany to examine the long lost chapter about her iPod. There’s no point."
"The 'hottest' online art gallery in the world"
The Independent on the new Interpol stolen art database.
"The wilful Dr. Barnes has only himself to blame"
Witold Rybczynski in Slate.com:
"He had an excellent eye and a sharp mind, but unlike other private collectors who founded their own museums—Isabella Stewart Gardner, J. P. Morgan, Duncan Phillips—he was not a good institution builder. As a result, only 50 years after his death, the Barnes stood at the brink of insolvency. It was saved only by the intervention of the Philadelphia establishment ..., on the understanding that the collection, whose worth is estimated at more than $6 billion, would be moved to new premises in the city's museum district."
Philadelphia Inquirer culture reporter Stephan Salisbury told a similar story last week -- the Barnes was saved, not stolen.
"He had an excellent eye and a sharp mind, but unlike other private collectors who founded their own museums—Isabella Stewart Gardner, J. P. Morgan, Duncan Phillips—he was not a good institution builder. As a result, only 50 years after his death, the Barnes stood at the brink of insolvency. It was saved only by the intervention of the Philadelphia establishment ..., on the understanding that the collection, whose worth is estimated at more than $6 billion, would be moved to new premises in the city's museum district."
Philadelphia Inquirer culture reporter Stephan Salisbury told a similar story last week -- the Barnes was saved, not stolen.
Rose Lawsuit Update
A cryptic little report in the Boston Globe on yesterday's hearing on Brandeis's motion to dismiss the Rose lawsuit. The headline is "Brandeis agrees to delay sale of artwork," and the article notes that the motion was denied -- but then it goes on to say that "the university agreed it would not sell any of the artwork donated by the plaintiffs" (as opposed to all artwork at the museum) and "to give the attorney general a 30-day notice and an opportunity for review if it decides to sell any artwork donated by others" (which is something it would probably want to do in any event).
Warhol Theft Update
A development in last month's high-profile Los Angeles Warhol theft. The Seattle Times reports that the collector has canceled his $25 million insurance claim for the 10 pieces. He "realizes some people might view it as strange for him to walk away from so much money. But, he says, he simply couldn't stand the thought of insurance investigators poring through his personal records and interrogating his family and friends before he stood any chance of collecting."
Monday, October 12, 2009
"There have been untruthful and inconsistent statements presented to us by Mr. Amadio"
The Boston Globe has the latest twist in the (alleged) Pebble Beach art theft: "Investigators, who previously identified the alleged victims, Dr. Ralph Kennaugh and Angelo Benjamin Amadio, as suspects in the theft are considering the possibility the doctor was a victim of Amadio, a spokesman for the Monterey County Sheriff’s Office said yesterday."
The Art Market Monitor says that seems "unlikely": "Given what is known about the art, the theft and the behavior of the victims, it would seem logical to conclude that this was a fairly straightforward burglary that gained dimension in the telling and re-telling. We’re left with a stalemate as a face-saving measure."
Mark Durney sees a teachable moment.
The Art Market Monitor says that seems "unlikely": "Given what is known about the art, the theft and the behavior of the victims, it would seem logical to conclude that this was a fairly straightforward burglary that gained dimension in the telling and re-telling. We’re left with a stalemate as a face-saving measure."
Mark Durney sees a teachable moment.
"This is a tremendous thing the community has done tonight"
The Blanden Memorial Art Museum deaccessioning went forward this weekend. More than 300 pieces were sold. Judith Dobrzynski summarized the surrounding controversy.
Thursday, October 08, 2009
Bonfire of the Vanity
As a follow up to Peter Friedman's excellent response below, here's a question for the folks who are outrageously outraged by the move of the Barnes (and I hasten to add that I thought the Barnes should stay put):
What if Barnes's Will had provided that the works were to be exhibited in Merion for exactly 50 years -- and then were to be burned in a big bonfire?
Should we honor donor intent in that case?
Or can we agree that sometimes the public interest trumps the donor's intent?
(The Art Market Monitor has been asking a version of this question for some time now.)
What if Barnes's Will had provided that the works were to be exhibited in Merion for exactly 50 years -- and then were to be burned in a big bonfire?
Should we honor donor intent in that case?
Or can we agree that sometimes the public interest trumps the donor's intent?
(The Art Market Monitor has been asking a version of this question for some time now.)
"How confident are you that Barnes intended his collection to stay where it was come what may, hell or highwater?"
In the comments to a post by Peter Friedman discussed here, Barnes-move-protester -- and one of the main talking heads in The Art of the Steal -- Nick Tinari says Friedman's "view of the law is naive at best." Friedman responds:
"I guess you want an utterly rigid interpretation, entirely void of context, of words written by a guy who died 60 years ago to control what’s to be done with several billion dollars worth of art even if that means serious restrictions on access to the art.
"Me? I’ll take a pragmatic solution that preserves a heck of a lot of Barnes’ stated desires, takes into account the interests of art lovers, the public, the neighbors of the Barnes Foundation, and the fact that it really isn’t entirely clear what the guy would’ve intended under present circumstances.
"And did I mention that the guy has maintained almost exclusive control from the grave of several billion dollars worth of the world’s culture that he’d keep people away from during his life by denying their requests to see the art with letters signed by his dog?"
"I guess you want an utterly rigid interpretation, entirely void of context, of words written by a guy who died 60 years ago to control what’s to be done with several billion dollars worth of art even if that means serious restrictions on access to the art.
"Me? I’ll take a pragmatic solution that preserves a heck of a lot of Barnes’ stated desires, takes into account the interests of art lovers, the public, the neighbors of the Barnes Foundation, and the fact that it really isn’t entirely clear what the guy would’ve intended under present circumstances.
"And did I mention that the guy has maintained almost exclusive control from the grave of several billion dollars worth of the world’s culture that he’d keep people away from during his life by denying their requests to see the art with letters signed by his dog?"
"Meet the new Barnes Foundation museum, just like the old Barnes"
The Philadelphia Inquirer editorial board is thrilled with the new Barnes design:
"In a substantially larger building ..., the paintings of Renoir, Cézanne, Matisse, and other masters will be accessible to millions of visitors. That would be impossible at the Barnes' leafy suburban location, where visitors were limited by court orders resulting from battles with neighbors over traffic concerns.
"Since it was the Barnes' isolation that helped trigger money woes that led museum leaders to explore moving, the city location should bode well for the museum as a going concern.
" . . . At the same time, there is no mistaking the aim of architects Tod Williams and Billie Tsien to re-create Albert C. Barnes' former mansion. That's in keeping with pledges to preserve the unique artwork displays dictated by Barnes . . . .
"Will the design silence critics of the move, who objected to a Montgomery County judge's ruling in favor of a more flexible interpretation of Barnes' bequest? That's probably asking too much. But the plan's obvious respect for Barnes' legacy - for his idiosyncratic view of how art should be displayed and appreciated - should reassure supporters of the move."
"In a substantially larger building ..., the paintings of Renoir, Cézanne, Matisse, and other masters will be accessible to millions of visitors. That would be impossible at the Barnes' leafy suburban location, where visitors were limited by court orders resulting from battles with neighbors over traffic concerns.
"Since it was the Barnes' isolation that helped trigger money woes that led museum leaders to explore moving, the city location should bode well for the museum as a going concern.
" . . . At the same time, there is no mistaking the aim of architects Tod Williams and Billie Tsien to re-create Albert C. Barnes' former mansion. That's in keeping with pledges to preserve the unique artwork displays dictated by Barnes . . . .
"Will the design silence critics of the move, who objected to a Montgomery County judge's ruling in favor of a more flexible interpretation of Barnes' bequest? That's probably asking too much. But the plan's obvious respect for Barnes' legacy - for his idiosyncratic view of how art should be displayed and appreciated - should reassure supporters of the move."
Astor Guilty Verdict
Brooke Astor's son was convicted of stealing from her this afternoon. NYT story here. He was found guilty of 14 of the 16 counts against him. One of the two he was not found guilty of was a grand larceny charge stemming from the sale of a Childe Hassam painting.
Wednesday, October 07, 2009
Cleveland Wins
The probate court has granted the Cleveland Museum of Art's request for deviation from the terms of four funds designated for the purchase of art.
This should come as no surprise. For background, see here and here.
This should come as no surprise. For background, see here and here.
Orphan Works Program
The Art Law and Copyright and Literary Property Committees of the New York City Bar Association, together with Columbia Law School's Kernochan Center for Law, Media and the Arts, are presenting a program entitled "Lost and Found: A Practical Look at Orphan Works," Oct. 20, 6-8pm, at the Bar Association, 42 West 44th Street. Details here.
"This whole thing stinks"
The New York Times: "The sheriff’s office of Monterey County, Calif., said that a reported theft of millions of dollars’ worth of artworks from a home in Pebble Beach appears to be a scam perpetrated by the alleged victims."
You can watch the sheriff's press conference here.
Greg Allen asks "did I call it or what?" (He called it.)
You can watch the sheriff's press conference here.
Greg Allen asks "did I call it or what?" (He called it.)
"The forces leading to [the move] are far more human, contradictory, and mundane than any Manichean conspiracy theory would have it"
The Philadelphia Inquirer's excellent Stephan Salisbury has a piece in today's paper taking on the Barnes conspiracy theorists:
"Ultimately, it was Lincoln [University]'s control, not greedy city elites, that led to the fateful 1990 decision to install prominent attorney Richard Glanton as foundation president, which launched the series of events leading to the Parkway move. . . .
"By the late 1990s Glanton was out and the foundation was bleeding money. The trust indenture barred most investments; Glanton's litigious excesses took a spectacular toll on the dwindling endowment. The Barnes ... cast a wide net seeking solutions.
"Beginning in the Glanton era, when financial issues began to press sharply, casual talk of a possible move to Philadelphia ... was discussed by many interested parties. In early 2001, [Raymond] Perelman, then chair of the [Philadelphia] art museum, openly speculated about it in the New York Times and The Inquirer, as did former Mayor Ed Rendell - now Pennsylvania's governor - and others.
"Ultimately, it was Lincoln [University]'s control, not greedy city elites, that led to the fateful 1990 decision to install prominent attorney Richard Glanton as foundation president, which launched the series of events leading to the Parkway move. . . .
"By the late 1990s Glanton was out and the foundation was bleeding money. The trust indenture barred most investments; Glanton's litigious excesses took a spectacular toll on the dwindling endowment. The Barnes ... cast a wide net seeking solutions.
"Beginning in the Glanton era, when financial issues began to press sharply, casual talk of a possible move to Philadelphia ... was discussed by many interested parties. In early 2001, [Raymond] Perelman, then chair of the [Philadelphia] art museum, openly speculated about it in the New York Times and The Inquirer, as did former Mayor Ed Rendell - now Pennsylvania's governor - and others.
"That political and cultural leaders welcomed the notion of the Barnes in Philadelphia was no secret at all, and three major foundations, the Pew Charitable Trusts and the Lenfest and Annenberg foundations, ultimately devised a plan to make it happen. Their proposal was announced in September 2002.
"Virtually simultaneously, the state legislature authorized use of up to $107 million in capital funds for move-related construction - if the state money ever became available, and if state lawmakers decided to spend any of it.
"At the time of the authorization, no Barnes move had been approved by the courts. But then again, no money was appropriated. The authorization/appropriation distinction seems lost on those whose criticism of supposedly secret funding has supplied grist for the conspiracy mill.
"Yet it was Barnes himself who set the highly restrictive terms of the trust indenture; who incorporated no penalties for the foundation should trustees violate the indenture's terms; who failed to resolve tension between a supposedly public facility and exclusionary admissions practices; who staffed the board and foundation with apostles to ensure his will in perpetuity.
"Instead, for nearly 20 years the Barnes has been the subject of rancorous dispute and litigation, leading to what some would call farce and others, tragedy. No conspiracy has been necessary."
Tuesday, October 06, 2009
"The architecture is that good" (UPDATED)
More from Philadelphia Inquirer architecture critic Inga Saffron on the new Barnes design:
"What has happened to the Barnes is a tragedy, and as with all tragedies, many deserve blame: the neighbors, Lower Merion Township, Lincoln University, the Barnes' management under Richard Glanton. Together this unlikely cabal drove the Barnes into insolvency, necessitating a rescue from Philadelphia's philanthropists.
"What has happened to the Barnes is a tragedy, and as with all tragedies, many deserve blame: the neighbors, Lower Merion Township, Lincoln University, the Barnes' management under Richard Glanton. Together this unlikely cabal drove the Barnes into insolvency, necessitating a rescue from Philadelphia's philanthropists.
"Is it any wonder that, when those donors agreed to bail out the Barnes, for the better part of $200 million, they demanded to call the shots?
"Shipping the entire collection to Philadelphia wasn't the only way to save the Barnes. But it was the way chosen by the people paying the freight. The public pay-off is that four times as many people - some 250,000 visitors a year are projected - will see the art because the gallery's hours will no longer be restricted.
"To their credit, the donors - the Pew, Annenberg and Lenfest foundations - recognize that the Barnes is greater than the sum of its paintings. The collection derives its power from the unusual, some might say nutty, system that Barnes devised for hanging paintings in the '20s. That arrangement will be replicated exactly in the Philadelphia galleries, with the notable exception of Matisse's 'Joy of Life,' which will be hung in its own alcove."
UPDATE: A different view from NYT architecture critic Nicolai Ouroussoff:
"[T]he biggest problem with the design is not the fault of the architects: it has to do with the public the museum will serve. Part of the beauty of the Barnes Foundation is that it is so far removed from the tourist economy that drives major cities today. To get to it, visitors have to make an appointment, then take a train or a car to Merion, a half-hour from Philadelphia. These steps put you in a certain frame of mind by the time you arrive: they build anticipation and demand a certain commitment. They also serve as a kind of screening system, discouraging the kind of visitors who are just looking for a way to kill time.
"The new Barnes is after a different kind of audience. Although museum officials say that the existing limits on crowd size will be kept (albeit with extended hours), it is clearly meant to draw bigger numbers and more tourist dollars. For most visitors the relationship to the art will feel less immediate.
"And this, alas, is a problem no architect could have solved."
Amazing Stories
The LAT's Mike Boehm has an update on Steven Spielberg's stolen Rockwell, which I last wrote about, more than two years ago, here. Boehm reports that the case (between the owner at the time the work was stolen in 1973 and the dealer who sold it to Spielberg in 1989) is scheduled to go to trial, in federal court in Las Vegas, in January.
Monday, October 05, 2009
On purity
The Deaccessioning Blog points to an article in the Brandeis Hoot on the university's budget problems and sums it up:
"Possible solutions: dipping into its reserve fund, but that would only take the university through 2013. The other alternative: 'the sale of artwork from the Rose Art Museum.' According to The Hoot, even if Brandeis increases enrollment by 400 students (impacting class size and professorial teaching loads) and lays off 35 staff members, Brandeis will still face a budget gap."
This is another illustration of a point I've made here before, which is that it's all well and good to oppose the sale of art -- no one wants to see the art sold -- but anti-deaccessioning absolutists should acknowledge that there are costs to that stance. You can't sell the art and you can't raise admission fees and you can't move to Philadelphia. But something has to give.
So maybe you eliminate the volleyball team (or perhaps all athletic programs).
Or do you drop the philosophy department?
Or do a bunch of people lose their jobs?
Or maybe you close the museum another day each week.
Now it may be that keeping that 220th Eakins you have in storage is more important than any of those things. I'm not arguing here that it's not. I'm merely suggesting that you can't really evaluate whether a sale is justified until you fully come to grips with the costs of not selling.
"Possible solutions: dipping into its reserve fund, but that would only take the university through 2013. The other alternative: 'the sale of artwork from the Rose Art Museum.' According to The Hoot, even if Brandeis increases enrollment by 400 students (impacting class size and professorial teaching loads) and lays off 35 staff members, Brandeis will still face a budget gap."
This is another illustration of a point I've made here before, which is that it's all well and good to oppose the sale of art -- no one wants to see the art sold -- but anti-deaccessioning absolutists should acknowledge that there are costs to that stance. You can't sell the art and you can't raise admission fees and you can't move to Philadelphia. But something has to give.
So maybe you eliminate the volleyball team (or perhaps all athletic programs).
Or do you drop the philosophy department?
Or do a bunch of people lose their jobs?
Or maybe you close the museum another day each week.
Now it may be that keeping that 220th Eakins you have in storage is more important than any of those things. I'm not arguing here that it's not. I'm merely suggesting that you can't really evaluate whether a sale is justified until you fully come to grips with the costs of not selling.
"No one in their right mind brings a collection like that to a private home without security"
San Jose Mercury News columnist Scott Herold takes note of the art world's "odd reaction" to the Pebble Beach theft: "In my reporting, I've detected skepticism about aspects of the crime, particularly about the lack of insurance and the finding of a ransom note a few days after sheriff's deputies combed through the house."
Among those he talked to is Art Theft Central's Mark Durney, who says "says the experts he's talked with see a number of curious aspects to the case":
Among those he talked to is Art Theft Central's Mark Durney, who says "says the experts he's talked with see a number of curious aspects to the case":
"Durney points out that it's unusual, though not inconceivable, that a collection worth as much as $80 million would have been as little known as this one was. He also notes that the Pollock ... has never been put up for auction or public sale, so it's hard to judge its value. And last, he joins ex-FBI agent McShane in noting that it wouldn't make sense for collectors of this caliber to go without insurance, particularly when they are moving art."
Greg Allen has some further thoughts (see also here).
Heade-less
The St. Augustine Record has an update on this summer's deaccessioning by the St. Augustine Historical Society, mentioned earlier here.
"If arming guards is too hotly contested a solution, then what can be done to thwart violent art thefts?"
Art Theft Central's Mark Durney considers the question: "One solution may lie in police response time .... In every art theft case mentioned in this post, the armed thieves easily escaped the scene of the crime. If the police had been able to respond quicker, then the thieves' getaways may have been spoiled. Would it be feasible for museum security directors to coordinate with local police to have a greater officer presence in the neighborhood during the hours when the institution is most vulnerable to theft (opening/lunch/closing times)? Hopefully, this would shorten response time and also be a deterrent to potential thieves."
Saturday, October 03, 2009
"Nine years after the Barnes Foundation stunned the art world with a high-risk proposal to escape its litigious Merion neighbors ..."
"... by moving its renowned collection of Impressionist art to Philadelphia, it is getting ready to reveal its most closely guarded secret: what its new home will look like."
Philadelphia Inquirer architecture critic Inga Saffron previews this Wednesday's presentation to the Philadelphia Art Commission:
"People in art and architectural circles have been especially keen to know how the designers would resolve the challenging problem of re-creating the Barnes' distinctive gallery experience in a modern building in an urban setting. The sequence of the Barnes' Merion galleries and the arrangement for hanging the artwork have long been considered nearly as important as the artwork itself. They reflect the theories that the patent-medicine mogul Albert Barnes developed in the 1920s as he amassed the world's greatest assemblage of works by Cezanne, Matisse, and Renoir. Barnes considered the 'hang,' as museum experts call it, so fundamental that he stipulated in his will ... that the artwork could never be reorganized or moved. The foundation's battles with its Merion neighbors and the resulting financial insolvency caused the Barnes to reassess that clause. When foundation officials petitioned Montgomery County Orphans Court in 2004 to break Barnes' will and move the collection to Philadelphia, they did, however, promise to replicate the Merion building's floor plan and the hanging scheme."
Philadelphia Inquirer architecture critic Inga Saffron previews this Wednesday's presentation to the Philadelphia Art Commission:
"People in art and architectural circles have been especially keen to know how the designers would resolve the challenging problem of re-creating the Barnes' distinctive gallery experience in a modern building in an urban setting. The sequence of the Barnes' Merion galleries and the arrangement for hanging the artwork have long been considered nearly as important as the artwork itself. They reflect the theories that the patent-medicine mogul Albert Barnes developed in the 1920s as he amassed the world's greatest assemblage of works by Cezanne, Matisse, and Renoir. Barnes considered the 'hang,' as museum experts call it, so fundamental that he stipulated in his will ... that the artwork could never be reorganized or moved. The foundation's battles with its Merion neighbors and the resulting financial insolvency caused the Barnes to reassess that clause. When foundation officials petitioned Montgomery County Orphans Court in 2004 to break Barnes' will and move the collection to Philadelphia, they did, however, promise to replicate the Merion building's floor plan and the hanging scheme."
Friday, October 02, 2009
"My immediate goal is that this auction be stopped"
A challenge to a planned deaccessioning by the Blanden Art Museum in Iowa. A local philanthropist isn't happy with how the sale is going down:
"That conviction centers on one specific thing: the absence of a list of items to be sold. When [the philanthropist] asked to see one, he reportedly was rebuffed. 'Miss Skove [the museum's Director] refused to tell me what was going to be sold,' he said. Skove responded Thursday: 'There is a list. It's 371 items exactly.' She said there is no reason to publish a list of the items being sold because her experience and education - she has a master's degree in art history - qualify her to make the culling decisions. 'The list will not be published before the auction,' she said."
"That conviction centers on one specific thing: the absence of a list of items to be sold. When [the philanthropist] asked to see one, he reportedly was rebuffed. 'Miss Skove [the museum's Director] refused to tell me what was going to be sold,' he said. Skove responded Thursday: 'There is a list. It's 371 items exactly.' She said there is no reason to publish a list of the items being sold because her experience and education - she has a master's degree in art history - qualify her to make the culling decisions. 'The list will not be published before the auction,' she said."
"Then there's the snobbery problem" (UPDATED)
Benjamin Mercer on the "suprising[ly]" "uncomfortable" Q&A following Tuesday night's showing of The Art of the Steal at the New York Film Festival:
"But about halfway through the Q&A, many [in the audience] began to express their displeasure with the film. They saw a measure of condescension to, perhaps even contempt for, the museumgoing public in the film, which features a talking head referring to a Barnes Foundation relocated more centrally to Philadelphia as a 'McBarnes,' and another chastising a young man who spent only an hour amid the masterworks at the foundation once it was opened to the public."
And Howard Feinstein concedes that "the topic is so compelling," but says "formally, the film is nothing."
UPDATE: More on the "vibrant" Q&A from indieWIRE's Brian Brooks: "'If you want to be spoonfed your art, then that’s fine,' said executive producer Lenny Feinberg. 'But there’s something to be said about understanding and viewing art on a higher level.'"
"But about halfway through the Q&A, many [in the audience] began to express their displeasure with the film. They saw a measure of condescension to, perhaps even contempt for, the museumgoing public in the film, which features a talking head referring to a Barnes Foundation relocated more centrally to Philadelphia as a 'McBarnes,' and another chastising a young man who spent only an hour amid the masterworks at the foundation once it was opened to the public."
And Howard Feinstein concedes that "the topic is so compelling," but says "formally, the film is nothing."
UPDATE: More on the "vibrant" Q&A from indieWIRE's Brian Brooks: "'If you want to be spoonfed your art, then that’s fine,' said executive producer Lenny Feinberg. 'But there’s something to be said about understanding and viewing art on a higher level.'"
Thursday, October 01, 2009
Obscene
The New York Times: "The Richard Prince exhibition 'Spiritual America,' which was planned to open Thursday at the Tate Modern museum in London, was withdrawn Wednesday, following a warning from Scotland Yard that its inclusion of a nude photograph of Brooke Shields taken when she was 10 years could violate obscenity laws."
"Pebble Beach Theft Gets Weirder"
The Art Market Monitor has the details. A ransom note and death threats are involved. (Background here.)
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